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SJC-13138 Tamara Lanier V President
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and Fellows of Harvard College and Others.
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Okay attorney Koskoff.
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Yes, thank you, madam Chief Justice.
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May I please the court,
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very privileged and honored to be here today
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on this truly remarkable case.
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Oh, I can take my mask off too.
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(chuckles)
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That's a relief.
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And I wanna thank the court for hearing this case.
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There will not be another one like it in your lifetimes
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or your descendants lifetimes,
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most likely we hope.
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I would ask the court to take a look at AV1053.
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This is a part of our complaint
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and it bears a very poor quality photograph
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that is meant to depict this book.
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And I know that this isn't the largest photograph,
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but we do cite to it in our brief.
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And I want you to take a look at the cover of this book.
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If I can tell you you're gonna (indistinct)
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I don't know what's worse.
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The version you have or trying to see
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it from there but I can tell you that this is a photograph.
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What was called a daguerreotype of a human being.
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And if I were a Harvard scientist,
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and I told you, the man on this cover
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was a brick layer.
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You would see him as a brick layer.
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If I told you that he was a distance runner,
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you would see this man as a distance runner.
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If I told you he was a slave,
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you would see him as a slave.
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And if I were a Harvard scientist,
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and I told you this man was a doctor,
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it might be a tough call for some of you.
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Why would it be a tough call?
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Why?
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Because it would pit two biases that are very much in play
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in this case against one another.
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One bias, is the bias this court references
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the unconscious bias that runs in the bloodstream
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of this country that we grew up with.
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The other bias is a hidden,
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is even more hidden bias,
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which is the bias that a lot of people
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have, which is a favorable bias.
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A bias for Harvard,
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a bias that some of us also grow
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up having learning about Harvard.
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So we would be conflicted by these biases.
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And I dare say that most people would go, a lot of people.
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I don't know if everybody would, a lot of people
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would go with doctor that's how strong
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the biases for Harvard, whether or not it was true or not.
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And if I told you that there was in the moments
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before this photograph was taken,
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this man was raking leaves.
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And he was asked to come in for a photograph.
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And I were a Harvard scientists.
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You would believe that if I told
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you who he was posing willfully for the photograph,
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you would believe it.
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Photographs capture a picture in time,
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but they can distort and a lie
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because this man is really none of those things
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that I just mentioned.
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This man was a great, great grandfather
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of my wonderful client to Tamara Lanier.
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He was a human being, he wasn't invisible.
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His name was Papa Renty.
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And what you wouldn't know if I were a Harvard scientist
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telling you about this man,
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is that he ran religious ceremonies among the enslaved,
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which was punishable by a beating or whipping.
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You wouldn't know that he taught himself to read.
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You wouldn't know that after his emancipation,
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after years and years of servitude that he went to vote,
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you would know none of these things.
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But tomorrow and when you hear new these things.
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And like you would...
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Like we would, many of us would trust Harvard
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to give us the straight story
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so too did Tamara Lanier.
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And when she was in a conference,
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take a look at AV1053189
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that's paragraph 189 of our complaint, okay?
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So this tells you everything you need to know
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I think about the case.
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Well, I think we need to understand the property right.
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So can you focus in on that for us?
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Because we're deciding a legal case
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in a complicated area of law,
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and I'm not sure I understand how this is a property right.
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I understand that the Garret type itself is property,
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but I don't understand how your client
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gets a property right in that, will you help us understand-
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Absolutely-
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And precisely to-
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Completely we agree that.
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So the property rights are...
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When we think of property rights,
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I think traditionally as sort of very square things.
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There's replevin and we learned law school replevin
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conversion and these really sort of very cookie cutter
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type things.
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But in reality property rights is a bundle of rights
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and it involves relationships among a physical
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object often, but oftentimes not a physical object
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intellectual property, at melody, right?
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Things that can't be seen, but they can be heard.
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There's some argument
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isn't there also that property rights,
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we all have a property right in our body.
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Exactly, and if you think about a property right,
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it's closely related or maybe not an identical twin,
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but a fraternal twin of rights of privacy,
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we have they often are spoken of together.
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So the right of-
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But isn't a right of privacy.
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I'm sorry.
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Isn't that a torque right?
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Yes, it is.
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Well it's-
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And that's important if we're...
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I understand there's a right of publicity
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about photographs and a right of privacy,
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but again I'm not sure how you convert
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those into property rights.
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Can you...
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Again, I think you'd need to be specific here to be helpful.
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I see the court struggling and it is.
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It is these rights that the property rights
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gets into a very...
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Can get into a very fuzzy area.
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And I'll answer it this way, property rights,
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I don't...
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That the privacy right
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part of property rights is a consideration,
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not an action in of itself.
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So one of the things to consider
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is if you beat me up and you hack off my arm, right?
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You've taken something for me in a forceful way,
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you stolen my property, my left arm,
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hopefully 'cause that's my non-dominant,
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but you have stolen something from me, right?
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And we don't normally think of an arm necessarily
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as property.
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If you take me and you steal
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me from my home against my will, and you subject me to a-
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Again, that's very clear.
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If I take you and cut off your arm,
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not only have I engaged in criminal behavior,
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but I've also engaged in a torture.
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But again convert all of this into a property right,
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that you can pass on to your great grandchild
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that I need to better understand.
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Okay and I'm gonna use your paradigm
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there because it was perfect.
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And really the question is what is the property,
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right in this case, under these circumstances?
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And the circumstances dictate
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property rights all the time.
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In this case tort a very Peyton,
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very severe tort,
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several torts were committed against these two...
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Against his father and this daughter.
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And we could make a list of 20 torts
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that were committed, right?
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It was wrongful to take them to still-
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So lets just in the interest of time,
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can see that there were torts committed
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against these individuals
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who's daguerreotypes for taken.
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How do you translate those torts into a property right
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for your client this many years later?
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Well it's the parties don't agree on much,
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but the parties agree that the rights of Renty
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and Delia are the rights of Tamara Lanier
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in terms of property.
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And would you say that, is there any issue
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with regard to whose rights are superior
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Harvard's or Renty and Lanier?
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Yes right and right now
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there has to be because we don't have a record
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of in front of us that tells us what Harvard's
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claim is to these and we're very curious
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about that, what their claim could be.
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Though my understanding is there's not much in the record
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regarding provenance of the...
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On how they kept it.
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Is right and this is of course,
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a motion to dismiss our case.
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So they haven't had to state their claim.
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And what kind of...
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What's the standard on a motion to dismiss?
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Well it would be...
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I mean we would take the light most favorable
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to sustaining our cause of action
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and to proceed to develop a full record.
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Well, but will the trial,
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the motion judge used a standard of does it plausibly
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suggest there's an entitlement to relief.
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Right, I mean, that's-
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That's a pretty low standard.
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It's an extremely low standard.
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We all are familiar I think with some version
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of the standard, which is the law favors trials
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on their merits.
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And dismissing a case is a very severe sanction
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on a record that is really built on simply
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an allegation, so-
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Ken but you didn't really answer
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Justice Wendlands' question,
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which is, okay so those were torts or crimes committed
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against the ancestors.
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I completely understand that.
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How does that can convert it into a property right
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for the descendants?
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'Cause that's I don't understand that tort,
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do those types of torts survive-
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Well the way-
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In tort law.
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I mean, I understand it's like a legal distinction,
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but that's sort of what we do.
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So the court is looking for some clarity on...
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Well, because the original...
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So we're talking about a time period,
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that was obviously before the enactment
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of the 13th and 14th Amendments, where these individuals,
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as human beings had no rights to property right.
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But we're conceding,
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we're rewriting history a little bit
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where we understand that those were towards
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or criminal acts against the two ancestors.
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We're trying to understand how you convert
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that into a property right
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for your client 150 plus years later.
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Well, there's no...
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But the parties agree that the rights of Tamara Lanier
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are those of that she inherits those rights.
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Because the part...
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Because we all know that that Renty and Delia
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were foreclosed from passing on their property
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in the first place, because-
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So you'd argue,
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you'd really be making this argument and equity?
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Well that's an (indistinct)
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there's a lot of (indistinct).
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We can't really rely on our traditional property law here.
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Well, I think I wanna just go back
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'cause I'm not sure Justice Cypher
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if I actually really-
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Well, I don't know the maybe Justice Wendlands
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knows the answer.
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I just don't know the answer.
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If you have to convert a toward into property
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'cause torts don't survive and pass on to descendants
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the way property rights do, tort rights.
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So somehow there needs to be some conversion
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into an inheritable right.
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So I'm just trying to understand how that works.
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But property...
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First of all, property law is a aspect of tort law,
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and they're not distinct entities in the same...
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The same considerations go into resolving a property claim.
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For example, what is the relationship of the parties
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00:13:48.030 --> 00:13:50.210
and what are the (indistinct)
270
00:13:50.210 --> 00:13:53.660
what is the conduct of the parties in relationship
271
00:13:53.660 --> 00:13:57.444
to a given a piece of property right?
272
00:13:57.444 --> 00:14:01.920
So I just wanna make sure that we're on the same page,
273
00:14:01.920 --> 00:14:06.320
that you have the big umbrella of tort law,
274
00:14:06.320 --> 00:14:09.430
and within that lies property law
275
00:14:09.430 --> 00:14:14.430
and the same act, the same fundamental principles govern
276
00:14:14.530 --> 00:14:17.580
one principal very much in play here is that the wrongdoer
277
00:14:17.580 --> 00:14:19.910
can never be rewarded for their wrongdoing.
278
00:14:19.910 --> 00:14:23.223
That would turn tort law on his head, and-
279
00:14:24.570 --> 00:14:28.570
Your position is that the ancestors,
280
00:14:28.570 --> 00:14:30.910
the tort committed against the ancestors
281
00:14:30.910 --> 00:14:33.347
in taking the daguerreotypes types,
282
00:14:33.347 --> 00:14:38.347
made them the owners of the daguerreotypes.
283
00:14:38.420 --> 00:14:43.420
And that therefore the current plaintiff
284
00:14:44.290 --> 00:14:46.690
is the owner of the daguerreotypes,
285
00:14:46.690 --> 00:14:48.750
Is that right?
The part two,
286
00:14:48.750 --> 00:14:51.502
yes one and a half out of two.
287
00:14:51.502 --> 00:14:52.335
(laughing)
288
00:14:52.335 --> 00:14:55.031
(indistinct) tell me why (indistinct).
289
00:14:55.031 --> 00:14:55.980
So you got this.
290
00:14:55.980 --> 00:14:57.542
So on the second part of the question,
291
00:14:57.542 --> 00:15:00.040
'cause I think we're talking about two questions.
292
00:15:00.040 --> 00:15:02.200
One is what is the original property right
293
00:15:02.200 --> 00:15:03.400
of Renty and Delia?
294
00:15:03.400 --> 00:15:08.400
The second question is how does that relate
295
00:15:08.820 --> 00:15:12.020
to Tamara Lanier rights to that property?
296
00:15:12.020 --> 00:15:16.313
The second question is not in dispute among the parties.
297
00:15:16.313 --> 00:15:20.550
We agreed the threshold question is Renty and Delia
298
00:15:20.550 --> 00:15:21.850
has rights to the property.
299
00:15:21.850 --> 00:15:25.160
And that if Renty and Delia had at least a possessory right
300
00:15:25.160 --> 00:15:27.500
to answer, I think justice Cypher
301
00:15:27.500 --> 00:15:30.030
you asked about what about...
302
00:15:30.030 --> 00:15:31.650
What's Harvard's claim?
303
00:15:31.650 --> 00:15:34.260
And so that would be at a minimum a possessory right
304
00:15:34.260 --> 00:15:37.690
we're arguing 'cause two or more parties
305
00:15:37.690 --> 00:15:39.900
can have a possessory interest
306
00:15:39.900 --> 00:15:41.320
in a piece of property right.
307
00:15:41.320 --> 00:15:43.720
So you believe Harvard's conceding
308
00:15:43.720 --> 00:15:48.680
that whatever rights the ancestor had the plaintiff has?
309
00:15:48.680 --> 00:15:50.873
I think that's in our papers.
310
00:15:52.750 --> 00:15:55.840
But I do wanna get back to that we often think
311
00:15:55.840 --> 00:15:58.100
of a thing of a property right,
312
00:15:58.100 --> 00:16:02.800
a property being exchanged for something of value,
313
00:16:02.800 --> 00:16:04.740
typically cash, right?
314
00:16:04.740 --> 00:16:07.240
But we need to get away from that construct
315
00:16:07.240 --> 00:16:10.460
because it's too restricted
316
00:16:10.460 --> 00:16:12.560
properties often not exchanged for cash.
317
00:16:12.560 --> 00:16:14.880
What if we don't look at it that way and look
318
00:16:14.880 --> 00:16:19.880
at this property as I think you argued, it was a fruit.
319
00:16:20.620 --> 00:16:23.910
A fruit, in the papers we call it a fruit or a spoil of-
320
00:16:23.910 --> 00:16:25.970
But it also be an instrumentality
321
00:16:25.970 --> 00:16:30.970
in that Dr. (indistinct) was going to provide evidence
322
00:16:31.800 --> 00:16:33.030
for his theory.
323
00:16:33.030 --> 00:16:36.200
Exactly, so it was a thing of value.
