Trash on the Beach
and Constitutional Law





If you go back and ask the class what case or cases will be the hardest to prosecute, most students will answer:

(1) The diamond ring,

(2) the clam shells from some other beach; and

(3) the graffiti on the rock.

[You may want to mention that there was a previous case where someone was caught having left trash on the beach who admitted it was trash (so its being trash was not at issue) but claimed he had not meant or intended to leave it, but left it accidentally and so said he should not be fined the $50. The judge ruled, however, in his case that the ordinance only stated that there was a $50 for "leaving" trash on the beach. It did NOT read that there was a fine for "THROWING" trash on the beach or "TOSSING" trash on the beach. "Throwing" and "tossing" imply intent, BUT the city aldermen (there were no women on the board) discussed this very issue when they drafted the ordinance and chose NOT to use the words "throwing" or "tossing" because everyone felt a prosecutor should not HAVE TO SHOW that the trash was left intentionally on the beach. BUT you probably do not need to mention this at this stage since it's no longer likely to come into it. But you might. And since you might, I thought to mention it. If I were filling out a form, I might not, might not mention it. But since this is part of a somewhat subversive effort, that is, a way of subverting form, all forms, it's just the thing to "throw," perhaps I should say "toss" in.]

I'm sure there was disagreement in the class over what counted as trash but that is not important to bring out. Disagreement over what's trash and what's not trash will be one of those differences that make no difference when it comes to showing them that there was more than one technique, more than one way of characterizing the facts.

What's important to bring explicitly to light are the different methods by which the students defined, say, the diamond ring and the empty coke can as trash. It's this difference that's important to bring out since the different methods for characterizing something as trash played no small role in determining what they judged THE FACTS OF THE CASE to be, in identifying "THE FACT-PATTERN" and making it appear as if they were in greater disagreement than they may have been.

I'm also willing to bet there was in both classes, the Harvard class and Phil 117, a similar break-down of ways to characterize the various items that had been left on the beach.

Someone must have said, the diamond ring is not trash: It belongs in "lost and found?"

No?

And someone said "clam shells" are not trash; they're not "trashy" In the same way an empty coke can is. Clam shells belong on a beach even though they do not come from this beach.

Ask the students which cases will be hardest to prosecute and convict and the answer, surely, will be the diamond ring, the clam shells and the graffiti but under what method of characterizing something as trash are these judgments being made?

They're using different methods for characterizing what's trash and what isn't And here's where some philosophy can help. It can help to distinguish the methods, explain the differences and define the different methods of characterization..

What's worth focusing on, in looking somewhat closely at, is the underlying issue of method: not the proposed result, not the substance of the arguments, but rather the way the arguments themselves are formulated, to see and ultimately be able to identify the kind of arguments that the students made in deciding what was trash and what was not and by doing so, notice that judges in deciding cases make the same kind of arguments as well as adopt similar methods.

Here is an example from Belinda's analysis from the Harvard class:

[BELINDA: I thought that possibly the diamond ring is the one that is least likely to be considered trash. When I think about trash, I think about something that is valueless. And a diamond ring has value.]

Belinda here approaches the hypothetical by trying to define a necessary condition for something to be trash - that it is "valueless" - and then looking to see which of the items fails to satisfy that condition. If she had time to refine her point, she probably would say that "trash" is not, strictly speaking, something of no value at all, but it is something of very little value - so that the used paper back book, which after all probably has some value, can still be trash, but a diamond ring cannot be.

Here is another example, this one from Scott's defense of why he thinks it would be hardest to prosecute someone for putting graffiti on the rock:

[SCOTT: Because leaving trash implies you're leaving something, a physical thing. Now the rock was already there. The graffiti you could say you're leaving paint to let dry on the rock. But that's, I just think that is stretching it.]

Here, Scott defines "trash" as necessarily being a "physical something"; he then considers the list of five items and decides that since the rock was already on the beach, the only "thing" that was left in that case was the paint, which is much less thing-like than any of the other items.

In its substance and in its conclusion, Scott's argument is very different from Belinda's. Some might consider one persuasive, some the other. But in their form, the two arguments are very similar. Belinda and Scott each - in this part of what they have to say - try to define a concept of "trash" in such a way that it is possible to list one or more necessary conditions which all members of the category must satisfy; when they then find something that does not have the necessary feature, they exclude it from membership in the concept, and from thereby falling under the rule. Perhaps, if we followed this approach further, it would also be possible to list the conditions that were not only necessary, but also sufficient to make something "trash."

But this approach to characterization has two important features.

First, the terms of the rule are treated as making reference to independent, self-standing concepts. "Trash" has a meaning quite apart from the ordinance, and it is that meaning that has been adopted by the rule. Second, these concepts can be defined by relatively sharp features, which all members of the class possess. In short, they have used an abstract, or formal, definitional approach to the problem of characterizing facts in terms of legal categories.

But this is not the only possible approach - nor indeed the only approach exhibited in the discussion we have witnessed. Larry, for example, rejects not only Scott's conclusion, but the approach it exemplifies:

Scott, in contrast, thinks that that "stretch" is a stretch too far for the words used in this ordinance.

But characterizing facts according to the purpose of the rule whose application is in question, is a common technique. Indeed, so common, that it often occurs without any explicit mention being made of it.

Consider, for example, Eduardo's defense of his choice of the clam shells:

[EDUARDO: First of all: because usually you find clams on the beach. And a point could be made that they did not destroy the environment of the beach in any way.]

This seems to be just a statement of considerations; but why are the considerations relevant? Probably Eduardo considers them relevant because he has in his mind the same point Larry made explicitly: that the purpose of the ordinance is "to keep the beach clean and in its natural state." But while Larry used the purpose to "stretch" the words of the ordinance, Eduardo is using the same purpose to shrink the scope of the terms. He would have no doubt that empty clam shells on a dining-room table were "trash," but in a rule whose purpose is to keep a beach clean, matters are different.

Of course, we could stay within this framework of looking for the purpose of the rule, and disagree as to what we understand that purpose to be. (1) Was this ordinance passed as a measure for environmental preservation, and supposed to keep the beach in its natural state?

(2) Was it passed instead as a sanitation measure, and intended to keep the beach free of rotting material or sharp fragments?

(3) Or was it passed from aesthetic motives, so that the main point is that the beach should continue to look like a pretty beach?

Graffiti is certainly not natural; but it is also not unhealthy; and it is arguable, as Aisha said, that "a lot of people find that artistic." So it would matter for this item, and probably for some of the other items, which purpose we specified.