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Published online by Cambridge University Press: 08 January 2010
September 11, 2001 brought to legal awareness an issue that has long puzzled metaphysicians. The general issue is that of event-identity, drawing the boundaries of events so that we can tell when there is one event and when there are two. The September 11th version of that issue is: how many occurrences of insured events were there on September 11, 2001 in New York? Was the collapse of the two World Trade Center Towers one event, despite the two separate airliners crashing into each tower? Or were these two separate insured events?
1 Armstrong, David, Universals (Boulder, Colo.: Westview Press, 1989), at p. 139Google Scholar.
2 D'Israeli, Isaac, Curiosities of Literature, 1791Google Scholar.
3 The details on the attack on the Twin Towers were reconstructed and presented in USA Today, December 19, 2001, p. 1A, col. 2–3, pp. 3A-4A. The details on the exact nature of the collapse of the Towers are given in the Affidavit of Matthys P. Levy filed January 19, 2002, in support of Defendant's Motion for Summary Judgment.
4 Wall Street Journal, Nov. 2, 2001, pp. A-l, A-llGoogle ScholarPubMed.
5 See, e.g., the complaint of Swiss re filed October 22, 2001, paragraphs. 28, 46.
6 Quoted in Swiss Re complaint, supra note 5, paragraph 31.
7 The Australian Financial Review, 18 February 2002, p. 44Google Scholar.
8 SR International Business Insurance Co. v. World Trade Center Properties LLC, Silverstein Properties Inc. et al. Civil. No.OlCV12738(JSM), United States District Court for the Southern District of New York. The declaratory judgment action has been set for expedited trial on September 3, 2002. Wall Street Journal, Dec. 14, 2001, p. B-4Google Scholar; Wall Street Journal, Dec. 18, 2001, p. B-6Google Scholar.
9 Wall Street Journal, Nov. 2, 2001, p. A16Google ScholarPubMed.
10 Although nuanced differences in meaning between ‘occurrence’ and ‘accident,’ have been suggested, the tendency of the insurance cases is to equate the terms. See, e.g., Hartford Accident and Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.2d 895, 305 N.E.2d 907 (1973), where the New York Court of Appeals held there to be no distinction in meaning between ‘per occurrence’ and ‘per accident’ limitations in insurance policies. Accord, Truck Insurance Exchange v. Rohde, 49 Wash.2d 465, 469, 303 P.2d 659, 661 (1957). For some suggestions regarding the differences between such terms when the issue is the kind of risks covered (not howmany occurrences there were), see Stauffer Chemical Co. v. Insurance Co. of North America, 372 F.Supp. 1303, 1307 (S.D.N.Y. 1973) (‘occurrence’ a broader term than ‘accident’ in terms of the range of items covered).
11 Jacobellis v. Ohio, 378 U.S. 184, 197 (1961) (Stewart, J., concurring)Google Scholar.
12 Ashe v. Swenson, 397 U.S. 436 (1970) (concurring opinion)Google Scholar.
13 Johnson v. Indemnity Insurance Company of North America, 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.Ed.2d 704 (1959)Google Scholar.
14 Argued at length in Moore, Michael, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (Oxford: Clarendon Press, 1993), Chapters 12–14Google Scholar.
15 The line between supplying an omitted term by a default rule, and finding the meaning of an express term by an interpretive process, is a vague one. For present purposes it does not matter how the issue is characterized, because the desiderata of a good supplied term match those of a good interpretation of an existing term. See generally Farnsworth, E. Allan, Contracts, 3rd edit. (New York, Aspen Law and Business, 1999), pp. 461–6,499–501Google Scholar.
16 See Barnett, Randy E., The Structure of Liberty: Justice and the Rule of Law, (Oxford: Clarendon Press, 1998), pp. 29–83 (explaining the need for freedom of contract and what its limits should be)Google Scholar; Barnett, Randy E., “The Sound of Silence: Default Rules and Contractual Consent,” Virginia Law Review, Vol. 78 (1992), 821–911, at pp. 859–911 (explaining how default rules in contract law are consistent with contractual consent and should be chosen)Google Scholar.
17 See Farnsworth, supra note 15, at pp. 461, 499.
18 Id. at 462—3, 500–501.
19 The hypothetical expectations of the parties tend to be the reasonable expectations parties generally to such transactions would have had. See id. at 465–6, 500.