324
00:16:36.200 --> 00:16:40.231
First of all when we typically get our photographs taken,
325
00:16:40.231 --> 00:16:43.287
they're taken of us not from us, right?
326
00:16:43.287 --> 00:16:45.250
They don't take anything from us.
327
00:16:45.250 --> 00:16:47.460
They don't abuse our people,
328
00:16:47.460 --> 00:16:49.820
photographers don't typically or hopefully abuse
329
00:16:49.820 --> 00:16:51.850
us to get photographs.
330
00:16:51.850 --> 00:16:53.390
They're not taking anything of value
331
00:16:53.390 --> 00:16:57.897
from us but if ever there was a taking of value,
332
00:16:57.897 --> 00:17:00.638
it was the taking of Renty and Delia
333
00:17:00.638 --> 00:17:04.730
in these abusive and torturous circumstances.
334
00:17:04.730 --> 00:17:09.060
So Renty and Delia gave up something of value,
335
00:17:09.060 --> 00:17:10.550
they gave up there...
336
00:17:11.409 --> 00:17:13.470
And to answer your the issue of privacy
337
00:17:13.470 --> 00:17:14.763
and the close relationship,
338
00:17:14.763 --> 00:17:17.870
they were falsely imprisoned,
339
00:17:17.870 --> 00:17:20.208
their rights of privacy and not talking with a big P
340
00:17:20.208 --> 00:17:21.960
in terms of the cause of action.
341
00:17:21.960 --> 00:17:25.340
I'm talking about as a consideration for these...
342
00:17:25.340 --> 00:17:29.500
For something of value was taken from them.
343
00:17:29.500 --> 00:17:31.664
And that is so much more valuable
344
00:17:31.664 --> 00:17:33.680
than the typical customer
345
00:17:33.680 --> 00:17:36.950
back then which would be and we have to speak frankly,
346
00:17:36.950 --> 00:17:40.690
a white family who would go in, they wouldn't be stripped.
347
00:17:40.690 --> 00:17:42.910
They would wear their Sunday's finest.
348
00:17:42.910 --> 00:17:45.520
They would exchange some amount of money
349
00:17:45.520 --> 00:17:47.870
and they'd walk out with a beautiful
350
00:17:47.870 --> 00:17:49.690
shiny daguerreotypes
351
00:17:49.690 --> 00:17:51.560
that they could then pass on to the generations.
352
00:17:51.560 --> 00:17:53.310
Can I ask you, do you know how long-
353
00:17:53.310 --> 00:17:54.143
Okay, go ahead.
354
00:17:54.143 --> 00:17:56.431
How long does, it take to create one of those?
355
00:17:56.431 --> 00:17:57.883
Or did it take.
356
00:17:58.730 --> 00:18:03.730
Well, it takes about a minute of like a pose.
357
00:18:03.810 --> 00:18:04.720
So it's like (indistinct)
358
00:18:04.720 --> 00:18:07.480
it can be and they have things that prop you up.
359
00:18:07.480 --> 00:18:08.900
Like literally so that you can...
360
00:18:08.900 --> 00:18:10.060
I mean I've never...
361
00:18:10.060 --> 00:18:12.870
I'm gonna answer your question I've never had one taken,
362
00:18:12.870 --> 00:18:17.190
but it could take hour?
363
00:18:17.190 --> 00:18:19.300
My learning co-counsel has informed me.
364
00:18:19.300 --> 00:18:21.920
It's a long process of like emulsifying
365
00:18:23.670 --> 00:18:25.110
if my science teacher could see me now.
366
00:18:25.110 --> 00:18:28.720
Maybe that's a better question for Attorney Crump if he.
367
00:18:28.720 --> 00:18:29.870
Yeah, well, he's-
368
00:18:29.870 --> 00:18:31.681
I just had one question
369
00:18:31.681 --> 00:18:34.040
that I wanna give you the opportunity to answer.
370
00:18:34.040 --> 00:18:34.873
Yes, sir.
371
00:18:34.873 --> 00:18:36.040
Would you please address
372
00:18:36.040 --> 00:18:39.347
the 1st Amendment implications of this?
373
00:18:39.347 --> 00:18:40.673
The 1st Amendment...
374
00:18:40.673 --> 00:18:42.793
Okay so the 1st Amendment implications
375
00:18:42.793 --> 00:18:45.523
is a straw man.
376
00:18:46.610 --> 00:18:51.610
What the daguerreotype is a tangible piece of property
377
00:18:51.980 --> 00:18:54.920
that was wrenched or extracted from two people
378
00:18:54.920 --> 00:18:57.240
who had no say in the matter
379
00:18:57.240 --> 00:18:59.222
and they were victims.
380
00:18:59.222 --> 00:19:02.870
Just as if they pointed a gun
381
00:19:02.870 --> 00:19:05.750
just as if Agis has pointed a gun at these two human beings
382
00:19:05.750 --> 00:19:07.120
and shot them through the head
383
00:19:07.120 --> 00:19:10.010
wouldn't jeopardize the 2nd Amendment.
384
00:19:10.010 --> 00:19:11.940
So too is the 1st Amendment,
385
00:19:11.940 --> 00:19:14.080
it's just not this case.
386
00:19:14.080 --> 00:19:16.370
There is no jeopardy whatsoever the 1st Amendment,
387
00:19:16.370 --> 00:19:21.370
in fact if you were to balance the 1st Amendment
388
00:19:21.880 --> 00:19:25.400
as something like as a counterweight to what happened,
389
00:19:25.400 --> 00:19:27.690
then that means you could abuse somebody
390
00:19:27.690 --> 00:19:29.510
under the gauntlet of the 1st Amendment
391
00:19:29.510 --> 00:19:31.926
and use the fruits of that abuse
392
00:19:31.926 --> 00:19:34.420
and hide under the 1st Amendment.
393
00:19:34.420 --> 00:19:39.024
I mean as as we all know, amendments are not limitless.
394
00:19:39.024 --> 00:19:42.010
But I I've had the expression,
395
00:19:42.010 --> 00:19:45.105
the right that I have to use my fist (indistinct)
396
00:19:45.105 --> 00:19:49.120
your face, somebody face.
397
00:19:49.120 --> 00:19:53.070
And I really...
398
00:19:53.070 --> 00:19:54.404
Have I...
399
00:19:54.404 --> 00:19:55.237
Are you satisfied.
400
00:19:55.237 --> 00:19:57.302
I want to give you the opportunity to address that.
401
00:19:57.302 --> 00:19:58.211
I know that's...
402
00:19:58.211 --> 00:19:59.070
Yeah, I know I appreciate that.
403
00:19:59.070 --> 00:20:01.550
And it's a very clever argument
404
00:20:01.550 --> 00:20:02.780
but it's (indistinct)-
405
00:20:02.780 --> 00:20:03.760
Follow up on that.
406
00:20:03.760 --> 00:20:07.010
So the pictures are terrible and they depict
407
00:20:07.010 --> 00:20:10.760
how terrible slavery is, is that...
408
00:20:12.550 --> 00:20:17.250
That's part of what scholars study and explain
409
00:20:19.090 --> 00:20:22.770
and what the media covers, so isn't there...
410
00:20:22.770 --> 00:20:26.390
I mean, say you're a scholar of reparations
411
00:20:26.390 --> 00:20:30.423
or you're a scholar of the horrors of slavery.
412
00:20:31.430 --> 00:20:35.410
You're now, is this off limits to you?
413
00:20:35.410 --> 00:20:39.630
But only if you're a scholar who is abused people
414
00:20:39.630 --> 00:20:41.560
for the rest of your scholarship.
415
00:20:41.560 --> 00:20:43.750
Well, I thought you say though that no one...
416
00:20:43.750 --> 00:20:48.267
If your client doesn't want anyone to at this, right?
417
00:20:48.267 --> 00:20:51.330
These pictures then scholars
418
00:20:51.330 --> 00:20:55.460
will be also not able to look at them, right?
419
00:20:55.460 --> 00:20:58.830
And they shouldn't be, if somebody
420
00:20:58.830 --> 00:21:02.170
still one of the justices,
421
00:21:02.170 --> 00:21:03.150
I don't wanna single anybody out.
422
00:21:03.150 --> 00:21:07.110
If somebody stole your family photo from your living room
423
00:21:07.110 --> 00:21:08.430
and that person said,
424
00:21:08.430 --> 00:21:10.580
I don't really care if this is your family photo,
425
00:21:10.580 --> 00:21:14.960
because I'm a scholar and I'm writing about Boston-
426
00:21:14.960 --> 00:21:17.740
Let's do the analogy, the Holocaust pictures.
427
00:21:17.740 --> 00:21:19.620
Holocaust, what-
428
00:21:19.620 --> 00:21:23.248
So you're a descendant of someone
429
00:21:23.248 --> 00:21:26.500
who was in one of the camps.
430
00:21:26.500 --> 00:21:28.320
Those pictures are terrible.
431
00:21:28.320 --> 00:21:29.153
They are.
432
00:21:29.153 --> 00:21:33.600
And they're hurtful to anyone who looks
433
00:21:33.600 --> 00:21:37.840
at them, but don't that helps condemn the acts
434
00:21:37.840 --> 00:21:39.840
by looking and studying them.
435
00:21:39.840 --> 00:21:42.310
Right and generally speaking,
436
00:21:42.310 --> 00:21:47.100
photographs of atrocities don't belong to the victims,
437
00:21:47.100 --> 00:21:48.220
even though some people may think
438
00:21:48.220 --> 00:21:50.836
that they should, but if you use and-
439
00:21:50.836 --> 00:21:53.007
Is that similar to this?
440
00:21:53.007 --> 00:21:55.000
Actually it's not,
441
00:21:55.000 --> 00:21:58.940
it's again very clever, but it would...
442
00:21:58.940 --> 00:22:01.300
It's what my kids would call a cellphone
443
00:22:01.300 --> 00:22:05.230
because what the argument was, and this is in their brief,
444
00:22:05.230 --> 00:22:10.160
was that this is like not a Nazi Germany in the Holocaust.
445
00:22:10.160 --> 00:22:12.286
And we learned so much from those photos,
446
00:22:12.286 --> 00:22:17.286
but we didn't learn them from the third Reich
447
00:22:17.670 --> 00:22:20.020
that committed the atrocities.
448
00:22:20.020 --> 00:22:22.200
It wasn't we weren't relying on a third Reich
449
00:22:22.200 --> 00:22:25.120
to explain this to us, Harvard stands
450
00:22:25.120 --> 00:22:25.953
in that position.
I'm not saying
451
00:22:25.953 --> 00:22:28.590
the third Reich should have them.
452
00:22:28.590 --> 00:22:29.440
I'm sorry.
453
00:22:29.440 --> 00:22:33.240
I'm agreeing with you that the third Reich
454
00:22:33.240 --> 00:22:35.760
shouldn't have, the question is sort of does the public
455
00:22:35.760 --> 00:22:39.510
have a 1st Amendment interest in this?
456
00:22:39.510 --> 00:22:44.510
Yes, so really it's almost an ends justify the means.
457
00:22:44.730 --> 00:22:46.070
It depends who you ask.
458
00:22:46.070 --> 00:22:47.590
Well I don't know-
I think if you asked
459
00:22:47.590 --> 00:22:50.240
Renty and Delia, they would say you know what?
460
00:22:50.240 --> 00:22:53.090
We didn't wanna be part of the public's education.
461
00:22:53.090 --> 00:22:57.020
And part of my point in explaining
462
00:22:57.020 --> 00:23:02.020
this, this is that it's you can never subordinate
463
00:23:05.330 --> 00:23:08.010
abuse of somebody in the name of education
464
00:23:08.010 --> 00:23:11.270
and that's essentially and what these arguments
465
00:23:11.270 --> 00:23:14.800
are about the comparison to the first amendment
466
00:23:14.800 --> 00:23:17.280
or the Holocaust or the scholarship
467
00:23:17.280 --> 00:23:20.060
and that is the same thing
468
00:23:20.060 --> 00:23:24.190
I have been hearing a lot because we think of Harvard
469
00:23:24.190 --> 00:23:27.270
as only doing good and in service of-
470
00:23:27.270 --> 00:23:30.140
I don't think we come with any bias towards Harvard
471
00:23:30.140 --> 00:23:31.230
versus your client.
472
00:23:31.230 --> 00:23:35.183
So I wouldn't read into that at all.
473
00:23:35.183 --> 00:23:38.190
But its I take the point and it's a very...
474
00:23:39.288 --> 00:23:42.827
This case actually brings that question up-
475
00:23:42.827 --> 00:23:45.090
And counsel this case doesn't resolve
476
00:23:45.090 --> 00:23:46.401
that question necessarily
477
00:23:46.401 --> 00:23:51.401
just if it went back to go for further proceedings,
478
00:23:51.580 --> 00:23:53.530
after a motion to dismiss,
479
00:23:53.530 --> 00:23:55.730
it's not going to automatically mean
480
00:23:55.730 --> 00:23:57.829
that Ms. Lanier can...
481
00:23:57.829 --> 00:24:00.740
We'll have the daguerreotype-
That's true.
482
00:24:00.740 --> 00:24:01.874
Or would withhold it-
Exactly.
483
00:24:01.874 --> 00:24:03.916
Even if she had, it would withhold it.
