Paradox of Self-Amendment by Peter Suber F. The bootstrap doctrine Although "bootstrap" is a term used by lawyers to indicate many types of reflexivity, as a term of art "the bootstrap doctrine" designates a court's jurisdiction to determine its own jurisdiction. This means that if in some objective sense a court lacks jurisdiction over someone, the court may acquire jurisdiction over that person by ruling that it has jurisdiction.[Note 16] The bootstrap doctrine is a prudential and logical necessity. It deters frivolous appeals, disarms otherwise unanswerable objections, saves time and money, and prevents an infinite regress.[Note 17] As such the bootstrap doctrine is a good example of a benign circle, a form of self-justification that is not fallacious or unintelligible and that (while creating some dangers) is clearly preferable to the alternative. The de jure existence of the bootstrap doctrine also reveals that there is no "theory of types" in our legal system, at least in a court's judgments on its own capacities. G. Inferences drawn from the fact of the dispute Parties in disagreement usually debate irreflexively by proposing their own views and arguments and attempting to subvert those of the other side. Rarely do they cite the fact that a disagreement exists as a premise from which to infer a conclusion designed to settle the dispute. If sound, such arguments bypass the merits of the irreflexive reasoning in contention, and settle the dispute dialectically: the dispute, by virtue of being a dispute, ceases to be a dispute and becomes a conclusion. Divorce cases often hold that the fact that the parties are seeking divorce (or seeking it so vehemently) indicates that the marriage is dead, thus at least partly justifying the decree of divorce. In fault jurisdictions the same inference is more difficult to make, but is still often made: one of the spouses does not want a divorce and is contesting the proposition that the marriage is dead. In Zavin v. Zavin, 366 P.2d 733 (1961) an interesting twist occurs. The husband and wife each alleged outrageous fault by the other, but neither proved any fault. Their heated allegations unmistakably displayed a dead marriage. The court inferred that the marriage was truly dead, from which it inferred that some fault must have existed; but because no fault was proved, the court presumed equal fault. Under the doctrine of recrimination, equal fault prevents divorce, so the court denied the divorce. In the case of The S.S. Lotus (France v. Turkey), P.C.I.J. Ser.A., No. 10 (1927), the French steamship Lotus collided at sea with the Turkish collier Box- Kourt. In the dispute on liability that followed, France pointed to what it claimed was international customary law favoring its claim. But the Permanent Court of International Justice found that the national courts of the world were divided on the question at issue, and it inferred from this disagreement that there was no customary law at all on the issue. In short, France is wrong because the courts of the world disagree on whether France is wrong. Here the disagreement from which a conclusion is drawn is not that between the parties but between others on the same issue that divides the parties. In Nassoiy v. Tomlinson, 42 N.E. 715 (1896) the parties disputed whether Nassoiy's commission on a sale of land was 5% or 1%. Tomlinson had already paid 1% and didn't want to pay more. If Nassoiy's claim to 5% was "unliquidated", then his acceptance of the 1% would operate as a settlement of the entire claim. A claim is liquidated (roughly speaking) if the parties agree on its amount. The trial court gave the jury the question whether the claim was liquidated or unliquidated. The Court of Appeals reversed, holding that the question should not have gone to the jury at all, since the very dispute shows that the claim was unliquidated. It held in effect that a disputed question of fact should not go to the jury precisely for being a disputed question of fact of a certain type, namely, a dispute as to whether a claim was disputed. An activity sponsored by the state is "excessively entangled" with religion, and so violates the "establishment clause" of the First Amendment, if it causes some potential for political divisiveness by creating hostility in the excluded religious groups or encouraging them to compete for government favors. Lemon v. Kurtzmann, 403 U.S. 602 (1971). Can this potential for divisiveness be symptomized by a lawsuit against the state to cease some activity that touches religion? If it can, then plaintiffs win just by complaining; if it cannot, then the criterion is a bit misleading. In Bogen v. Doty, 598 F.2d 1110, 1114 (8th Cir. 1979) a group of citizens and taxpayers of St. Louis County, Minnesota, sought to stop the city board from opening its meetings with a prayer. The court said, "[t]he present litigation and the earlier attempts to seek rescission of the practice demonstrates the political divisiveness of the invocations....However, we do not see this divisive potential as being of the same caliber as...[that] forbidden in Lemon v. Kurtzmann." Sometimes it is even clearer that courts should draw conclusions from the fact of disagreement when they presently fail to do so. If a judge finds that no reasonable juror could have found for the prevailing party, she may overturn the jury verdict. If the original winner appeals the judge's action, an appellate court will decide whether the jury verdict was or was not so contrary to common reason that no reasonable juror could have held it. Sometimes appeals courts split on this question. When they do, it may seem reasonable for such judges to infer from their own disagreement that a reasonable jury could have found as it did find, but this is not the current rule. Moreover, this change would be difficult to implement. If the appellate judges polled themselves and found disagreement, then they could still only vote to uphold the jury if a majority of them voted to uphold it; sometimes this would require judges voting at the meta-level for an outcome they reject at the object level. But this happens even today when judges who dislike a rule of law nevertheless vote to uphold it on grounds like stare decisis. What if the appellate judges were unanimous that the jury should be upheld and thus disagreed only with the trial judge? If the judges disagree on their first vote and then vote to uphold the jury on the ground of their own disagreement, then what happened to the "reasonableness" of their 135