20 As in the case of different and equally reasonable expectations, the absence of any expectations may preclude there being an enforceable contract. See, e.g., Ruckles v. Wicklehaus, 2 H. and C. 906, 159 Eng. Rep. 375 (Exch. 1864).
21 See, e.g., Champion International Corporation v. Continental Casualty Co., 546 F.2d 502 (2d Cir. 1976), when the per occurrence limitation was involved for both the deductible and the upper limit on liability.
22 This is particularly true in cases like Champion, supra note 21, where both upper and lower limits are in issue. In such cases, if there are too many occurrences, then each separate loss falls below the deductible; if there is only one occurrence, there is only one recovery. The roofing company in Champion successfully avoided both the upper and lower limits by obtaining a finding of 27 occurrences for 27 batches of defective roofing materials—despite the materials going into hundreds of separate roofs, and despite the defect being one kind of defect of manufacture. One needs a common meaning to ‘occurrence’ in both the upper and lower limits of liability for this threading of the needle to be anything but arbitrary.
23 As one court has observed, a liability policy is just a kind of casualty policy, one where the event insured against is liability to another for her losses as opposed to the losses the insured suffer directly by fires, earthquakes, and the like. See Hyer v. Inter-Insurance Exchange of the Automobile Club of Southern California, 77 Cal.App. 343, 349, 246 Pac. 1055, 1057 (1926) (‘Liability insurance is but a branch of accident and casualty insurance.’)
24 The English doctrine is set out in Southern Staffordshire Tramways Co., Ltd. v. Sickness and Accident Assurance Association, Ltd., 1 Q.B. 402 (1891)Google Scholar. It is discussed and rejected in one of the leading American cases, Hyer, supra note 23.
25 One can, of course, write a ‘per claim’ version of per occurrence limitations in American insurance contracts; but the default rule is that unless otherwise specified, per occurrence limitations in American insurance contracts are per cause, not per claim. See, e.g., Champion International Corporation v. Continental Casualty Co., supra note 21, 546 F.2d at 505—6; Lamberton v. Travelers Indemnity Co., 325 A.2d 104 (Del.Sup.Ct. 1974), aff'd, 346 A.2d 167 (Del. 1975).
26 The ‘effects test’ is but another name for a ‘per claim’ or ‘per injury’ basis of coverage limitation. See, e.g., American Indemnity Co. v. McQuaig, 435 So.2d 414/415 n. 1 (Fla. App. 1983).
27 There are occasional adoptions of the English per claim (or ‘effects’) view in America. See, e.g., Anchor Casualty v. McCaleb, 178 F.2d 322 (5th Cir. 1949).
28 Davidson, Donald, Essays on Actions and Events (Oxford: Oxford University Press, 1980), at p. 179Google Scholar. See also Laurence Lombard, Events: A Metaphysical Study (London: Routledge and Kegan Paul, 1986), pp. 74–5Google Scholar.
29 In construing state statutory bans against multiply punishing ‘the same act,’ some courts have adopted a version of such a causal test of event-token individuation. See, e.g., People v. Neal,55 Cal.2d 11, 357 P.2d 839 (1960), where the California Supreme Court held two acts to be the same when they are the products of a single intention. See also Spinnell v. State,83 Tex. Crim. App. 418, 203 S.W. 357 (1918) (‘A series of shots may constitute one act... where they are fired with one volition.’) The same intent test of act-token individuation is discussed briefly in Moore, Act and Crime, supranote 14, at pp. 381–3.
30 In addition the Davidsonian test itself seems false as a test of event identity. See Moore, Michael, Act and Crime, supra n. 14, at p. 383Google Scholar; Brand, Myles, Intending and Acting(Cambridge, Mass.: M.I.T. Press, 1984), p. 69Google Scholar; Judith Jarvis Thomson, Acts and Other Events (Ithaca, N.Y.: Cornell University Press, 1977), p. 70Google Scholar.
31 Hyer, supra note 23, 77 Cal.pp. at 345, 246 Pac. at 1055.
32 Id., 77 Cal.App. at 354, 246 Pac. at 1059.
33 See cases cited, supranote 10
34 I put aside as too expansive the alternative, disjunctive combination of risk and loss.
35 On the criteria used in ordinary thought for honouring one item as “the cause” of some events see Feinberg, Joel, Doing and Deserving(Princeton: Princeton University Press, 1970), pp. 142–8Google Scholar.