484
00:24:03.916 --> 00:24:06.428
There's nothing about that here.
485
00:24:06.428 --> 00:24:08.090
It wouldn't have really mattered
486
00:24:08.090 --> 00:24:11.840
whether Harvard after the securing daguerreotypes
487
00:24:11.840 --> 00:24:14.570
and after this event happened where the tort had occurred,
488
00:24:14.570 --> 00:24:17.073
the theft what we say is the theft had happened.
489
00:24:18.030 --> 00:24:19.826
The fact that years later,
490
00:24:19.826 --> 00:24:21.990
they put out a publication
491
00:24:21.990 --> 00:24:25.850
and tell a story for what they call educational purposes,
492
00:24:25.850 --> 00:24:27.800
does nothing to their accountability
493
00:24:27.800 --> 00:24:30.900
for that original wrong.
494
00:24:30.900 --> 00:24:31.740
And it is in no,
495
00:24:31.740 --> 00:24:35.744
and in a society that a law that allowed people
496
00:24:35.744 --> 00:24:40.060
especially big educational institutions to torture people
497
00:24:40.060 --> 00:24:43.330
and then years later say, well let's write ups,
498
00:24:43.330 --> 00:24:46.220
treatise on what people look like when they're tortured
499
00:24:46.220 --> 00:24:49.050
and not ever confront the original wrong,
500
00:24:49.050 --> 00:24:51.760
that would really turn what we all think of.
501
00:24:51.760 --> 00:24:54.530
I think of fairness legal system upside down.
502
00:24:54.530 --> 00:24:56.010
I just wanna say one quick-
503
00:24:56.010 --> 00:24:57.970
Sure but before you need
504
00:24:57.970 --> 00:25:00.420
to say that I just have one...
505
00:25:00.420 --> 00:25:01.780
I have two questions.
506
00:25:01.780 --> 00:25:04.740
And one question goes to count four,
507
00:25:04.740 --> 00:25:06.663
which is your constitutional claim.
508
00:25:07.690 --> 00:25:09.980
And that count four in the complaint
509
00:25:09.980 --> 00:25:14.980
and that's based to section 12,
510
00:25:17.791 --> 00:25:19.977
subsections 11I, right?
511
00:25:20.870 --> 00:25:24.360
I'm gonna save the court some headache
512
00:25:24.360 --> 00:25:27.190
we are not pursuing the constitutional claim,
513
00:25:27.190 --> 00:25:29.463
it's very unduly complicated.
514
00:25:30.510 --> 00:25:32.910
We've provided the court with several different,
515
00:25:33.860 --> 00:25:36.000
property laws a little bit like hun dies.
516
00:25:36.000 --> 00:25:38.460
There's lots of different mechanisms
517
00:25:38.460 --> 00:25:39.470
to get where you're going.
518
00:25:39.470 --> 00:25:40.740
There are several different vehicles
519
00:25:40.740 --> 00:25:42.613
to get to the, it's a means to an end.
520
00:25:42.613 --> 00:25:44.070
Okay so you not pursuing that-
521
00:25:44.070 --> 00:25:45.060
Right, so I would-
522
00:25:45.060 --> 00:25:49.280
So my other question is if we ended up concluding
523
00:25:49.280 --> 00:25:50.460
that the doctrine of Laches
524
00:25:50.460 --> 00:25:53.720
is applied to the plaintiff's unjust enrichment claim,
525
00:25:53.720 --> 00:25:56.179
what legal theory are you contending
526
00:25:56.179 --> 00:25:59.480
we would use to toll that statute of limitations.
527
00:25:59.480 --> 00:26:02.560
Well Laches and (indistinct)
528
00:26:02.560 --> 00:26:04.613
I mean, but let me just say something quick,
529
00:26:04.613 --> 00:26:05.446
(indistinct)
530
00:26:05.446 --> 00:26:07.243
We just have the statute of limitations.
531
00:26:07.243 --> 00:26:10.030
There's a really fundamental dispute
532
00:26:10.030 --> 00:26:11.266
about this in this case.
533
00:26:11.266 --> 00:26:14.261
It's like all factual session limitations
534
00:26:14.261 --> 00:26:18.880
as the court knows is almost universally a factual dispute
535
00:26:18.880 --> 00:26:22.830
and it's seldom can suddenly and be resolved at the motion
536
00:26:22.830 --> 00:26:25.023
to dismiss stage on a thin record,
537
00:26:26.320 --> 00:26:28.647
especially when you have some...
538
00:26:30.410 --> 00:26:32.980
Especially where it's a complicated issue like this.
539
00:26:32.980 --> 00:26:35.670
And just, I just want the court to bear in mind
540
00:26:35.670 --> 00:26:38.470
that the legacies of slavery,
541
00:26:38.470 --> 00:26:40.840
one of its most enduring legacies is this destruction
542
00:26:40.840 --> 00:26:41.673
of the family.
543
00:26:41.673 --> 00:26:44.300
So for an individual in Tamara Lanier's shoes
544
00:26:44.300 --> 00:26:48.364
who's a probation officer working a full-time job
545
00:26:48.364 --> 00:26:51.270
to try to put the pieces together
546
00:26:51.270 --> 00:26:55.530
and overcome this incredible burden of tracing her ancestry
547
00:26:56.510 --> 00:26:59.140
is not sort of like commonly understood by people.
548
00:26:59.140 --> 00:27:02.090
And I'm guessing the court's never been in a position
549
00:27:02.090 --> 00:27:02.923
to do that.
550
00:27:02.923 --> 00:27:05.470
I mean for most of us we can go to ancestry.com ,
551
00:27:05.470 --> 00:27:06.303
that doesn't work
552
00:27:06.303 --> 00:27:09.820
that way for a descendant of an enslaved person sadly.
553
00:27:09.820 --> 00:27:12.720
And so the argument that she...
554
00:27:12.720 --> 00:27:17.360
By Harvard, that after telling her that she wasn't related
555
00:27:17.360 --> 00:27:18.550
or they didn't-
556
00:27:18.550 --> 00:27:20.870
So you're saying the discovery rule is subject
557
00:27:20.870 --> 00:27:21.966
to factual disputes-
Absolutely.
558
00:27:21.966 --> 00:27:25.110
That really can't be resolved at the dismissal stage.
559
00:27:25.110 --> 00:27:26.570
Exactly and I asked the...
560
00:27:26.570 --> 00:27:28.690
Exactly I couldn't have said it better actually.
561
00:27:28.690 --> 00:27:31.110
Okay (indistinct) I understand
562
00:27:31.110 --> 00:27:33.390
this is a very important case no question.
563
00:27:33.390 --> 00:27:34.760
Part of our problem is we don't know
564
00:27:34.760 --> 00:27:36.960
what you were supposed to argue,
565
00:27:36.960 --> 00:27:39.300
and then what Attorney Crump was supposed to argue.
566
00:27:39.300 --> 00:27:40.210
And I don't think...
567
00:27:40.210 --> 00:27:41.880
I think the justices wanna make sure
568
00:27:41.880 --> 00:27:43.890
they get all their questions answered,
569
00:27:43.890 --> 00:27:46.820
but we don't know the right person to ask.
570
00:27:46.820 --> 00:27:49.219
You've had a plenty, a lot of time,
571
00:27:49.219 --> 00:27:50.690
a lot but-
572
00:27:50.690 --> 00:27:51.942
I'm getting the hook.
573
00:27:51.942 --> 00:27:54.192
(laughing)
574
00:27:56.340 --> 00:27:58.670
I mean I think that the issues I wanted
575
00:27:58.670 --> 00:28:02.000
to address property statute limitations,
576
00:28:02.000 --> 00:28:04.630
but I think it's simple at this stage for the court.
577
00:28:04.630 --> 00:28:07.010
I would just suggest that there's disputes.
578
00:28:07.010 --> 00:28:10.190
We say the discovery wasn't made until 2017
579
00:28:10.190 --> 00:28:13.500
sufficient for Ms. Lanier to really overcome
580
00:28:13.500 --> 00:28:18.020
this burden and essentially bring this claim
581
00:28:18.020 --> 00:28:20.380
against this mighty institution
582
00:28:20.380 --> 00:28:23.019
who had already told her that she didn't have enough.
583
00:28:23.019 --> 00:28:24.283
And then I wanted to hit on the issue
584
00:28:24.283 --> 00:28:25.810
of joinder really quickly,
585
00:28:25.810 --> 00:28:26.890
because there are some cases
586
00:28:26.890 --> 00:28:28.580
where if you're in a property.
587
00:28:28.580 --> 00:28:29.413
Don't worry about that one.
588
00:28:29.413 --> 00:28:31.560
But before you sit down,
589
00:28:31.560 --> 00:28:34.700
I just wanna make sure that both you and Justice Wendlands
590
00:28:34.700 --> 00:28:37.793
feel that you have answered her question about-
591
00:28:37.793 --> 00:28:39.651
I think I answered my own question.
592
00:28:39.651 --> 00:28:40.484
(laughing)
593
00:28:40.484 --> 00:28:41.800
Okay we're all set.
594
00:28:41.800 --> 00:28:45.030
I liked your answer so I (indistinct)
595
00:28:45.030 --> 00:28:46.235
Thank you, I appreciate it.
596
00:28:46.235 --> 00:28:47.068
Okay thanks.
597
00:28:47.068 --> 00:28:48.740
And I'll turn it over to my wonderful colleague.
598
00:28:48.740 --> 00:28:49.573
Great.
599
00:28:52.600 --> 00:28:53.983
May I please, the court,
600
00:28:55.450 --> 00:28:59.320
I want to give just three brief historical references
601
00:28:59.320 --> 00:29:01.740
before we get to the crux of the matter
602
00:29:01.740 --> 00:29:03.990
of the property rights and the purpose possessory
603
00:29:03.990 --> 00:29:07.963
interest rights that are state here in this case.
604
00:29:09.830 --> 00:29:12.370
I'm Attorney Ben Crump.
605
00:29:12.370 --> 00:29:17.370
And the fact that I stand before you as a free man
606
00:29:17.680 --> 00:29:19.210
and not slave
607
00:29:21.300 --> 00:29:25.700
is a Testament to someone's decision
608
00:29:25.700 --> 00:29:28.053
to change the course of human history.
609
00:29:29.560 --> 00:29:32.273
It is a Testament to our legal system,
610
00:29:33.590 --> 00:29:36.730
a Testament that was led by the courts
611
00:29:36.730 --> 00:29:39.850
here in Massachusetts,
612
00:29:39.850 --> 00:29:44.190
when Chief Justice, James (indistinct) in 1783,
613
00:29:48.000 --> 00:29:52.463
judicially abolished slavery in the (indistinct) case.
614
00:29:54.050 --> 00:29:58.790
And it is the reason why he is so often quoted
615
00:29:58.790 --> 00:30:01.620
even 250 years later
616
00:30:03.210 --> 00:30:07.920
with the whole thing that idea of slavery
617
00:30:08.820 --> 00:30:13.580
is inconsistent with our conduct
618
00:30:13.580 --> 00:30:15.253
and our constitution.
619
00:30:17.730 --> 00:30:19.950
The second historical reference
620
00:30:22.020 --> 00:30:27.020
is from the great Negro abolitionists, Frederick Douglas,
621
00:30:28.540 --> 00:30:33.540
who once said genealogical trees of black people
622
00:30:36.340 --> 00:30:41.340
do not flourish as a result of slavery.
623
00:30:41.490 --> 00:30:45.880
In essence, what Frederick Douglas was saying
624
00:30:47.200 --> 00:30:51.730
is what slavery did was destroyed
625
00:30:51.730 --> 00:30:54.530
the African-American family
626
00:30:54.530 --> 00:30:59.463
connection to his ancestry lineage.
627
00:31:01.330 --> 00:31:05.930
But this historic case has the ability
628
00:31:05.930 --> 00:31:09.110
to not only recognize such lineage,
629
00:31:09.110 --> 00:31:13.990
but the right one such lineage
630
00:31:15.710 --> 00:31:18.343
of Ms. Lanier and her family.
631
00:31:20.070 --> 00:31:23.320
And the final historical point, your honors
632
00:31:25.350 --> 00:31:30.350
this case presents a case study of Massachusetts
633
00:31:30.370 --> 00:31:33.760
complicated history with slavery.
634
00:31:33.760 --> 00:31:38.510
On one hand, it has profited moderately
635
00:31:38.510 --> 00:31:43.510
from the cotton trade, its most powerful institution
636
00:31:43.540 --> 00:31:47.110
Harvard University has ties with slavery
637
00:31:47.110 --> 00:31:49.400
that dates back centuries.
638
00:31:49.400 --> 00:31:53.870
In fact the textile factories who were the largest donors
639
00:31:53.870 --> 00:31:58.200
of the university help to build capitalistic empires
640
00:31:58.200 --> 00:32:01.653
on the backs of enslaved Africans.
641
00:32:02.740 --> 00:32:06.110
In fact, the institution of Harvard
642
00:32:06.110 --> 00:32:10.700
and the institution of slavery was born in this country
643
00:32:10.700 --> 00:32:12.883
a mere 17 years apart.
