Or more precisely, is a fish a "tangible object" in the sense that throwing undersized fish overboard would fall within the purview of 18 U.S.C. § 1519, which states that
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
John Brewer alerts us to the fact that the Supreme Court has recently agreed to review the holding of a lower court that the noun phrase "'tangible object,' as § 1519 uses that term, unambiguously applies to fish.”
John writes that
It may also be relevant that the criminal statute in question was enacted as part of the Sarbanes-Oxley Act (generally understood to have been passed in response to Enron-type scandals which inter alia involved allegedly improper shredding of evidence of accounting chicanery) whereas Yates was the captain of a fishing vessel which was busted catching grouper below the minimum legal size and then impeded the government’s investigation by throwing the evidence (i.e. the undersized fish) overboard.
This reminds me of a passage in Eben Moglen's "Anarchism Triumphant: Free Software and the Death of Copyright" (First Monday, August 1999):
[I]n my role as a legal historian concerned with the secular (that is, very long term) development of legal thought, I claim that legal regimes based on sharp but unpredictable distinctions among similar objects are radically unstable. They fall apart over time because every instance of the rules' application is an invitation to at least one side to claim that instead of fitting in ideal category A the particular object in dispute should be deemed to fit instead in category B, where the rules will be more favorable to the party making the claim. This game – about whether a typewriter should be deemed a musical instrument for purposes of railway rate regulation, or whether a steam shovel is a motor vehicle – is the frequent stuff of legal ingenuity. But when the conventionally-approved legal categories require judges to distinguish among the identical, the game is infinitely lengthy, infinitely costly, and almost infinitely offensive to the unbiased bystander.
Prof. Moglen footnotes a more positive view of the same process from S.F.C. Milsom, Historical Foundations of the Common Law, 1981:
The life of the common law has been in the abuse of its elementary ideas. If the rules of property give what now seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit the phenomena of property. If the rules of contract give what now seems an unjust answer, try tort. … If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence. And so the legal world goes round.
I've quoted Prof. Moglen before ("Allegations of forced fermatic practices", 11/27/2003), and as before, I don't entirely agree with his conclusion. It seems to me that the common law, as Moglen and Milsom describe it, is like human intelligence in general, which is constantly using (what in other circumstances we call) analogy and metaphor to put old things into new frameworks, or new things into old frameworks. This makes it difficult to create workable semantic ontologies, or to keep track of word senses — and it certainly makes work for lawyers. But the whole system has been stumbling along for some time, and seems likely to continue on its chaotically stable course.
Update — Some relevant earlier posts:
"Is a cow a motor vehicle?", 4/16/2006
"Grand Theft Bovine; Or, When is an antelope not a document?", 4/19/2006
"Is a cow a negotiable instrument? Can a woman be a 'reasonable man'?", 4/21/2006