36 For examples of simultaneous proximate causes, see Moore, Michael, ‘Causation and Responsibility,’ Social Philosophy and Policy,Vol. 16 (1999), pp. 1–51, at pp. 9–13, reprinted in Paul, E. F., Miller, F. D., and Paul, J., eds., Responsibility (Cambridge: Cambridge University Press, 1999)Google Scholar. For examples of successive proximate causes, see Moore, Michael, ‘The Metaphysics of Causal Intervention,’ California Law Review, Vol. 88 (2000), pp. 827–77, passimGoogle Scholar. Both articles are rewritten as Chapters 2–6 of Moore, Michael, Causation and Responsibility (Oxford: Oxford University Press, forthcoming)Google Scholar.
37 Arizona Property and Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 735 P.2d 451, 457 (1987)Google Scholar.
38 Id.
39 Insurance Corporation of America v. Rubin,107 Nev. 610, 818 P.2d 389 (1991).
40 McQuaig, supranote 26.
41 The overdetermination cases are discussed in Moore, ‘Causation and Responsibility,’ supranote 36, at pp. 9–13.
42 Anderson v. Minneapolis St. Paul and S. St. Marie R.R. Co.,146 Minn. 430, 179 N.W. 45 (1920); Kingston v. Chicago and N.W. Rv.,191 Wis. 610, 211 N.W. 913 (1927).
43 Aetna Casualty and Surety Company of Illinois v. The Medical Protective Company of Fort Wayne, Indiana,575 F.Supp. 901 (N.D. Ill. 1983). This federal district court better characterized the causal test as:
‘Whether the events in question are properly characterized as a single “occurrence” or multiple is a question of causation. A series of related injuries comprise a single “occurrence,” for the purposes of an insurance contract, where they all flow from a single cause.... Where each injury results from an independent cause(emphasis added), there are a series of occurrences.’ 575 F.Supp. at 903.
44 The insurance carrier lost in Aetna Casualty, supranote 43, because it could not prove the separate injuries to the eyes of the patient with each application of the prescribed medicine to the patient's eyes. Id.
45 North River Insurance Co. v. Huff, 638 F.Supp. 1129 (D. Kan. 1985)Google Scholar.
46 Newark Insurance Company v. Continental Casualty Company,46 App. Div.2d 514, 363 N.Y.S.2d 327 (1975). The ‘prima facie’ qualifier in the text, to leave open the possibilities discussed later in this section, that the second grounding was not causally independent of the first, and that there might be some common cause of both groundings in some general decision or policy of the captain or the ship owner.
47 The facts of Aetna Casualty, supranote 43.
48 Business Interiors v. Aetna Casualty and Surety Company,751 F.2d 361 (10th Cir. 1984).
49 Okada et al. v. MGIC Indemnity Corp., 608 F.Supp.383 (D. Hawaii 1985)Google Scholar, aff'd in part and rev'd in part,823 F.2d 276 (9th Cir. 1986).
50 Arguably, this point was obliquely recognized by the Appellate Division of New York when it stated that ‘events of injury or loss are one “accident” within the meaning of the policy provided that they are (1) completely indistinguishable in time and space, or (2) that one event caused the other.’ Hartford Accident and Indemnity Company v. Wesolowski,39 App.Div.2d 833, 333 N.Y.S.2d 289, 292 (1972), rev'd on other grounds, Wesolowski supranote 6. Such a disjunctive test seemingly utilizes what I shall (in § 4 infra)call a spatio-temporal test of event identity, uses the clumping of two events together as one if they are causally related (what I call in § 3 the causal chain doctrine), and sees that the test is disjunctive so that both questions must be answered to determine occurrence identity. Whether New York follows the causal test of occurrence identity is a matter requiring some discussion, pursued later in this § 3.
51 The multiple car collision cases are illustrative: if one piece of bad driving causes three collisions with three motorcycles, injuring five separate motorcycle riders or passengers, there is but one accident for insurance limitation purposes under the causal test. Truck Insurance Exchange v. Rohde, supra note 10. The New York Court of Appeals in another multiple collision case, Wesolowski, supra note 6, reaches a like result with its socalled ‘event test.’