644
00:32:15.150 --> 00:32:18.430
On the other hand, Massachusetts
645
00:32:18.430 --> 00:32:23.130
is also the home of John Adams and it is not lost
646
00:32:23.130 --> 00:32:25.010
on me or Ms. Lanier
647
00:32:25.010 --> 00:32:28.640
that we're in the John Adams courthouse.
648
00:32:28.640 --> 00:32:33.640
John Adams says slavery is the great and file stain
649
00:32:33.730 --> 00:32:35.883
upon the North American Union.
650
00:32:38.320 --> 00:32:43.320
Now to get the crux of the matter as we've all discussed.
651
00:32:47.660 --> 00:32:52.660
Mr Koskoff so ably explain to the court property
652
00:32:54.160 --> 00:32:56.703
is more than simply an object.
653
00:32:58.150 --> 00:33:01.270
Property is a collection of individual rights.
654
00:33:01.270 --> 00:33:04.310
It involves the delicate relationships
655
00:33:04.310 --> 00:33:07.670
amongst individuals concerning a given resource.
656
00:33:07.670 --> 00:33:09.110
And the resource we are discussing
657
00:33:09.110 --> 00:33:14.110
here is not merely some image or some photographic negative
658
00:33:14.590 --> 00:33:16.610
as suggested by Harvard,
659
00:33:16.610 --> 00:33:20.670
instead we're discussing the culmination of a malicious
660
00:33:20.670 --> 00:33:25.570
and evil scientific experiment in a torturous
661
00:33:25.570 --> 00:33:30.320
conduct of slavery itself in an attempt to legitimize
662
00:33:30.320 --> 00:33:35.320
the abhorrent concept that persons of color or property.
663
00:33:40.110 --> 00:33:43.920
And this delicate relationship amongst individuals
664
00:33:43.920 --> 00:33:48.777
is between Ms. Lanier, Renty in Delia's descendant
665
00:33:49.670 --> 00:33:52.000
and Harvard University,
666
00:33:52.000 --> 00:33:54.920
the entity who supported and funded
667
00:33:54.920 --> 00:33:58.210
the wrongdoer professor Lewis Agassi,
668
00:33:58.210 --> 00:34:01.891
even though they want to try to distinguish
669
00:34:01.891 --> 00:34:05.740
him now, but it was Harvard who commissioned
670
00:34:05.740 --> 00:34:09.010
him, who celebrated him and who perpetuated
671
00:34:09.010 --> 00:34:11.783
him and who named buildings after him.
672
00:34:13.300 --> 00:34:17.530
It's about the right of possessory interest,
673
00:34:17.530 --> 00:34:22.060
the right to exert control over a specific property,
674
00:34:22.060 --> 00:34:25.330
given Harvard the right to exert control
675
00:34:25.330 --> 00:34:27.550
over these daguerreotypes
676
00:34:27.550 --> 00:34:30.370
is given them the right to exert control
677
00:34:30.370 --> 00:34:32.890
over a piece of evidence,
678
00:34:32.890 --> 00:34:35.970
which represents the (indistinct)
679
00:34:35.970 --> 00:34:40.610
of the inhumane and criminal acts against this black man
680
00:34:40.610 --> 00:34:44.820
and his daughter 170 years ago.
681
00:34:44.820 --> 00:34:46.960
If the daguerreotypes had been found,
682
00:34:46.960 --> 00:34:48.730
say by the Boston Globe
683
00:34:48.730 --> 00:34:52.840
in a drawer somehow in their building,
684
00:34:52.840 --> 00:34:54.850
would you have a different argument?
685
00:34:54.850 --> 00:34:56.253
You know what-
686
00:34:57.610 --> 00:35:00.610
Well, we look at the creation of the daguerreotypes
687
00:35:00.610 --> 00:35:05.610
themselves as been something that the court should consider.
688
00:35:08.510 --> 00:35:11.510
The truth is this was a scientific experiment
689
00:35:11.510 --> 00:35:15.830
with black human beings being used as lab rats.
690
00:35:15.830 --> 00:35:18.800
It was not only a crime against humanity,
691
00:35:18.800 --> 00:35:19.770
but it was a crime
692
00:35:19.770 --> 00:35:23.030
in the laws of the State of Massachusetts.
693
00:35:23.030 --> 00:35:26.750
So it is the creation of the daguerreotypes
694
00:35:26.750 --> 00:35:29.190
themselves that are crime.
695
00:35:29.190 --> 00:35:32.630
So Harvard, what have you believed
696
00:35:32.630 --> 00:35:35.830
that they should have possession interests
697
00:35:35.830 --> 00:35:38.270
above Ms. Lanier and all others
698
00:35:38.270 --> 00:35:42.030
because they have this scholarship,
699
00:35:42.030 --> 00:35:47.030
this academic proudness that they can disseminate
700
00:35:47.610 --> 00:35:49.810
it to the world and they can educate
701
00:35:49.810 --> 00:35:52.600
us on the science and the history of slavery
702
00:35:52.600 --> 00:35:53.780
better than black people,
703
00:35:53.780 --> 00:35:56.830
better than Ms. Lanier and who she chooses to associate
704
00:35:56.830 --> 00:36:00.750
with the daguerreotypes of her family.
705
00:36:00.750 --> 00:36:03.880
I often think about the (indistinct)
706
00:36:03.880 --> 00:36:06.770
which is analogous to this.
707
00:36:06.770 --> 00:36:09.250
When she received the artwork
708
00:36:09.250 --> 00:36:12.770
back out there it had been taken from the Nazis
709
00:36:12.770 --> 00:36:14.493
during the Holocaust,
710
00:36:16.070 --> 00:36:17.810
I don't recall the argument coming
711
00:36:17.810 --> 00:36:20.900
what would she do with the daguerreotypes?
712
00:36:20.900 --> 00:36:25.180
And I think it's not proper to say,
713
00:36:25.180 --> 00:36:27.994
what would Ms. Lanier do as if this black woman
714
00:36:27.994 --> 00:36:32.994
could not work collaboratively with a museum
715
00:36:34.380 --> 00:36:38.857
to be able to protect the 1st Amendment interests.
716
00:36:38.857 --> 00:36:41.360
I am sorry if you misunderstood, my question
717
00:36:41.360 --> 00:36:45.230
was not what will she do with them if she wins.
718
00:36:45.230 --> 00:36:48.030
My question is what would your case...
719
00:36:48.030 --> 00:36:51.640
How would your case differ if any?
720
00:36:51.640 --> 00:36:54.960
If the daguerreotypes had been found in a drawer
721
00:36:56.740 --> 00:36:57.750
of the Boston Globe?
722
00:36:57.750 --> 00:36:59.080
Yes, ma'am your honor.
723
00:36:59.080 --> 00:37:02.530
We would ask this court as we're doing today,
724
00:37:02.530 --> 00:37:05.355
to give her the opportunity to go forward
725
00:37:05.355 --> 00:37:08.560
before a jury to be able to prove her case,
726
00:37:08.560 --> 00:37:12.410
why her possessory interest or greater and superior
727
00:37:12.410 --> 00:37:17.410
to anybody else's this is a small us, when you think
728
00:37:18.670 --> 00:37:22.440
of the scope of the great wrong that has been done.
729
00:37:22.440 --> 00:37:27.440
All Tamara Lanier has asked to do from day one
730
00:37:27.480 --> 00:37:32.480
is to be able to prove that that man and that woman
731
00:37:32.750 --> 00:37:35.750
are her great, great, great grandparents.
732
00:37:35.750 --> 00:37:39.330
And as Mr. Koskoff said she did it miraculously
733
00:37:39.330 --> 00:37:42.170
painstakingly something that black people
734
00:37:42.170 --> 00:37:46.600
were never supposed to be able to do because of slavery.
735
00:37:46.600 --> 00:37:49.620
I hope that addressed your question, your honor.
736
00:37:49.620 --> 00:37:51.690
Yes, so your position is that her rights
737
00:37:51.690 --> 00:37:55.150
are superior to anybody else's rights
738
00:37:55.150 --> 00:37:58.260
in this case though, Harvard is actually the wrongdoer
739
00:37:58.260 --> 00:37:59.660
so should have no rights.
740
00:37:59.660 --> 00:38:01.290
Yes ma'am, your honor.
741
00:38:01.290 --> 00:38:04.990
How do we deal with the fact that she's one of I take
742
00:38:04.990 --> 00:38:06.173
it many descendant?
743
00:38:07.220 --> 00:38:08.320
Again your honor,
744
00:38:08.320 --> 00:38:12.820
that is a matter that should not be manifested by Harvard.
745
00:38:12.820 --> 00:38:16.120
That should be something that once it is proven
746
00:38:16.120 --> 00:38:18.640
in a court of law before a jury,
747
00:38:18.640 --> 00:38:20.760
then we can address that matter.
748
00:38:20.760 --> 00:38:24.320
Ms. Lanier is fully aware that she understands
749
00:38:24.320 --> 00:38:29.320
she is but one descendant of a Papa Renty and Delia,
750
00:38:30.470 --> 00:38:35.470
but to let Harvard, I mean retained to the daguerreotypes
751
00:38:36.430 --> 00:38:39.870
is like catching a thief red handed.
752
00:38:39.870 --> 00:38:44.040
And the court allowed the thief to legally
753
00:38:45.090 --> 00:38:46.923
keep possession of the property.
754
00:38:47.960 --> 00:38:51.950
It would offend all concepts of equity and justice
755
00:38:51.950 --> 00:38:56.950
to leave the daguerreotypes in Harvard's and clean hands.
756
00:38:57.610 --> 00:39:00.890
I beseech this court to ask Harvard,
757
00:39:00.890 --> 00:39:04.680
what is the basis of its possessory interest claim,
758
00:39:04.680 --> 00:39:07.357
the basis of Harvard's right
759
00:39:07.357 --> 00:39:11.280
to continue to exert control over this daguerreotypes
760
00:39:11.280 --> 00:39:14.700
Harvard has been silent on this question,
761
00:39:14.700 --> 00:39:19.278
just like the thief pointed fingers at everybody else
762
00:39:19.278 --> 00:39:20.630
except themselves.
But if we (indistinct)
763
00:39:20.630 --> 00:39:22.003
I'm sorry to interrupt.
764
00:39:23.110 --> 00:39:27.680
If we're trying to define what the property right
765
00:39:27.680 --> 00:39:30.630
is here, I mean make sure that I understand
766
00:39:31.540 --> 00:39:34.300
your definition of the property right
767
00:39:34.300 --> 00:39:35.860
that your clients have.
768
00:39:35.860 --> 00:39:40.860
If somebody is a victim of a despicable crime,
769
00:39:42.400 --> 00:39:47.190
and if the person who took the photograph
770
00:39:48.733 --> 00:39:52.960
of that despicable crime occurring,
771
00:39:52.960 --> 00:39:55.920
what was complicit in the taking
772
00:39:55.920 --> 00:39:57.670
of that photograph daguerreotype
773
00:39:57.670 --> 00:40:02.670
as we have here, then the victim of the crime
774
00:40:05.040 --> 00:40:06.573
retains ownership.
775
00:40:10.250 --> 00:40:12.002
You have a photo (indistinct)
776
00:40:12.002 --> 00:40:12.880
I'm sorry-
777
00:40:12.880 --> 00:40:14.850
I think I understand your question
778
00:40:14.850 --> 00:40:18.550
and I would put forth your honor,
779
00:40:18.550 --> 00:40:23.410
this is a case not just about property rights.
780
00:40:23.410 --> 00:40:26.810
It is also about possessory interests.
781
00:40:26.810 --> 00:40:30.640
And when you think about that, you go back and you look
782
00:40:30.640 --> 00:40:33.431
at the case law that says property
783
00:40:33.431 --> 00:40:36.090
is a collection of individual rights,
784
00:40:36.090 --> 00:40:37.950
determined by state law.
785
00:40:37.950 --> 00:40:42.900
Part of the crucial rights are to the right to exclude
786
00:40:42.900 --> 00:40:44.370
or the right to use,
787
00:40:44.370 --> 00:40:48.500
it's not something that simply refers to the object itself.
788
00:40:48.500 --> 00:40:51.870
And so when you look at this bundle of sticks
789
00:40:51.870 --> 00:40:56.870
that has been often quoted Justice Sotomayor recently quoted
790
00:40:57.050 --> 00:41:02.050
in Manhattan Community Access Corp versus Hallec.
791
00:41:03.690 --> 00:41:08.690
And she quoted US v. Craft Supreme Court decision in 2002.
792
00:41:10.810 --> 00:41:14.130
I wanna make reference to those to understand
793
00:41:14.130 --> 00:41:17.350
the complicated nature of possessory interest
794
00:41:17.350 --> 00:41:20.590
in why we feel we should be allowed to go forward
795
00:41:20.590 --> 00:41:24.060
before a jury to argue that the possessory
796
00:41:24.060 --> 00:41:27.400
rights as Ms. Lanier's descendants,
797
00:41:27.400 --> 00:41:30.510
who were the victims of a heinous crime,
798
00:41:30.510 --> 00:41:32.550
should be able to go forward.
799
00:41:32.550 --> 00:41:36.891
And I hope that I further explain
800
00:41:36.891 --> 00:41:41.283
that what we're asking for here today is not novel.
