Paradox of Self-Amendment by Peter Suber In 1967 the Supreme Court struck down a Texas statute that barred partners in crime from testifying for one another, and thus permitted mutual corroboration "for what it is worth". Washington v. Texas, 388 U.S. 14 (1967). The statute, and many like it in other states, was evidently designed to prevent the simple mutual proof of two false or uncertain propositions, an evil to be feared because it is made attractive by the self-interest of the witnesses. But the Supreme Court held, in effect, that the circle does not prove falsehoods without the help of a jury, and that juries are not likely to be fooled and in any event are entitled to believe. P.2. Arguments for Which Winning is Losing. Occasionally a party argues in such a way that winning, ironically, means that she loses or should lose. Sometimes this is due to counsel's short-sightedness in constructing arguments, but sometimes it is due to a logically perverse set of circumstances from which counsel must try to escape. The best examples of the latter are Protagoras v. Euathlus and State v. Jones. Here are some examples of the former. The Court of Appeals of New York once held, in a case of first impression, that infants had no cause of action when born maimed for injuries sustained while a fetus. Dobner v. Peters, 133 N.E. 567 (1921). Thirty years later the same court wanted to reverse itself. It argued that Dobner was no longer good law because the "chief basis" of its holding —the lack of precedent— no longer existed. Woods v. Lancet, 102 N.E.2d 691 (1951). The precedent that then existed was Dobner! Many cases present roughly the following situation. When a parent dies, a child contests the validity of her parents' marriage in order to cut out the surviving spouse and increase her own share of the decedent's estate. The argument succeeds, the marriage is found void, but the child is thereby found illegitimate and (in some jurisdictions) ineligible to inherit. Beamish v. Beamish, 9 H.L.C. 274, 11 Eng. Rep. 735 (1861).[Note 37] This situation is more common when the dead parent is the father, since it is more common for states to bar illegitimate children from inheriting from their fathers (absent an acknowledgment of paternity or a posthumous paternity action) than from their mothers. The film, The Amazing Dr. Clitterhouse, presents an argument for which losing, apparently, is winning. Edward G. Robinson plays a doctor who leads a criminal band in order to study their physiology before, during, and after criminal actions. He eventually kills his rival, Humphrey Bogart, in order to avoid exposure and to test his own reaction to the ultimate crime. When caught he resists his lawyer's attempt to establish an insanity defense. After his lawyer argued insanity anyway, he took the stand and boldly asserted his sanity. The jury acquitted, saying that only an insane man would claim sanity in a murder case. The combat flyer, Orr, in Joseph Heller's Catch-22 lost by the same logic. Driven insane by combat, he was eligible for non-combat duty on the grounds of insanity. But he had to ask for it. Those who ask, however, encounter the legalistic "catch" that "anyone who wants to get out of combat duty isn't really crazy."[Note 38] Notes 1. I proposed this broad definition, and used it to govern the selections, in my "A Bibliography of Works on Reflexivity," in S.J. Bartlett and P. Suber (eds.), Self-Reference: Reflections on Reflexivity, Martinus Nijhoff, 1987, pp. 259-362. 2. The earliest version of this case is reported in Aulus Gellius, The Attic Nights of Aulus Gellius (c. 150 C.E.), trans. John C. Rolfe, 3 vols., Loeb Classical Library, Harvard University Press, rev. ed., 1946, vol. I, Book V, x, pp. 405-09. If the story is true, then this account was written roughly 600 after the events. (Nothing is known of Euathlus; Protagoras of Abdera lived from 480 to 410 B.C.E.) Diogenes Laertius repeats the story about a century later in his Lives of the Eminent Philosophers, trans. R.D. Hicks, Loeb Classical Library, G.P. Putnam's Sons, 1925, Book 9, Chapter 56, pp. 468-69. Different accounts of the case change the facts in small ways. The most salient changes to the logic and law of the verdict are the following. In Aulus Gellius, Euathlus paid half his fee before the lessons began, and made the contract to pay the other half. The contract stipulated that Euathlus would pay the other half "on the day when he first pleaded before jurors and won his case", which is much less ambiguous than "when Euathlus won his first case". After making the contract, Euathlus delayed in taking any cases and Protagoras sued from impatience. Euathlus knew he'd be better off hiring a lawer, but wanted the satisfaction of winning the suit and the argument. The case went to a jury, whose members postponed their verdict to "a distant day" fearing that any verdict would "annul itself". In "Dilemmas and Circles in the Law," Archiv für Rechts- und Sozialphilosophie, 51 (1965) 319-335, Fiori Rinaldi says that Protagoras initiated the contract, not Euathlus. Protagoras saw that Euathlus needed training but could not pay, and "came to his rescue by offering to give the necessary tuition...." Protagoras proposed that the contract turn on Eualuthus' first victory, making it difficult for Protagoras to decry the hardness or ambiguity of the terms. Rinaldi suggests (at p. 324) that the original Greek judge held for Euathlus. In Ilmar Tammelo's Outlines of Modern Legal Logic, Franz Steiner Verlag, 1969, p. 122, Euathlus "abstains from going into legal practice" after the completion of his lessons. In "Protagoras versus Euathlus: Reflections on a So-Called Paradox," Ratio, 19 (Dec. 1977) 176-80, Wolfgang Lenzen says that Euathlus contracted to pay "if and only if" he wins his first legal case. Although Lenzen's source of the paradox is J.L. Mackie, Truth, Probability and Paradox, Oxford University Press, 1973, p. 296, Mackie uses "when", not "if and only if". Lenzen says that after making the contract, Euathlus "does not dream of taking part in any court-case". 145