52 See, e.g., Wesolowski, supra note 10; Rohde, supra note 10; Hyer, supra note 23; Olsen v. Moore, 56 Wis.2d 340, 202 N.W.2d 236 (1972)Google Scholar.
53 Rohde, supra note 10, 49 Wash.2d at 471, 303 P.2d at 662.
54 Johnson, supra note 13.
55 7 N.Y.2d at 226, 196 N.Y.S.2d at 681, 164 N.Ed.2d at 705.
56 7 N.Y.2d at 225–6, 196 N.Y.S.2d at 680, 164 N.Ed.2d at 705.
57 7 N.Y.2d at 224, 196 N.Y.S.2d at 679, 164 N.E.2d at 704.
58 Id.
59 Action verbs of English are often ‘causally complex’ in this way. See Moore, Act and Crime, supra note 14, chapter 8.
60 7 N.Y.2d at 230, 196 N.Y.S.2d at 684, 164 N.E.2d at 708.
61 Id.
62 See generally, Hart, H. L. A. and Honore, Tony, Causation in the Laiv, 2d edit. (Oxford: Clarendon Press, 1985)CrossRefGoogle Scholar; Moore, ‘Metaphysics of Causal Intervention,’ supra note 36.
63 Hyers, supra note 23, 77 Cal.App. at 347, 246 Pac. at 1056.
64 See note 56, supra.
65 See note 55, supra.
66 Hart, H.L.A. and Honore, Tony, Causation in the Law, 2d edit. (Oxford: Clarendon Press, 1985), pp. 79–80CrossRefGoogle Scholar. See generally Moore, ‘Metaphysics of Causal Intervention,’ supra note 36, at pp. 832–9, 844–52.
67 7 N.Y.2d at 230, 196 N.Y.S.2d a t 684, 164 N.E.2d at 708.
68 See the cases cited supra, note 51.
69 404 F.2d 880 (5th Cir. 1968).
70 Id. at 880.
71 E.g., the Supreme Court of Wisconsin in Olson v. Moore, note 52 supra, 56 Wis.2d at 349, 202 N.W.2d at 240.
72 See Moore, ‘Metaphysics of Causal Intervention,’ supra note 36.
73 See Hart and Honore, supra note 62, at pp. 74–7.
74 Johnson, supra note 13.
75 7 N.Y.2d at 229, 190 N.Y.S.2d at 683, 164 N.E.2d at 707.
76 Kuhn's of Brownsville v. Bituminous Casualty Co., 197 Tenn. 60, 270 s.W.2d 358(1954)Google Scholar.
77 See the discussion, text at nn.142—7, infra.
78 Wesolowski, supra note 10.
79 33 N.Y.2d at 174, 350 N.Y.S.2d at, 305 N.E.2d at 910.
80 7 N.Y.2d at 232, 196 N.Y.S.2d at 686, 164 N.E.2d at 709.
81 Rohde, supra note 10.
82 Moore, ‘Causation and Responsibility,’ supra note 36.
83 Moore, Causation and Responsibility, supra, note 36.
84 Smith, Jeremiah, ‘Legal Cause in Actions of Tort,’ Harvard Law Review, Vol. 25 (1911), pp. 103–28, 223–52, 303–27CrossRefGoogle Scholar.
85 Aristotle, Nicomachean Ethics, Bk. 1, ch. 3, in McKeon, Richard, ed., Introduction to Aristotle (Chicago: University of Chicago Press, 2d edit., 1973), pp. 347–8Google Scholar.
86 Explored in Moore, ‘Metaphysics of Causal Intervention,’ supra note 36, at pp. 834–9.
87 On the use of innocent agents and their status as non-intervening causes, see Kadish, Sanford, ‘Causation and Complicity: A Study in the Interpretation of Doctrine,’ California Law Review, Vol. 73 (1985), pp. 323–410CrossRefGoogle Scholar.
88 Id.
89 The evidence is summarized in the New York Times’ anniversary retrospective, Sept. 11, 2002Google Scholar.
90 See generally Hart and Honore, Causation in the Law, supra note 62, at pp. 74–7, 136–62, 326–40; Moore, ‘Metaphysics of Causal Intervention,’ supra note 36, at pp. 839–44.