801
00:41:42.410 --> 00:41:44.860
There is a precedent in the law,
802
00:41:44.860 --> 00:41:48.040
and we have the legal vehicles to accomplish
803
00:41:48.040 --> 00:41:51.050
the ends to write in this past wrong
804
00:41:51.050 --> 00:41:53.170
and create in a more just future.
805
00:41:53.170 --> 00:41:55.230
In this moment, the law through concepts
806
00:41:55.230 --> 00:41:59.730
of replevin, conversion, equitable restitution
807
00:41:59.730 --> 00:42:03.197
and prime aphasia tort provides this court
808
00:42:03.197 --> 00:42:06.640
and this court profoundly with opportunities
809
00:42:06.640 --> 00:42:09.630
to correct this grave and justice
810
00:42:09.630 --> 00:42:12.590
'cause throughout this nation in the world
811
00:42:12.590 --> 00:42:16.040
have you similar concepts to free society
812
00:42:16.040 --> 00:42:19.410
from the heavy burden of an injustice
813
00:42:19.410 --> 00:42:22.823
of a sin that has not yet been a toned.
814
00:42:23.730 --> 00:42:27.830
As the court Atlas stated in 1871,
815
00:42:27.830 --> 00:42:31.350
in the case of Walker v. Cronin,
816
00:42:31.350 --> 00:42:36.350
one of the aims of the common law has always been to protect
817
00:42:36.860 --> 00:42:40.240
every person against the wrong for acts
818
00:42:40.240 --> 00:42:42.040
of every other person.
819
00:42:42.040 --> 00:42:47.040
Harvard has kept Renty and Delia and slave for 170 years.
820
00:42:47.790 --> 00:42:52.790
This court has the ability to finally free Renty and Delia
821
00:42:53.100 --> 00:42:54.160
from bondage.
822
00:42:54.160 --> 00:42:58.560
Renty and Delia were condemned in life as property
823
00:42:58.560 --> 00:43:00.530
of their slave master.
824
00:43:00.530 --> 00:43:04.230
We are besieging this court not to condemn
825
00:43:04.230 --> 00:43:07.910
them in death to be the property of Harvard
826
00:43:07.910 --> 00:43:09.253
for all eternity.
827
00:43:10.950 --> 00:43:15.840
I conclude simply with this, the legal system found
828
00:43:17.660 --> 00:43:22.300
ways to return the belongings of Japanese Americans
829
00:43:22.300 --> 00:43:25.210
in turn and prison camps
830
00:43:26.170 --> 00:43:31.170
or return of possessions taken from the Jews by the Nazis.
831
00:43:32.570 --> 00:43:37.060
And that is time to return these to daguerreotypes
832
00:43:37.060 --> 00:43:40.580
to Ms. Lanier and her family who descended
833
00:43:40.580 --> 00:43:44.710
from these enslaved Africans.
834
00:43:44.710 --> 00:43:49.710
This is not a case governed by limited legal pre-sale
835
00:43:49.730 --> 00:43:54.170
that a subject of a photograph has no property interest
836
00:43:54.170 --> 00:43:56.020
in such a photograph.
837
00:43:56.020 --> 00:43:59.097
More over this court,
838
00:43:59.097 --> 00:44:03.110
and this court most profoundly has the power to provide
839
00:44:03.110 --> 00:44:07.450
Ms. Lanier simply with the opportunity
840
00:44:07.450 --> 00:44:11.470
to be able to prove that she has a superior
841
00:44:11.470 --> 00:44:15.603
possessory interest over Harvard.
842
00:44:16.670 --> 00:44:21.670
And I would suggest your honors her request to go forward
843
00:44:24.700 --> 00:44:28.770
and have an opportunity to prove her case
844
00:44:28.770 --> 00:44:33.280
before a jury is quite small
845
00:44:34.360 --> 00:44:38.680
in the scope of such a great wrong
846
00:44:40.406 --> 00:44:41.780
Thank your honor.
847
00:44:41.780 --> 00:44:42.613
Thank you.
848
00:44:43.970 --> 00:44:45.713
Okay, Attorney Anton Metlitsky.
849
00:44:50.880 --> 00:44:51.970
Thank you, your honor.
850
00:44:51.970 --> 00:44:54.260
May it please the court I'm Anton Metlitsky for Harvard,
851
00:44:54.260 --> 00:44:57.630
along with my colleague Victoria Steinberg,
852
00:44:57.630 --> 00:45:00.640
I wanna make clear at the outset that no one here disputes
853
00:45:00.640 --> 00:45:02.460
the grave evils of slavery
854
00:45:02.460 --> 00:45:04.350
or that Louis Agassi's scientific
855
00:45:04.350 --> 00:45:07.030
theories of white supremacy were abhorrent.
856
00:45:07.030 --> 00:45:09.480
And certainly no one hears this disputes
857
00:45:09.480 --> 00:45:12.290
that Renty and Delia were treated unconscionably.
858
00:45:12.290 --> 00:45:14.880
And it's more than clear that the daguerreotypes
859
00:45:14.880 --> 00:45:18.330
issue were produced in utterly egregious circumstances.
860
00:45:18.330 --> 00:45:20.790
What is Harvard's possessory interest
861
00:45:20.790 --> 00:45:22.030
in these daguerreotypes types
862
00:45:22.030 --> 00:45:23.800
and where does it stem from?
863
00:45:23.800 --> 00:45:28.250
Well, so I don't think that question is clear from...
864
00:45:28.250 --> 00:45:30.110
The answer to that question is clear from the complaint
865
00:45:30.110 --> 00:45:32.180
they alleged Harvard doesn't.
Then why does this case
866
00:45:32.180 --> 00:45:34.700
go back to determine who has the superior right
867
00:45:34.700 --> 00:45:37.230
is your opposing counsel has done.
868
00:45:37.230 --> 00:45:42.230
Because the plaintiff's claims all turn on the proposition
869
00:45:42.520 --> 00:45:46.820
that she has a possessory interest or a property interest
870
00:45:46.820 --> 00:45:48.910
in these daguerreotypes.
871
00:45:48.910 --> 00:45:49.891
So it doesn't...
872
00:45:49.891 --> 00:45:53.920
Harvard's possessory interest as to the threshold question
873
00:45:53.920 --> 00:45:56.510
of whether she can bring these claims doesn't matter.
874
00:45:56.510 --> 00:45:59.490
It's somebody can't, go ahead
875
00:45:59.490 --> 00:46:00.621
I'm sorry (indistinct).
876
00:46:00.621 --> 00:46:01.920
And I'm just curious and listening?
877
00:46:01.920 --> 00:46:02.753
Oh, okay.
878
00:46:02.753 --> 00:46:05.359
So somebody can't bring a conversion action
879
00:46:05.359 --> 00:46:08.480
to get damages or replevin action
880
00:46:08.480 --> 00:46:12.091
to (indistinct) somebody else's property.
881
00:46:12.091 --> 00:46:13.200
But it just doesn't matter-
So you're suggesting
882
00:46:13.200 --> 00:46:16.390
maybe she's just called it the wrong thing.
883
00:46:16.390 --> 00:46:19.160
What we really need is an interpleader action
884
00:46:19.160 --> 00:46:24.160
to say whose rights are superior here.
885
00:46:24.450 --> 00:46:26.490
Well, if she followed that kind of action,
886
00:46:26.490 --> 00:46:28.710
I don't think it would make a difference
887
00:46:28.710 --> 00:46:31.150
because I think the threshold question
888
00:46:31.150 --> 00:46:34.470
is just whether there is a property interest
889
00:46:34.470 --> 00:46:36.700
in the subjects of a photograph.
890
00:46:36.700 --> 00:46:37.710
If the answer to that question-
891
00:46:37.710 --> 00:46:38.543
Wait, wait, wait-
892
00:46:38.543 --> 00:46:39.376
That's important-
Let's not frame it that way.
893
00:46:39.376 --> 00:46:40.750
That is important right?
894
00:46:40.750 --> 00:46:45.140
Because if what they're saying is in these awful
895
00:46:45.140 --> 00:46:48.950
circumstances where you're performing
896
00:46:48.950 --> 00:46:50.670
in the words of Mr. Crump
897
00:46:50.670 --> 00:46:55.050
and it legitimate scientific racist experiment,
898
00:46:55.050 --> 00:46:57.993
should Harvard get to keep the pictures.
899
00:46:58.996 --> 00:47:02.370
I understand they've got some difficult arguments
900
00:47:02.370 --> 00:47:04.340
to make, to explain their property interests,
901
00:47:04.340 --> 00:47:08.320
but your simple point that just 'cause you have a...
902
00:47:08.320 --> 00:47:10.600
You're the photographer you get to keep the picture,
903
00:47:10.600 --> 00:47:12.990
there are exceptions to that rule.
904
00:47:12.990 --> 00:47:16.170
If you kidnap somebody and take half naked pictures
905
00:47:16.170 --> 00:47:18.570
of them you don't get to keep the pictures.
906
00:47:18.570 --> 00:47:22.670
You take pictures of a child naked, that's a crime.
907
00:47:22.670 --> 00:47:24.560
You don't get to keep the pictures,
908
00:47:24.560 --> 00:47:29.330
so there are limits on your possessory interests
909
00:47:29.330 --> 00:47:34.330
if it arises out of criminal or tortious behavior, right?
910
00:47:34.980 --> 00:47:35.860
Absolutely right.
911
00:47:35.860 --> 00:47:38.250
And so I think it's important to distinguish
912
00:47:38.250 --> 00:47:40.090
between two different questions.
913
00:47:40.090 --> 00:47:42.555
One is what are the legal routes
914
00:47:42.555 --> 00:47:47.555
to take away, let's say photographs from a wrongdoer.
915
00:47:49.850 --> 00:47:51.420
So your example,
916
00:47:51.420 --> 00:47:53.530
the answer would be I think a criminal action.
917
00:47:53.530 --> 00:47:55.130
It would happen through the criminal process
918
00:47:55.130 --> 00:47:56.840
the police would arrest the person.
919
00:47:56.840 --> 00:47:59.560
They would take away the photographs.
920
00:47:59.560 --> 00:48:01.530
The claims here are very different
921
00:48:01.530 --> 00:48:05.700
because the argument is that what is done by operation
922
00:48:05.700 --> 00:48:08.160
of law is a property right
923
00:48:08.160 --> 00:48:11.210
was vested in the subject of the photograph
924
00:48:11.210 --> 00:48:13.780
and the consequence of that is it's not a property right
925
00:48:13.780 --> 00:48:15.750
just against the wrongdoer and by the way obviously
926
00:48:15.750 --> 00:48:17.900
we disagree that Harvard is a wrongdoer
927
00:48:17.900 --> 00:48:20.113
here, but not on the pleadings with except-
928
00:48:20.113 --> 00:48:21.630
Will the child pornographer
929
00:48:21.630 --> 00:48:24.310
have a property right in the photographs?
930
00:48:24.310 --> 00:48:26.360
Well, not in any way that matters
931
00:48:26.360 --> 00:48:28.480
because the child pornographer would be arrested
932
00:48:28.480 --> 00:48:30.440
and the property would be taken
933
00:48:30.440 --> 00:48:31.778
away from the child pornographer
934
00:48:31.778 --> 00:48:33.430
by operation of law property.
935
00:48:33.430 --> 00:48:35.330
But to whose property is that?
936
00:48:35.330 --> 00:48:36.850
So I'm not sure whose , it would...
937
00:48:36.850 --> 00:48:38.630
I think it would end up being the state's property,
938
00:48:38.630 --> 00:48:43.630
but the issue here is that the kind of claim
939
00:48:43.886 --> 00:48:45.220
that they're bringing,
940
00:48:45.220 --> 00:48:46.420
that the plaintiff is bringing
941
00:48:46.420 --> 00:48:48.270
requires vesting of property right
942
00:48:48.270 --> 00:48:49.347
in the subject of the photograph
943
00:48:49.347 --> 00:48:50.820
and that means it's a property right
944
00:48:50.820 --> 00:48:52.430
not just against the wrongdoer
945
00:48:52.430 --> 00:48:53.630
but as against the world.
946
00:48:53.630 --> 00:48:55.357
All right lets stop (indistinct).
947
00:48:58.620 --> 00:48:59.810
The argument...
948
00:48:59.810 --> 00:49:01.021
I'm sorry go ahead.
949
00:49:01.021 --> 00:49:02.050
(chuckles)
950
00:49:02.050 --> 00:49:06.860
All right you're talking about it only as a photograph
951
00:49:06.860 --> 00:49:09.820
and what we're actually dealing with are photographs
952
00:49:09.820 --> 00:49:12.393
of an object that can't be replicated.
953
00:49:13.330 --> 00:49:16.010
The object, I'm concerned about the object.
954
00:49:16.010 --> 00:49:17.300
Right now for this argument,
955
00:49:17.300 --> 00:49:19.930
I don't wanna talk about the photographs
956
00:49:19.930 --> 00:49:21.410
just about the object.
957
00:49:21.410 --> 00:49:24.330
Are you disagreeing that human beings
958
00:49:24.330 --> 00:49:26.810
have an inherent property right in their body?
959
00:49:26.810 --> 00:49:27.643
Of course not.
