From the new, 4th edition of the Plater, Abrams,Graham, Heinzerling, Wirth & Hall casebook (Aspen).


(1) Justice Scalia in Milwaukee where he spoke at the opening of the new Marquette University Law School building.  In his speech, Scalia stressed the impact of teaching over scholarship for law school professors.  He said, “The reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom.”  The annual discussion of the value of legal scholarship seems to have begun, as other blogs have been debating the article, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship. Why does everything have to be so black and white?  We should all strive to be great teachers, and write different forms of scholarship that are of value to various audiences.

(2) VT Democratic Governor Recount Underway.  Don’t plan on going to the county courthouses to turn in your passport applications or do other business; they’re busy recounting ballots.

(3) Politics: Obama Speaks Out Against Pastor’s Plan to Burn Koran and Chicago’s Mayor Daley not running for re-election.

(4) BP takes some of the blame for the Gulf Oil Spill…maybe.  See here.

(5) Montpelier, Vermont, first state capitol to adopt “sustainable” master plan.

Today was the first day of classes at Vermont Law School, and I’m teaching Natural Resoucres Law.  I enjoy teaching this course immensely.  Today we identified three key questions: (1) What is a natural resource?; (2) Who should protect natural resources?; and (3) Why should we protect natural resources?  These are three questions that must be answered to create natural resources law and policy.

One of my favorite parts of the first day of class is asking students, what is a natural resource?  Bison? Cattle? Hamburger? Trees? Lumber?  We have strong viewpoints as to what we should protect as natural resources, but we often give less thought to the cultural, social, artistic, religious, and philsophical reasons for labeling some things as ‘natural resources’ and others not, and, therefore, choosing what deserves protection.

(Of note: It’s also my daughter’s first day of Kindergarten.  I think I’m more nervous about Kindergarten than she is!)

Yesterday my family and I hiked up to the top of Big Deer Mountain in Vermont’s New Discovery State Park (which is in Groton State Forest), followed by swimming at Boulder Beach.  I’d highly recommend the hike for kids; mostly flat and dry followed by a fun uphill rock climb.

State Parks are a fantastic resource.  My Natural Resources Law course includes a lot of discussion about National Parks, and we have an annual field trip to Marsh-Billings-Rockefeller National Historic Park in Woodstock, Vermont (the only national park devoted to America’s conservation history).  But this year, I’m going to spend some time on the development of state parks, and how states have determined how to best protect these resources and for what purposes.

If you teach statutory interpretation principles in any course, I offer up my favorite Supreme Court case: Nix v. Hedden (U.S. Supreme Court, 1893)

It asks an intriguing question – Is a tomato a fruit or a vegetable?

The full opinion follows (yes, it’s very short).

Nix v. Hedden, 149 U.S. 304 (1893)

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The single question in this case is whether tomatoes, considered as provisions, are to be classed as “vegetables” or as “fruit,” within the meaning of the Tariff Act of 1883.

The only witnesses called at the trial testified that neither “vegetables” nor “fruit” had any special meaning in trade or commerce, different from that given in the dictionaries; and that they had the same meaning in trade to-day that they had in March 1883.

The passages cited from the dictionaries define the word “fruit” as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are “fruit,” as distinguished from “vegetables,” in common speech, or within the meaning of the Tariff Act.

There being no evidence that the words “fruit” and “vegetables” have acquired any special meaning in trade or commerce, they must receive their ordinary meaning.  Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court. Brown v. Piper, 91 U.S. 37, 42; Jones v. United States, 137 U.S. 202, 216; Nelson v. Cushing, 2 Cush. 519, 532, 533; Page v. Fawcet, 1 Leon. 242; Taylor on Evidence, (8th ed.) §§ 16, 21.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes with fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: “We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand, in speaking generally of provisions, beans may well be included under the term ‘vegetables.’ As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced.” Robertson v. Salomon, 130 U.S. 412, 414.

Judgment affirmed.