91 As many courts do. See text supra at nn. 53—4.
92 Hart and Honore, Causation in the Law, supra note 62, passim, but particularly the ‘Preface to the Second Edition.’
93 Moore, ‘Metaphysics of Causal Intervention,’ supra note 36.
94 Id.
95 Id. at pp. 873–877.
96 Text supra at nn. 81–85.
97 Moore, ‘Metaphysics of Causal Intervention,’ supra note 36, at pp. 873–7, Epstein, Richard, ‘A Theory of Strict Liability,’ Journal of Legal Studies, Vol. 2 (1973), pp. 151–204, at 183–4CrossRefGoogle Scholar.
98 See note 69, supra.
99 See Moore, ‘Metaphysics of Causal Intervention,’ supra note 33, at pp. 841–2.
100 McQuaig, supra note 26.
101 Huff, supra note 45.
102 Okada, supra note 49.
103 Business Interiors, supra note 48.
104 Appalachian Insurance Co. v. Liberty Mutual Insurance Co., 676 F.2d 56 (2rd Cir. 1982)Google Scholar.
105 Business Interiors, supra, note 48, 751 F.2d at 363.
106 We might learn, for example, whether the two pilots ‘routinized’ their crashing of an airliner into a building by using the publicly available software simulating flying an airplane between and into the Twin Towers. See Time, special issue of September 11, 2001, p. 28Google Scholar.
107 Arthur Johnson Corp. v. Indemnity Insurance Co., supra note 13.
108 Cf. Lombard, supra note 28, at pp. 123–4, where Lombard considers the singleness of very large events like the melting of the Antarctic ice cap, or even the melting of all the world's snows.
109 Rebecca Dresser examines the sense of taking statements of personal identity over time in this numerical sense of identity. See Dresser, ‘Personal Identity and Punishment,’ Boston University Law Review, Vol. 70(1990), pp. 395–446Google Scholar.
110 I so construe most of such statements in Moore, Michael, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984), pp. 398–407Google Scholar.
111 A brief introduction to these principles of identity may be found in Brody, Baruch, Identity and Essence (Princeton: Princeton University Press, 1980), pp. 6–10Google Scholar.
112 Wilson, Neil, The Concept of Language (University of Toronto Press, 1959), at p. 39Google Scholar.
113 Follesdal, D., ‘Quantification into Causal Contexts,’ in Linsky, L., eds., Reference and Modality (Oxford: Oxford University Press, 1971), at p. 56Google Scholar.
114 See Armstrong, supra note 1.
115 See Moore, Act and Crime, supra note 14, at p. 80.
116 Id. at Chap. 13.
117 Id. at Chap. 14. In double jeopardy adjudication, this is called the ‘unit of offense’ question.
118 As we shall see, however, questions about the identity of particulars quickly involve one in questions about the identity of properties.
119 Baruch Brody, Identity and Essence, supra note 111.
120 For variations of this critique, see Moore, Act and Crime, supra note 14, at pp. 366–367; Lombard, supra note 28, at pp. 23–30; Brand, supra note 30, at pp. 59–65.
121 Moore, supra note 14, at p. 72.
122 For Brody's attempt to deal with this, see Brody, supra note 108, at pp. 20–23.
123 See Chisholm, Roderick, ‘Events and Propositions,’ Nous, vol. 4 (1970), pp. 15–24Google Scholar; Chisholm, ‘States of Affairs Again,’ Nous, Vol. 5 (1971), pp. 179–89Google Scholar; Chisholm, , ‘The Structure of States of Affairs,’ in Vermazan, B. and Hintikka, M., eds., Essays on Davidson Actions and Events (Oxford: Clarendon Press, 1985)Google Scholar; Chisholm, A Realistic Theory of Categories, (Cambridge: Cambridge University Press, (1996), pp. 71–8Google Scholar. See also Wilson, Neil, ‘Facts, Events, and Their Identity- Conditions,’ Philosophical Studies, Vol. 25 (1974), pp. 303–21Google Scholar; Sellars, Wilfred, ‘Actions and Events,’ Nous, Vol. 7 (1973), pp. 179–202Google Scholar.