960
00:49:27.643 --> 00:49:31.008
Correct and so with that in mind,
961
00:49:31.008 --> 00:49:35.320
there's no question that this was done under circumstances
962
00:49:35.320 --> 00:49:39.880
that at least in Massachusetts at the time were illegal
963
00:49:39.880 --> 00:49:42.250
even we don't even have to look to today
964
00:49:42.250 --> 00:49:46.870
and so today's different then in Massachusetts, not right.
965
00:49:46.870 --> 00:49:49.890
So why isn't this a fruit or an instrumentality
966
00:49:49.890 --> 00:49:50.773
of the crime?
967
00:49:51.690 --> 00:49:55.400
Well I mean, first of all there's absolutely no crush
968
00:49:55.400 --> 00:49:58.300
question that Renty and Delia were subject to crimes
969
00:49:58.300 --> 00:50:01.270
and worse than crimes that I think the question
970
00:50:01.270 --> 00:50:04.890
now is what is the remedy for that?
971
00:50:04.890 --> 00:50:08.640
And the main question is whether it's a judicial remedy
972
00:50:08.640 --> 00:50:09.810
based in property,
973
00:50:09.810 --> 00:50:13.520
it seems to me that there are very important interests
974
00:50:13.520 --> 00:50:14.810
on each side here.
975
00:50:14.810 --> 00:50:16.900
And if there is a way to resolve
976
00:50:16.900 --> 00:50:19.090
those interests to balance the interest
977
00:50:19.090 --> 00:50:21.420
for example of the public in viewing
978
00:50:21.420 --> 00:50:24.450
these kinds of photos and not just of enslaved people,
979
00:50:24.450 --> 00:50:27.170
but of Holocaust victims of the Abu Ghraib victims
980
00:50:27.170 --> 00:50:31.000
and the like versus descendants of enslaved people,
981
00:50:31.000 --> 00:50:33.380
Holocaust victims, and the like
982
00:50:33.380 --> 00:50:34.937
that's a legislative function.
But you're controlling,
983
00:50:34.937 --> 00:50:36.930
we have a tougher issue
984
00:50:36.930 --> 00:50:40.427
which is whether you or they get to control that image.
985
00:50:40.427 --> 00:50:43.940
'Cause that's the problem is it's not so clear
986
00:50:43.940 --> 00:50:47.220
in these really horrible circumstances,
987
00:50:47.220 --> 00:50:49.320
what your property rights are.
988
00:50:49.320 --> 00:50:53.130
I get your arguments that their property rights
989
00:50:53.130 --> 00:50:57.780
require some very novel conversion of old torts
990
00:50:57.780 --> 00:50:59.080
into new property rights.
991
00:50:59.080 --> 00:51:02.700
But I don't fully get Mr. Crump's question
992
00:51:02.700 --> 00:51:06.075
to you, which is what are your possessory rights
993
00:51:06.075 --> 00:51:08.750
'cause that seems much more difficult.
994
00:51:08.750 --> 00:51:10.290
And your honor, this is on the pleadings.
995
00:51:10.290 --> 00:51:12.522
And so I can't actually answer that.
996
00:51:12.522 --> 00:51:13.820
But you know that's a good point,
997
00:51:13.820 --> 00:51:15.260
it is on the pleadings.
998
00:51:15.260 --> 00:51:17.570
So why does...
999
00:51:17.570 --> 00:51:18.702
I don't understand well,
1000
00:51:18.702 --> 00:51:20.960
I read the judge's decision
1001
00:51:20.960 --> 00:51:23.630
and he does not buy the property rights argument
1002
00:51:23.630 --> 00:51:25.070
that was advanced.
1003
00:51:25.070 --> 00:51:27.857
But if there's any plausible,
1004
00:51:27.857 --> 00:51:32.690
all they need is a plausibly suggest
1005
00:51:32.690 --> 00:51:33.770
entitlement to relief.
1006
00:51:33.770 --> 00:51:36.120
Why wouldn't this rise to that level?
1007
00:51:36.120 --> 00:51:36.953
Well because I think-
1008
00:51:36.953 --> 00:51:38.080
It's not high level.
1009
00:51:38.080 --> 00:51:41.050
No it's not in the sense of so long
1010
00:51:41.050 --> 00:51:43.050
you have to take the complaint in the light
1011
00:51:43.050 --> 00:51:44.510
most favorable to the plaintiff.
1012
00:51:44.510 --> 00:51:46.860
And you have to acknowledge that all the facts
1013
00:51:46.860 --> 00:51:49.520
are true for purposes of deciding a motion to dismiss.
1014
00:51:49.520 --> 00:51:51.050
And we acknowledge all of that.
1015
00:51:51.050 --> 00:51:54.550
But if you take all of that and still if everything is true
1016
00:51:54.550 --> 00:51:57.150
there wouldn't be at law a claim,
1017
00:51:57.150 --> 00:51:58.700
then the claim should be dismissed,
1018
00:51:58.700 --> 00:52:01.364
which is what I think the judge had found below-
1019
00:52:01.364 --> 00:52:05.690
They submit all these factual allegations.
1020
00:52:05.690 --> 00:52:08.280
They don't have to define their legal theory
1021
00:52:08.280 --> 00:52:12.649
to survive a motion to dismiss that precisely, right?
1022
00:52:12.649 --> 00:52:14.307
It doesn't have to be-
1023
00:52:14.307 --> 00:52:16.640
And they're basically another way of reading
1024
00:52:16.640 --> 00:52:20.500
their complaint is no we don't know who has possession
1025
00:52:20.500 --> 00:52:24.033
of these daguerreotypes given the awful circumstances
1026
00:52:24.033 --> 00:52:26.375
in which they were created,
1027
00:52:26.375 --> 00:52:30.180
we should have a trial and sort that out.
1028
00:52:30.180 --> 00:52:32.170
Well I think what they're saying
1029
00:52:32.170 --> 00:52:34.720
is we should have a trial to sort out.
1030
00:52:34.720 --> 00:52:37.130
And they're saying, okay we're descendant,
1031
00:52:37.130 --> 00:52:39.300
I'm one descendant and you're Harvard,
1032
00:52:39.300 --> 00:52:42.840
you're the employer of the wrongdoer.
1033
00:52:42.840 --> 00:52:46.560
So in between the employer of the wrongdoer
1034
00:52:46.560 --> 00:52:49.900
and one descendant that's tricky who has the right
1035
00:52:49.900 --> 00:52:51.190
to this daguerreotype.
1036
00:52:51.190 --> 00:52:53.201
'Cause it is a piece of property,
1037
00:52:53.201 --> 00:52:56.900
the daguerreotype is a tangible piece of personal property.
1038
00:52:56.900 --> 00:53:00.350
It is but again and I'm sorry if I'm repeating myself,
1039
00:53:00.350 --> 00:53:02.300
the claims here such as conversion
1040
00:53:02.300 --> 00:53:04.660
and and replevin require-
1041
00:53:04.660 --> 00:53:06.810
I agree that that's a problem
1042
00:53:06.810 --> 00:53:08.910
for them 'cause you need a property interest
1043
00:53:08.910 --> 00:53:09.783
to establish-
Exactly.
1044
00:53:09.783 --> 00:53:12.190
Even if right to it being restored
1045
00:53:13.170 --> 00:53:16.540
but they are saying something a little more complicated,
1046
00:53:16.540 --> 00:53:18.883
which is what's your right.
1047
00:53:21.359 --> 00:53:24.250
And I think that if the court
1048
00:53:24.250 --> 00:53:27.140
thought that they plausibly...
1049
00:53:27.140 --> 00:53:29.550
That the plaintiff plausibly had a property right, right?
1050
00:53:29.550 --> 00:53:31.941
A judiciary recognized property right
1051
00:53:31.941 --> 00:53:33.037
I think we could have that.
1052
00:53:33.037 --> 00:53:35.470
Let me say, I accept your point,
1053
00:53:35.470 --> 00:53:38.483
but they're saying, what's your property right?
1054
00:53:39.848 --> 00:53:44.270
'Cause the court is they're saying we have a right
1055
00:53:44.270 --> 00:53:46.919
to this, you're saying you have a right to it.
1056
00:53:46.919 --> 00:53:49.640
Their right is not so obvious,
1057
00:53:49.640 --> 00:53:53.560
but neither is yours based on these really terrible
1058
00:53:53.560 --> 00:53:56.500
circumstances of the origin of the daguerreotype.
1059
00:53:56.500 --> 00:53:58.200
Right and we of course acknowledged
1060
00:53:58.200 --> 00:54:00.430
the terrible circumstances of the (indistinct).
1061
00:54:00.430 --> 00:54:03.907
You acknowledge, those factual circumstances
1062
00:54:03.907 --> 00:54:08.907
and the cases you rely on, I'm not saying they're useless
1063
00:54:09.080 --> 00:54:10.880
but they're different.
1064
00:54:10.880 --> 00:54:12.520
Of course they are certainly different.
1065
00:54:12.520 --> 00:54:15.770
But I do think that what would not be different
1066
00:54:15.770 --> 00:54:20.770
is a case brought by the descendant of somebody
1067
00:54:21.420 --> 00:54:24.340
who was pictured in one of Dr. Mengele's photo.
1068
00:54:24.340 --> 00:54:27.644
But why don't you state what you believe
1069
00:54:27.644 --> 00:54:31.510
you are clients' property right is to this.
1070
00:54:31.510 --> 00:54:33.340
So again your honor
1071
00:54:33.340 --> 00:54:34.720
that would have to...
1072
00:54:34.720 --> 00:54:36.620
So I think that the general principle
1073
00:54:36.620 --> 00:54:41.590
is the property interest belongs
1074
00:54:41.590 --> 00:54:44.790
to the photographer unless it's taken
1075
00:54:44.790 --> 00:54:47.290
away from the photographer under a criminal proceeding
1076
00:54:47.290 --> 00:54:48.730
or something like that, right?
1077
00:54:48.730 --> 00:54:51.023
But this is something like that.
1078
00:54:51.023 --> 00:54:52.220
But that's the thing
1079
00:54:52.220 --> 00:54:53.610
it's not something like that.
1080
00:54:53.610 --> 00:54:57.670
It's the claim here and I think Mr. Crump acknowledged
1081
00:54:57.670 --> 00:55:00.800
that if this claim was brought by the Boston Globe,
1082
00:55:00.800 --> 00:55:02.110
it would be exactly the same.
1083
00:55:02.110 --> 00:55:03.120
Because what they're asking
1084
00:55:03.120 --> 00:55:04.767
for is a property interest
1085
00:55:04.767 --> 00:55:07.221
which means an interest against the world.
1086
00:55:07.221 --> 00:55:08.640
But if you don't have a property interest
1087
00:55:08.640 --> 00:55:12.680
you can define maybe a client should be finding
1088
00:55:12.680 --> 00:55:14.660
an interpleader action.
1089
00:55:14.660 --> 00:55:18.597
The issue as they've defined
1090
00:55:18.597 --> 00:55:23.597
it as I understand it is that when you have a person
1091
00:55:25.330 --> 00:55:26.570
who's been, I'll say photograph
1092
00:55:26.570 --> 00:55:30.299
instead of daguerreotype for ease.
1093
00:55:30.299 --> 00:55:34.140
If you have somebody in there's a photograph
1094
00:55:34.140 --> 00:55:38.480
and that photograph has been taken in circumstances
1095
00:55:38.480 --> 00:55:41.900
that constituted a despicable crime
1096
00:55:41.900 --> 00:55:45.710
that the photographer or anyone complicit
1097
00:55:45.710 --> 00:55:48.060
in the taking of that photograph
1098
00:55:48.060 --> 00:55:51.660
does not have ownership of that photograph.
1099
00:55:51.660 --> 00:55:55.410
Well that may be their argument,
1100
00:55:55.410 --> 00:55:58.650
but again and I'm just repeating myself,
1101
00:55:58.650 --> 00:56:00.600
even if they're right about that argument,
1102
00:56:00.600 --> 00:56:03.090
it seems to me that the claims have to be these claims,
1103
00:56:03.090 --> 00:56:04.670
just these particular client claims,
1104
00:56:04.670 --> 00:56:06.990
which are based on common law property rights
1105
00:56:06.990 --> 00:56:11.020
have to be dismissed because they're necessary precondition
1106
00:56:11.020 --> 00:56:13.000
for each one of them is that the plaintiff
1107
00:56:13.000 --> 00:56:14.050
have a property right.
1108
00:56:14.050 --> 00:56:14.960
Harvard's property right
1109
00:56:14.960 --> 00:56:16.580
at this point I don't think matters
1110
00:56:16.580 --> 00:56:18.640
and if you disagreed with us on the first question
1111
00:56:18.640 --> 00:56:21.200
and you disagreed with us on the statute of limitations
1112
00:56:21.200 --> 00:56:23.180
then there might have to be a fight in court
1113
00:56:23.180 --> 00:56:28.180
about who has better title for lack of a better phrase.
1114
00:56:29.370 --> 00:56:30.640
But I think the argument
1115
00:56:30.640 --> 00:56:33.710
here is that you never have to engage
1116
00:56:33.710 --> 00:56:36.733
in that kind of determination because the plaintiff
1117
00:56:36.733 --> 00:56:38.810
just as a matter of law.
1118
00:56:38.810 --> 00:56:42.270
But the product of that is that you get to retain
1119
00:56:42.270 --> 00:56:45.660
the possession and we're not sure that you have the right
1120
00:56:45.660 --> 00:56:46.493
to it either.