124 For an excellent discussion of the distinction (and of the importance of making the distinction) between events and facts about events, see Bennett, Jonathan, Events and Their Names (Indianapolis: Hackett Pub., 1988)Google Scholar; Quinton, Anthony, ‘Objects and Events,’ Mind, Vol. 88 (1979), pp. 197–214, at p. 206Google Scholar.
125 Geach, Peter, Logic Matters (Berkeley: University of California Press, 1980), at p. 176Google Scholar.
126 Davidson, supra note 28.
127 Kim, Jaegwon, ‘On the Psycho-Physical Identity Theory,’ American Philosophical Quarterly, Vol. 3 (1966), pp. 227–35Google Scholar; Kim, ‘Causation, Nomic Subsumption, and the Concept of Event,’ Journal of Philosophy, Vol. 70 (1973), pp. 217–36Google Scholar; Kim, , ‘Events as Property-Exemplifications,’ in Brand, M. and Walton, D., eds., Action Theory (Dordrecht, Holland: Reidel, 1976)Google Scholar. Goldman, Alvin also adopts this view in his A Theory o f Human Action (Englewood Cliffs, N.J.: Prentice-Hall, 1970)Google Scholar. It is arguable that Kim's property exemplification view collapses into the facts/propositions view mentioned earlier, although that is not how Kim himself presents it. On this, see Steward, Helen, The Ontology of Mind (Oxford: Oxford University Press, 1997), pp. 19–27Google Scholar.
128 Quine, Willard, ‘Events and Reification,’ in Pore, E. Le and McLaughlin, B., eds., Actions and Events: Perspectives on the Philosophy of Donald Davidson (Oxford: Oxford University Press, 1983)Google Scholar; Quine, Word and Object (Cambridge, Mass.: MIT Press, 1960), p. 171Google Scholar; Quine, Theories and Things (New York: Columbia University Press, 1981), pp. 11–12Google Scholar. Davidson came to have some sympathy for Quine's view of events. See Davidson, ‘Reply to Quine on Events,’ in Le Pore and McLaughlin, eds., supra.
129 Lombard, supra note 27, at p. 220.
130 Aristotle, Physics. Book V, ch. 4 (227–621).
131 A modification of Donald Davidson's example, supra note 28, at p. 178.
132 Jonathan Bennett's example. Bennett, supra note 124, at pp. 127–8.
133 Id. at p. 127.
134 Id. at p. 104.
135 See Moore, supra note 14, at pp. 372–4.
136 Id. at p. 66.
137 It is doubtful that either Quine or Kim were even trying to capture any ordinary conception of event with their theories. On Kim's intention in this regard, see Steward, supra note 127, at p. 23.
138 Johnson, supra note 13.
139 Okada, supra note 49.
140 Id. at 388.
141 Id.
142 Kuhn's, supra note 76.
143 197 Tenn. at 61, 270 S.W.2d at 359.
144 197 Tenn. at 64, 270 S.W.2d at 360.
145 197 Tenn. at 65–66, 270 S.W.2d at 360.
146 The statement in the text is not quite true. One might construe the ‘componential’ theory of events of Judy Thomson and the late Irving Thalberg to hold there to be two distinct events here. See Thomson, supra note 30; Thalberg, Perception, Emotion, and Action (New Haven, Conn.: Yale University Press, 1977).
147 The explicit conclusion in double jeopardy contexts by a leading Kimian about events, Alvin Goldman. See his critique of my views in Goldman, ‘Action and Crime: A Fine-Grained Approach,’ University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1563–86Google Scholar, and my response, ‘More on Act and Crime,’ University of Pennsylvania Law Review, Vol. 142 (1994), pp. 1749–1840Google Scholar, revised and reprinted as chapter 6 of Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997), at pp. 318–29Google Scholar.
148 Lawrence Lombard adopts this view in his Events, supra note 28, at p. 168. Lombard's attempt to find metaphysically correct sizes for events is taken to task in Jonathan Bennett's Events and Their Names, supra note 124, at pp. 149–51, 155–56.
149 Arguably the view of Judy Thomson in her Acts and Other Events, supra note 30. See particularly id. at 78, where she accepts a ‘fusion principle’ according to which there always exist larger events that are the fusion of smaller events sharing any given property.