1121
00:56:46.493 --> 00:56:49.470
I take it you're right Peabody Essex Museum
1122
00:56:49.470 --> 00:56:54.010
discovered this from their vault 40 years ago.
1123
00:56:54.010 --> 00:56:56.623
And because they've held it for 40 years,
1124
00:56:58.390 --> 00:56:59.800
they're sort of...
1125
00:56:59.800 --> 00:57:02.100
I guess Peabody Essex Museum owns it.
1126
00:57:02.100 --> 00:57:05.067
I mean I think that would be one of the arguments
1127
00:57:05.067 --> 00:57:05.910
that would probably make.
1128
00:57:05.910 --> 00:57:07.683
But that doesn't deal with the fact
1129
00:57:07.683 --> 00:57:09.870
that the creation of it comes
1130
00:57:09.870 --> 00:57:12.850
out of this sort of horrible situation.
1131
00:57:12.850 --> 00:57:15.390
And we don't have cases that tell
1132
00:57:15.390 --> 00:57:17.630
us what to do at least no one...
1133
00:57:17.630 --> 00:57:18.950
You've not, no one's pointed
1134
00:57:18.950 --> 00:57:21.690
us to what to do about this object
1135
00:57:21.690 --> 00:57:24.340
'cause it's a little different from child porn.
1136
00:57:24.340 --> 00:57:26.750
It's not a crime the daguerreotype
1137
00:57:26.750 --> 00:57:30.630
it's the criminal circumstances creating it.
1138
00:57:30.630 --> 00:57:32.350
Right, I think you're right
1139
00:57:32.350 --> 00:57:34.240
that we don't have cases directly on point.
1140
00:57:34.240 --> 00:57:36.890
We do have cases that are somewhat analogous
1141
00:57:36.890 --> 00:57:38.870
and they all, I think-
1142
00:57:38.870 --> 00:57:40.410
Seem to be very analogous
1143
00:57:40.410 --> 00:57:43.650
'cause they're all cases in which a reporter
1144
00:57:43.650 --> 00:57:48.650
is following a police officer into occasion.
1145
00:57:50.400 --> 00:57:53.450
But the rule that you encapsulate,
1146
00:57:53.450 --> 00:57:56.510
which is that a photographer has the right to the photo.
1147
00:57:56.510 --> 00:57:58.140
I think it's too simple.
1148
00:57:58.140 --> 00:58:00.160
It's just it's more complicated-
1149
00:58:00.160 --> 00:58:02.590
Well I think maybe the question
1150
00:58:02.590 --> 00:58:07.430
is again I'm sorry to say this again, but the question
1151
00:58:07.430 --> 00:58:10.120
I think at this stage because if the plaintiff
1152
00:58:10.120 --> 00:58:11.890
is bringing property (indistinct)
1153
00:58:11.890 --> 00:58:13.790
isn't who has the right to the photo
1154
00:58:13.790 --> 00:58:15.590
but whether the plaintiff does (indistinct).
1155
00:58:15.590 --> 00:58:17.130
Just wait, just so I understand,
1156
00:58:17.130 --> 00:58:20.020
you're saying that you don't have, Harvard
1157
00:58:20.020 --> 00:58:23.530
doesn't have to prove anything because they've got it.
1158
00:58:23.530 --> 00:58:27.279
And the plaintiffs haven't proven
1159
00:58:27.279 --> 00:58:29.540
that they've got a right to go forward
1160
00:58:29.540 --> 00:58:33.110
because the motion to dismiss has been granted
1161
00:58:33.110 --> 00:58:35.340
and so it's over?
1162
00:58:35.340 --> 00:58:37.750
Well your honor again I think Harvard,
1163
00:58:37.750 --> 00:58:38.583
there would be a dispute
1164
00:58:38.583 --> 00:58:40.980
about that if there were...
1165
00:58:40.980 --> 00:58:42.560
If the court recognized the property right
1166
00:58:42.560 --> 00:58:43.726
in the plaintiffs.
1167
00:58:43.726 --> 00:58:45.820
Let me ask you a question about the property right.
1168
00:58:45.820 --> 00:58:46.956
Sure.
1169
00:58:46.956 --> 00:58:49.340
And that is that as I read the judge's decision,
1170
00:58:49.340 --> 00:58:50.830
he looked at the counts
1171
00:58:50.830 --> 00:58:52.360
and he broke them down into the counts
1172
00:58:52.360 --> 00:58:54.040
were related to property.
1173
00:58:54.040 --> 00:58:58.810
And basically he ended up saying that he basically
1174
00:58:58.810 --> 00:59:00.090
when you look at his reasoning
1175
00:59:00.090 --> 00:59:02.972
it is all based on photography.
1176
00:59:02.972 --> 00:59:06.400
That's what his cases are and he's finding the subject
1177
00:59:06.400 --> 00:59:08.680
has no interest in photography,
1178
00:59:08.680 --> 00:59:11.290
but my suggestion or question
1179
00:59:11.290 --> 00:59:13.100
is what if we don't look at it that way?
1180
00:59:13.100 --> 00:59:16.636
What if we look at the daguerreotype as an object,
1181
00:59:16.636 --> 00:59:18.730
why doesn't that change the analysis?
1182
00:59:18.730 --> 00:59:21.420
Well, I think some of the cases are about negatives too.
1183
00:59:21.420 --> 00:59:22.280
And I think the reason
1184
00:59:22.280 --> 00:59:24.720
it doesn't is because going forward I mean
1185
00:59:24.720 --> 00:59:27.211
obviously the court has to think about what the consequences
1186
00:59:27.211 --> 00:59:31.020
of the rule that it adopts is.
1187
00:59:31.020 --> 00:59:34.820
And as the media organizations brief explains,
1188
00:59:34.820 --> 00:59:38.030
there will be a significant disincentive to museums,
1189
00:59:38.030 --> 00:59:43.030
news organizations and the like of displaying to the public.
1190
00:59:43.190 --> 00:59:47.608
Some of the most important images of-
1191
00:59:47.608 --> 00:59:49.026
Well council there are a lot,
1192
00:59:49.026 --> 00:59:53.870
there are systems in place for re prey repatriating
1193
00:59:53.870 --> 00:59:57.963
remains for native Americans and their objects,
1194
00:59:58.890 --> 01:00:00.692
why would should there not be...
1195
01:00:00.692 --> 01:00:03.900
Unfortunately don't have something in place
1196
01:00:03.900 --> 01:00:07.200
through Congress to do that for African-Americans
1197
01:00:07.200 --> 01:00:09.110
and descendants.
1198
01:00:09.110 --> 01:00:09.943
Go ahead.
1199
01:00:09.943 --> 01:00:10.776
I'm sorry.
1200
01:00:10.776 --> 01:00:11.609
So that's...
1201
01:00:11.609 --> 01:00:12.610
I'm very glad you raised that, your honor,
1202
01:00:12.610 --> 01:00:14.210
because I'm not saying there shouldn't be.
1203
01:00:14.210 --> 01:00:19.010
I'm saying that if there were, and there may well be good
1204
01:00:19.010 --> 01:00:20.840
reasons to do something like
1205
01:00:20.840 --> 01:00:23.560
that it would be a legislative function.
1206
01:00:23.560 --> 01:00:25.860
If you look at the law that you're talking
1207
01:00:25.860 --> 01:00:29.140
about is that Native American Graves Protection
1208
01:00:29.140 --> 01:00:31.390
and Repatriation Act of 1990
1209
01:00:31.390 --> 01:00:35.960
it's 13 sections in the US code many, many sub sections
1210
01:00:35.960 --> 01:00:40.120
30 pages of department of interior regulations
1211
01:00:40.120 --> 01:00:41.890
because these things are so...
1212
01:00:41.890 --> 01:00:43.590
These questions are so complicated.
1213
01:00:43.590 --> 01:00:45.060
You have to weigh various rights
1214
01:00:45.060 --> 01:00:46.522
of various stakeholders against each other.
1215
01:00:46.522 --> 01:00:48.630
But do you know are there any other things similar
1216
01:00:48.630 --> 01:00:50.398
to the native American one?
1217
01:00:50.398 --> 01:00:53.510
I'm not aware of any but I think
1218
01:00:53.510 --> 01:00:58.440
there are probably good reasons to have similar.
1219
01:00:58.440 --> 01:01:01.150
There may be, I'm not a lobbyist
1220
01:01:01.150 --> 01:01:02.320
but I'm not lobbying anybody,
1221
01:01:02.320 --> 01:01:03.980
but they're probably good reasons
1222
01:01:03.980 --> 01:01:08.970
to have those kinds of regulatory schemes
1223
01:01:08.970 --> 01:01:10.730
not just limited to native Americans.
1224
01:01:10.730 --> 01:01:15.090
But they're so sort of inherently legislative
1225
01:01:15.090 --> 01:01:19.100
and the judicial tools are so blunt, right?
1226
01:01:19.100 --> 01:01:21.340
You are, there's either a property right
1227
01:01:21.340 --> 01:01:24.730
or there isn't that seems to me that that is one reason
1228
01:01:24.730 --> 01:01:26.780
that courts have never recognized this kind of right.
1229
01:01:26.780 --> 01:01:27.802
I see that my time is-
1230
01:01:27.802 --> 01:01:31.460
But why can't I (indistinct)
1231
01:01:31.460 --> 01:01:36.460
the complaint in the light most favorable to the plaintiff
1232
01:01:36.880 --> 01:01:40.980
as calling for an interpleader action.
1233
01:01:40.980 --> 01:01:42.860
That is there is property
1234
01:01:43.890 --> 01:01:47.410
and Harvard as the joint tortfeasor
1235
01:01:47.410 --> 01:01:49.320
doesn't have a right to it.
1236
01:01:49.320 --> 01:01:52.810
I want it because it's my ancestors.
1237
01:01:52.810 --> 01:01:57.810
And there may be others like the family of the professor
1238
01:01:59.120 --> 01:02:02.530
who submitted an (indistinct) suggest to Harvard
1239
01:02:02.530 --> 01:02:05.840
yeah return these to the ancestors.
1240
01:02:05.840 --> 01:02:08.800
So maybe I construe this as an interpleader
1241
01:02:08.800 --> 01:02:13.100
and they intervene in the action as an interested party.
1242
01:02:13.100 --> 01:02:15.690
I mean I'm not sure how you could construe
1243
01:02:15.690 --> 01:02:18.190
the complaint that way-
Why not because I'm supposed
1244
01:02:18.190 --> 01:02:20.930
to construe the complaint,
1245
01:02:20.930 --> 01:02:23.690
not by the little counts that are set forth,
1246
01:02:23.690 --> 01:02:27.800
but just broadly, does it plausibly suggest an action?
1247
01:02:27.800 --> 01:02:29.430
I don't think it plausibly suggests
1248
01:02:29.430 --> 01:02:30.821
an interpreter action-
Not an interpreter.
1249
01:02:30.821 --> 01:02:31.990
Not an interpleader action.
1250
01:02:31.990 --> 01:02:33.520
I mean that I think it plausibly suggests
1251
01:02:33.520 --> 01:02:35.917
of an action why the plaintiff against Harvard,
1252
01:02:35.917 --> 01:02:38.580
but your honor I just wanna make sure
1253
01:02:38.580 --> 01:02:41.654
that I have time to talk about the statute of limitations
1254
01:02:41.654 --> 01:02:42.860
argument, because-
1255
01:02:42.860 --> 01:02:46.620
Well I'd rather so you fully address my question.
1256
01:02:46.620 --> 01:02:48.440
Why can't I-
Oh, I'm sorry.
1257
01:02:48.440 --> 01:02:50.070
I thought the four corners of the complaint
1258
01:02:50.070 --> 01:02:51.860
and say this is possibly suggesting
1259
01:02:51.860 --> 01:02:54.330
that Harvard doesn't own it, I want it.
1260
01:02:54.330 --> 01:02:56.480
And there may be others, it's an interpleader action.
1261
01:02:56.480 --> 01:02:58.790
It just, I mean I don't know what to say
1262
01:02:58.790 --> 01:02:59.920
other than it wasn't pleaded
1263
01:02:59.920 --> 01:03:01.260
as an interpleader action-
But you're saying
1264
01:03:01.260 --> 01:03:04.610
we confirm the dismissal and she can refile,
1265
01:03:04.610 --> 01:03:06.460
it's an interpleader, perhaps.
1266
01:03:06.460 --> 01:03:07.950
Well I don't know if she could...
1267
01:03:07.950 --> 01:03:09.010
I don't think she could refile
1268
01:03:09.010 --> 01:03:10.660
because of the statute of limitations,
1269
01:03:10.660 --> 01:03:15.660
but also I'm not sure how Estoppel rules would work
1270
01:03:16.050 --> 01:03:19.240
in that case because that just wasn't the way
1271
01:03:19.240 --> 01:03:20.073
this was pleaded.
1272
01:03:20.073 --> 01:03:23.190
And even if it was, I'm not sure how an interpleader action
1273
01:03:23.190 --> 01:03:27.570
helps if the plaintiff herself can establish
1274
01:03:27.570 --> 01:03:28.827
a property right.