150 Lombard appears to believe the contrary, urging that there is a metaphysics of objects such that we can resist fusions such as the fusion of Jones saying ‘hello’ and Smith saying ‘hello’ into one larger event, Smith's and Jones’ greeting each other. For Lombard, Smith and Jones are separate objects, and the pair of them is in no sense an object, so there is no such event as a greeting between them. Similarly, although there can be a horse in the field, ‘the horse in the field’ does not name an object that can undergo change over an interval of time (and thus be a larger event). Events, supra note 28, at pp. 238–9. I shortly defend similar conclusions, but not based on any supposed true metaphysics of events and their objects.
151 See Moore, supra note 14, at p. 368.
152 Quine, Willard, Word and Object (Cambridge, Mass.: M.I.T. Press, 1960), at p. 126.Google Scholar
153 Named separately, incidentally, because the surveyor of the area in the 1890's had two lady friends at the time of his survey and did not wish to insult either one by naming the peak with just one of their names.
154 Lombard's kind of puzzle. Lombard, supra note 28, at pp. 123–4.
155 Putnam, Hilary, Representation and Reality (Cambridge, Mass.: M.I.T. Press, 1989), at p. 100.Google Scholar
156 Id. See also Putnam, , The Many Faces of Realism (La Salle, Ill.: Open Court, 1987), at pp. 18–19;Google ScholarPutnam, , Renewing Philosophy (Cambridge, Mass.: Harvard University Press, 1992), at p. 120.Google Scholar
157 Perhaps Putnam does not disagree with this, as a matter of common sense (not true metaphysics): ‘Certain things are paradigmatically objects, for example tables and chairs but … there is no fact of the matter as to whether … mereological sums are objects or not.’ Putnam, Renewing Philosophy, supra at p. 267.
158 Johnson, supra note 13.
159 7 N.Y.2d at 230, 196 N.Y.S.2d at 684, 164 N.E.2d at 708.
160 Moore, supra note 14, at p. 72.
161 Davis v. Herring, 800 F.2d 513 (5th Cir. 1986).Google Scholar
162 American Indemnity Co. v. McQuaig, supra note 26.
163 Kuhn's, supra note 76.
164 Newark Insurance, supra note 46.
165 46 App.Div.2d at 517, 303 N.Y.S.2d at 330.
166 In fact, one was a bow grounding and the other was a stern grounding.
167 Moore, Act and Crime, supra note 14, at p. 371.
168 Id.
169 Seward, supra note 127, at p. 68.
170 Id.
171 Kuhn's, supra note 76.
172 See text at n. 163 supra.
173 Johnson, supra note 13.
174 See USA Today, supra note 3, at p. 4A.
175 Id.
176 As in the classic contract formation case involving the good ships Peerless, Raffles v. Wichelhaus, 2 H. and C. 906, 159 Eng. Rep. 375 (Exch. 1864).
177 Some aspects of the individuation of intentions can be quite tricky, namely, those aspects having to do with the content of such intentions. But on the objects involved with intentions—persons—the issues are easy: absent a group mind, different person makes for different intention. See Moore, Michael, ‘Intentions and Metis Rea,’ in Gavison, R., ed., Issues in Contemporary Legal Philosophy (Oxford: Oxford University Press, 1987)Google Scholar, reprinted as chap. 11 of Moore, Placing Blame, supra note 147.
178 On al-Zawahiri's leadership role within al Qaeda, see ‘The Man Behind Bin Laden’, The New Yorker (Sept. 16, 2002), pp. 56–85.Google ScholarPubMed
179 Goodman, Nelson, ‘Seven Strictures on Similarity,’ in his Problems and Projects (Indianapolis: Bobbs-Merrill, 1976).Google Scholar
180 The facts of Business Interiors, supra note 48.
181 See note 51 supra.
182 See note 37, supra.
183 153 Ariz, at 134, 735 P.2d at 456.
184 Id.
185 153 Ariz, at 135, 735 P.2d at 457.
186 One of the issues in Brown v, Ohio, 432 U.S. 161 (1977), discussed in Moore, supra note 14, at pp. 320–323.
187 One of the relevant events in Johnson, supra note 13.
188 The relevant event in Kuhn's of Brownsville, supra note 76.
189 On the ability of definitions to reduce or at least reallocate vagueness, see Moore, Michael, ‘The Semantics of Judging,’ Southern California Law Review, Vol. 54 (1981), pp. 151–295Google Scholar, at pp. 196–7.