1275
01:03:28.827 --> 01:03:30.980
Maybe the argument is that other people
1276
01:03:30.980 --> 01:03:33.830
can but she would still be the plaintiff
1277
01:03:33.830 --> 01:03:36.880
in an interpleader action I think it seems to me.
1278
01:03:36.880 --> 01:03:37.923
I don't know if I answered.
1279
01:03:37.923 --> 01:03:40.100
Your property it's been stolen
1280
01:03:40.100 --> 01:03:41.470
or there's property out there.
1281
01:03:41.470 --> 01:03:43.526
It doesn't belong to whoever's holding it.
1282
01:03:43.526 --> 01:03:45.957
You can't do anything about it-
1283
01:03:45.957 --> 01:03:48.270
No, you can but if you bring an interpleader
1284
01:03:48.270 --> 01:03:52.630
I think, this was not an issue in this case
1285
01:03:52.630 --> 01:03:54.430
before, but I think that if you bring
1286
01:03:54.430 --> 01:03:55.660
an interpleader action,
1287
01:03:55.660 --> 01:03:57.560
you can be dismissed from that interpleader action
1288
01:03:57.560 --> 01:03:59.920
if it's clear on the face of the pleadings
1289
01:03:59.920 --> 01:04:03.050
that you don't have a property right, right?
1290
01:04:03.050 --> 01:04:05.230
I think that's how that would be resolved.
1291
01:04:05.230 --> 01:04:07.610
But between the different people
1292
01:04:07.610 --> 01:04:12.610
who would have a right there really is only Harvard
1293
01:04:12.860 --> 01:04:17.470
Peabody Essex, potentially the heirs of the photographer
1294
01:04:17.470 --> 01:04:19.130
and the descendants, right?
1295
01:04:19.130 --> 01:04:23.810
There's not anyone else out there unless somebody
1296
01:04:23.810 --> 01:04:25.500
gives some title.
1297
01:04:25.500 --> 01:04:29.610
I mean like Nazi artwork, someone owned the picture,
1298
01:04:29.610 --> 01:04:33.345
They sold it, but there were compelled
1299
01:04:33.345 --> 01:04:35.330
sales of these things.
1300
01:04:35.330 --> 01:04:37.410
So you undo those transactions.
1301
01:04:37.410 --> 01:04:39.720
We don't have that kind of issue here.
1302
01:04:39.720 --> 01:04:42.410
We have an...
1303
01:04:42.410 --> 01:04:45.730
The question is, does Harvard get to retain
1304
01:04:45.730 --> 01:04:47.170
this in those circumstances
1305
01:04:47.170 --> 01:04:52.170
or does one of the other potential people connected to this?
1306
01:04:53.140 --> 01:04:53.973
And so your honor,
1307
01:04:53.973 --> 01:04:55.870
I think you would just have to reconceptualize
1308
01:04:55.870 --> 01:04:57.950
the whole complaint to get there.
1309
01:04:57.950 --> 01:04:59.510
Because it seems to me that the complaint
1310
01:04:59.510 --> 01:05:02.930
was filed as a property right
1311
01:05:02.930 --> 01:05:04.878
depending on a property right on behalf of the-
1312
01:05:04.878 --> 01:05:09.320
(indistinct) standing, she has to somehow devise
1313
01:05:09.320 --> 01:05:12.460
her connection to this and why she has a legal right
1314
01:05:12.460 --> 01:05:13.740
to it, right?
1315
01:05:13.740 --> 01:05:14.573
Whether-
1316
01:05:14.573 --> 01:05:15.406
I would think.
1317
01:05:15.406 --> 01:05:17.380
And standing as a lower bar
1318
01:05:17.380 --> 01:05:20.250
to get over then actually winning this thing.
1319
01:05:20.250 --> 01:05:22.360
I don't think it's a standing argument.
1320
01:05:22.360 --> 01:05:25.590
I mean I don't think it's a standing argument.
1321
01:05:25.590 --> 01:05:26.640
I think it's an argument
1322
01:05:26.640 --> 01:05:29.330
about whether there would be a claim stated,
1323
01:05:29.330 --> 01:05:31.300
but if I could just get to the...
1324
01:05:31.300 --> 01:05:33.190
If I could, unless the court has further questions
1325
01:05:33.190 --> 01:05:35.480
on this, I just wanna make sure I have a little time
1326
01:05:35.480 --> 01:05:37.340
to talk about the statute of limitations,
1327
01:05:37.340 --> 01:05:42.340
because your honor mentioned the discovery rule,
1328
01:05:42.520 --> 01:05:45.570
which is that the statute of limitations starts running
1329
01:05:45.570 --> 01:05:48.640
on the date when a plaintiff discovers or any earlier date,
1330
01:05:48.640 --> 01:05:50.690
when she should reasonably have discovered
1331
01:05:50.690 --> 01:05:52.340
that she's been harmed or may have been harmed
1332
01:05:52.340 --> 01:05:53.890
by a defendant's conduct.
1333
01:05:53.890 --> 01:05:57.210
And in this case, the complaint itself incorporates
1334
01:05:57.210 --> 01:06:01.350
a letter from Ms. Lanier to Harvard
1335
01:06:01.350 --> 01:06:04.300
that she attached to her opposition brief.
1336
01:06:04.300 --> 01:06:07.700
And this is a letter from 2011 that says I have historical
1337
01:06:07.700 --> 01:06:10.180
and US census information confirming
1338
01:06:10.180 --> 01:06:12.650
that these two slaves are in fact my ancestors.
1339
01:06:12.650 --> 01:06:15.840
And it seems to me that the discovery rule obviously turns
1340
01:06:15.840 --> 01:06:18.110
on the nature of the case that you're pleading.
1341
01:06:18.110 --> 01:06:20.260
And the nature of the case that Ms. Lanier
1342
01:06:20.260 --> 01:06:22.152
is pleading, as I think was confirmed-
1343
01:06:22.152 --> 01:06:24.540
Right and the nature of (indistinct) case
1344
01:06:24.540 --> 01:06:26.820
one at least part of it is replevin,
1345
01:06:26.820 --> 01:06:31.670
which requires the demand in a response before it, right?
1346
01:06:31.670 --> 01:06:35.740
No it only requires a demand or response
1347
01:06:35.740 --> 01:06:37.070
and this is a quote from this court's case
1348
01:06:37.070 --> 01:06:40.820
in Atlantic financial, if the defendant's assumption,
1349
01:06:40.820 --> 01:06:44.960
of dominion over the property was it doesn't require
1350
01:06:44.960 --> 01:06:47.610
a demand or response when the defendant's assumption
1351
01:06:47.610 --> 01:06:49.610
or dominion over the property
1352
01:06:49.610 --> 01:06:52.320
was wrongful from the beginning and their claim
1353
01:06:52.320 --> 01:06:53.580
of course you have to read the complaint
1354
01:06:53.580 --> 01:06:54.970
in the light most favorable to them.
1355
01:06:54.970 --> 01:06:57.730
And their claim is that Harvard's possession
1356
01:06:57.730 --> 01:06:59.350
was wrongful from the beginning
1357
01:06:59.350 --> 01:07:01.790
now, of course we disagree with that but-
1358
01:07:01.790 --> 01:07:03.170
What about the back and forth
1359
01:07:03.170 --> 01:07:05.720
about whether she is an ancestor?
1360
01:07:05.720 --> 01:07:10.180
So Harvard wants proof that she isn't .
1361
01:07:10.180 --> 01:07:12.700
I don't know why they wanted it, if I'm not sure
1362
01:07:12.700 --> 01:07:15.720
why they wanted if their view is you don't get it anyway.
1363
01:07:15.720 --> 01:07:19.850
But is there some potential discovery rule issue
1364
01:07:19.850 --> 01:07:21.290
related to the fact that Harvard
1365
01:07:21.290 --> 01:07:23.940
think show me you're the ancestor.
1366
01:07:23.940 --> 01:07:25.840
It's very difficult for the reasons
1367
01:07:25.840 --> 01:07:28.720
you're posing counsel say for a slave
1368
01:07:28.720 --> 01:07:31.030
to prove their ancestry
1369
01:07:31.030 --> 01:07:36.030
a former slave that descend to connect ancestry to a slave.
1370
01:07:36.620 --> 01:07:40.120
So does that give them some tolling
1371
01:07:40.120 --> 01:07:43.010
under the discovery rule
1372
01:07:43.010 --> 01:07:45.500
because it's such a difficult question
1373
01:07:45.500 --> 01:07:47.710
to establish ancestry.
1374
01:07:47.710 --> 01:07:50.470
So a few points first for purposes
1375
01:07:50.470 --> 01:07:51.670
of this, I just wanna make clear
1376
01:07:51.670 --> 01:07:53.260
maybe it's not responsive to your question,
1377
01:07:53.260 --> 01:07:56.240
but for purposes of this proceeding
1378
01:07:56.240 --> 01:07:59.610
we're not disputing Ms. Lanier's descendants-
1379
01:07:59.610 --> 01:08:02.650
But I'm saying that Harvard didn't...
1380
01:08:02.650 --> 01:08:05.532
Harvard made that an issue at one point, right?
1381
01:08:05.532 --> 01:08:10.340
There's some back and forth between Ms. Lanier and Harvard
1382
01:08:10.340 --> 01:08:14.410
about whether she's given proof of her ancestry, right?
1383
01:08:14.410 --> 01:08:15.880
There is some back and forth.
1384
01:08:15.880 --> 01:08:16.970
There's a 2014...
1385
01:08:16.970 --> 01:08:19.530
There's an article published in a newspaper
1386
01:08:19.530 --> 01:08:22.782
in the plaintiff's hometown about the plaintiff in 2014.
1387
01:08:22.782 --> 01:08:26.210
And there's a quote in that newspaper article
1388
01:08:26.210 --> 01:08:30.030
from the Peabody Museum that the quote
1389
01:08:30.030 --> 01:08:31.880
is she's given us nothing that directly connects
1390
01:08:31.880 --> 01:08:34.213
her ancestors to the person in our photograph.
1391
01:08:35.150 --> 01:08:37.780
And then it goes on and she claims she has more evidence,
1392
01:08:37.780 --> 01:08:38.723
but we haven't seen it.
1393
01:08:38.723 --> 01:08:42.489
I think that's what your, your honor is referring to.
1394
01:08:42.489 --> 01:08:46.263
So that is true, that happened.
1395
01:08:46.263 --> 01:08:48.673
And I just wanna say this isn't in the record,
1396
01:08:48.673 --> 01:08:49.523
but I think-
1397
01:08:49.523 --> 01:08:51.920
But isn't there some allegation...
1398
01:08:51.920 --> 01:08:54.710
Again I don't remember the complainant detailed
1399
01:08:54.710 --> 01:08:56.700
but isn't there some suggestion in the complaint
1400
01:08:56.700 --> 01:09:01.700
that she was led on by Harvard on this ancestry issue.
1401
01:09:02.100 --> 01:09:05.500
And therefore again not saying it's true,
1402
01:09:05.500 --> 01:09:06.950
I'm just saying that it's the motion
1403
01:09:06.950 --> 01:09:09.328
to dismiss where we assume everything she says is true.
1404
01:09:09.328 --> 01:09:12.550
Right, okay I think I understand the question.
1405
01:09:12.550 --> 01:09:16.890
So I read you the quote from her letter to Harvard,
1406
01:09:16.890 --> 01:09:20.640
where she says that she has information
1407
01:09:20.640 --> 01:09:23.530
that Renty and Delia are in fact her ancestors.
1408
01:09:23.530 --> 01:09:26.580
And I think for purposes of the discovery rule,
1409
01:09:26.580 --> 01:09:28.150
that is a definitive statement
1410
01:09:28.150 --> 01:09:29.620
you don't need a definitive statement
1411
01:09:29.620 --> 01:09:31.520
for the discovery rule, but that is one.
1412
01:09:31.520 --> 01:09:34.209
Right now I think the plaintiff argues
1413
01:09:34.209 --> 01:09:37.550
that she was led on after that point
1414
01:09:37.550 --> 01:09:40.350
I'm not totally sure what the basis for that is.
1415
01:09:40.350 --> 01:09:42.760
But again, in the record, the 2014 article,
1416
01:09:42.760 --> 01:09:47.070
I just read you 2014 article was a public pronouncement
1417
01:09:47.070 --> 01:09:51.590
that Harvard did not think that the information
1418
01:09:51.590 --> 01:09:55.170
she provided established the ancestry
1419
01:09:55.170 --> 01:09:57.240
and so even if you needed something
1420
01:09:57.240 --> 01:09:59.895
like that you know that by 2014,
1421
01:09:59.895 --> 01:10:04.490
there was a public statement by Harvard rejecting the claim.
1422
01:10:04.490 --> 01:10:06.620
And so at least by 2014,
1423
01:10:06.620 --> 01:10:09.210
the statute of limitations must have started running
1424
01:10:09.210 --> 01:10:10.962
if not in 2011.
1425
01:10:10.962 --> 01:10:13.930
That's the reason we went back and forth
1426
01:10:13.930 --> 01:10:16.183
on that in the briefing.
1427
01:10:19.130 --> 01:10:21.270
Okay thank you.
1428
01:10:21.270 --> 01:10:22.740
Thank you very much your honors.
1429
01:10:22.740 --> 01:10:23.640
All arise.
1430
01:10:26.727 --> 01:10:29.144
(indistinct)