190 37 Tex. Sup. J. 561, 876 S.W.2d 842 (1994).
191 37 Tex. Sup.J. at——, 876 S.W.2d at 854.
192 Id.
193 Willis North America, WILPROP 2000 sm, p. 3.
194 Id. at p. 4.
195 Campbell, Keith, Abstract Particulars (Oxford: Basil Blackwell, 1990), p. 140.Google Scholar
196 WILPROP 2000 sm, p. 4.
197 See text at nn. 190–1, supra.
198 WILPROP 2000 sm, at p. 3.
199 E.g., Dickerson v. Union National Bank of Little Rock, 595 S.W.2d 677 (Ark. 1980).
200 Of the considerable literature on this topic, the classic article is Keith, Donnellan, ‘Reference and Definite Descriptions,’ The Philosophical Review, Vol. (1966), pp. 281–304.Google Scholar One of Donnellan's examples: ‘Smith's murderer is insane.’ Are we using the phrase, ‘Smith's murderer,’ to pick out some one person, Jones say, who may or may not actually be Smith's murderer? Or are we using the phrase to pick out whoever turns out to be the murderer of Smith?
201 Katz, Leo, Bad Acts and Guilty Minds (Chicago: University of Chicago Press, 1987), pp. 85–7.CrossRefGoogle Scholar
202 Id. at p. 85.
203 Alternatively, a spouse who is concerned to point out an example of a well-dressed man may well take the properties to fix the reference; she wants her husband to see someone dressed in just the outfit described.
204 On these two usages of definition, and on the law's frequent use of the second sort, see Moore, Michael, ‘Justifying the Natural Law Theory of Constitutional Interpretation,’ Fordham Law Review, Vol. 69 (2001), pp. 2087–2117Google Scholar, at pp. 2090–8; Moore, , ‘Do We Have an Unwritten Constitution?’, Southern California Law Review, Vol. 63 (1989), pp. 107–39Google Scholar, at pp. 127–30, 134–5; Moore, , ‘A Natural Law Theory of Interpretation,’ Southern California Law Review, Vol. 58 (1985), pp. 277–398Google Scholar, at pp. 291–301, 322–38, 340–1.
205 See Moore, ‘A Natural Law Theory of Interpretation,’ supra note 204, at pp. 293–300, 322–8, for an extended discussion of the definition of ‘death.’
206 Id.
207 Report of the President's Commission, ‘Defining Death: The Medical, Legal, and Ethical Issues in the Determination of Death,’ excerpted in Beauchamp, T. and Walters, L., ed., Contemporary Issues in Bioethics 2d edit., 1982), pp. 301–5.Google Scholar
208 ‘Judicial Humour—Construction of a Statute,’ Criminal Law Quarterly, Vol. 8 (1966), pp. 137–139.Google Scholar
209 Text at note 6, supra.
210 Reported in The Wall Street Journal, September 26, 2002, p. B4Google Scholar, col. 3–4; The New York Times, September 26, 2002.Google Scholar
211 Hilary Putnam argues that most words are used referentially (‘indexically’) so that definitions of them give only stereotypes, but not the meanings of such words. ‘The Meaning of “Meaning”,’ in Putnam, , Mind, Language, and Reality (Cambridge: Cambridge University Press, 1975), pp. 215–71.CrossRefGoogle Scholar
212 The initiative is quoted in People v. Skinner, 704 P.2d 752 (Cal. Sup. Ct. 1985).
213 Id.
214 The tale of witchcraft is nicely told by Leo Katz in his Bad Acts and Guilty Minds, supra note 201, at pp. 82–96.
215 Another example of attempting to use philosophy in the resolution of particular legal disputes is my attempt to bring the considerable literature on deontology to bear on Israel's practice of torturing terrorists possessing potentially life-saving information. Moore, , ‘Torture and the Balance of Evils,’ Israel law Review, Vol. 23 (1989), pp. 280–344Google Scholar, reprinted in Moore, , Placing Blame: A General Theory of Criminal Law (Oxford: Oxford University Press, 1997)Google Scholar, chap. 17.