January 31, 2004

Juries In Complex Litigation

In a discussion of a related topic, Professor Bernstein asserts that:

It's obviously foolish to have such complex issues of medical causation being determined before a nonexpert jury in an adversarial process to begin with . . . .
While I understand the intuitive appeal of Bernstein's proposition, I am less sure certain that retention of the jury system in complex cases, including complex medical cases, is "obviously foolish."

Whatever the wisdom of such jury trials, there is a constitutional impediment to restricting the use of juries in this and many (if not most) other legal contexts. See U.S. Consti. amend. VII ("In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ."); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708-09 (1999) ("The Seventh Amendment thus applies not only to common-law causes of action but also to statutory causes of action analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.") (internal quotes omitted). One might readily infer from this circumstance that the founding generation considered the right to juries in civil trials for damages to be indispensible rather than foolish. The issue was expressly raised by the anti-federalists as a reason for opposing the new federal Constitution. See Federalist No. 83; see also Philip B. Kurland & Ralph Lerner, Debate in Pennsylvania Ratifying Convention, in The Founders' Constitution (1987).

Perhaps, Bernstein thinks that the the complexity of modern life has rendered the Seventh Amendment less wise. Or maybe he thinks that the the amendment was ill-advised from the very beginning. It may be that, commenting solely on the wisdom of jury trials in a particular context, Bernstein has not even considered the constitutional issue. I do not think that it is impossible that one might marshal a convincing case for altering the constitutional text on this matter, but it is significant that we are talking about discarding a legal norm of constitutional dimension. This fact certainly gives me pause.

Setting aside the constitutional issue, I am a little hardpressed to articulate an alternative to the jury system in complex cases that is not problematic itself. Off the top of my head, I can think of only two alternatives: bench trials (i.e., trials in which the judge acts as factfinder) or expert juries. The first option may provide for a more educated factfinder in some general sense; every judge is a lawyer, after all. But most judges possess no medical expertise. The second option would place medical liability decisions in the hands of parties who are certainly not disinterested in the state of medical malpractice caselaw. (I assume that that "expert juries" would effectively have to consist of practicing doctors in the medical context.)

The jury system has shortcomings that are fairly obvious. These shortcomings are, no doubt, pronounced in complex civil cases. Nonetheless, I think that the contempt sometimes expressed for jurors is overstated (e.g., the derisive observation that cases are decided by twelve persons too dim to avoid jury duty). As Judge Hugh H. Bownes once observed, the Federal Rules of Civil Procedure provide means of reducing and/or managing complexity. If they are insufficient to the task, I would propose revisiting these rules rather than attacking the right to a jury in civil trials.

Posted by Curmudgeonly Clerk at 09:00 PM | Comments (9)

January 30, 2004

Journalistic Malpractice?

Just the other day I was commenting on the fecklessness of journalists. I now see that I am not the only one who holds the media in low esteem. Among other things, Stuart Buck writes that:

Whenever newspapers write about a subject I'm deeply familiar with, they usually get things wrong. Things that aren't even debatable, and that can be easily checked. It makes you wonder how you can trust what they report about, say, the situation in Iraq, or other subjects that are much more complicated . . . .

When it comes to legal matters, I find that misstatements in the media are pervasive. But more than the errors, which are bound to occur on occasion, it is the apparent unconcern that journalists appear to have regarding such mistakes that really gets under my skin. It is difficult to regard misstatements as mere mistakes when errors are brought to the writer's attention and no correction is forthcoming.

Posted by Curmudgeonly Clerk at 11:53 PM | Comments (11)

January 29, 2004

Obvious B.S.

One of the oddest things about legal disputes is the tendency of all persons involved to immediately begin acting like lawyers, or what they perceive lawyers to be at any rate. The most striking example of this phenomenon that I can think of is defensive and excessively lawyerly responses in depositions and on the witness stand. Ken Lammers provides an excellent example of what I am talking about:

From a transcript of a case for which I am writing a brief:

[About a drug sniffing dog]

Me: Do you know how often your dog gives false positives?

Officer: He doesn't give false positives. We're just unable to verify the alerts at that time.

Really, officer, an infallible dog?

Witnesses often give such answers, and it is hard for me to believe that such responses ever help one's case with juries or judges. An honest, non-combative answer will almost assuredly go further in terms of establishing one's credibility. The lawyers are there to do all of the lawyerly work. So why do witnesses exhibit these predilections for debate, equivocation, non-response, and the like?

Update: Ken Lammers offers additional details here.

Posted by Curmudgeonly Clerk at 09:37 AM | Comments (5)

January 27, 2004


As Walter Olson has noted, a case concerning reparations for slavery has been dismissed, albeit without prejudice. Professor Bainbridge has a post on the topic, in which he argues that such lawsuits are immoral. He writes:

Punish the wrongdoers, you say? Sorry, but the corporation's legal personhood is a mere legal fiction. A corporation is not a more actor. Edward, First Baron Thurlow, put it best: "Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and nobody to be kicked?" The corporation is simply a nexus of contracts between factors of production. As such, there is no moral basis for applying retributive justice to a corporation—there is nothing there to be punished.

So who do we punish when we force the corporation to pay reparations? Since the payment comes out of the corporation's treasury, it reduces the value of the residual claim on the corporation's assets and earnings. In other words, the shareholders pay. Not the directors and officers who actually committed the alleged wrongdoing (who in most of these cases are long dead anyway), but modern shareholders who did nothing wrong. Retributive justice is legitimate only where the actor to be punished has committed acts to which moral blameworthiness can be assigned. Even if you assume the corporation is still benefiting from alleged wrongdoing that happened decades or even centuries ago, which seems implausible, the modern shareholders are mere holders in due course. It is therefore difficult to see a moral basis punishing them. They have done nothing for which they are blameworthy.

I share Bainbridge's sense that these reparations cases are ill-advised. Civil liability resulting from a practice that was legal at the time it was engaged in, no matter how morally repellant it is now recognized to be, seems counter-intuitive on some level. However, I find something about Bainbridge's explanation to be . . . inadequate.

Bainbridge couches the issue as one of retribution. And, perhaps, his thoughts are relevant on the subject of punitive damages. But what about mere compensatory damages? Perhaps, one might respond that those who are owed compensation have passed away in this instance, but would such a claim expire with the claimant's passing? (If "Y" owes a sum of money to "X" when "X" dies, doesn't "X"'s estate have a claim for the money owed by "Y"?)

Would an unjust enrichment theory of liability fare better if the compensatory one fails? I understand that the corporate organization exists in order to allow investors to risk no more than their investment, but might an otherwise innocent third-party be required to disgorge profits that were reaped via another's wrongdoing?

As one might infer from the question marks in the foregoing paragraphs, I am wondering aloud. I have no answers and do not purport to possess any expertise in this area. Moreover, I am content to see these claims dismissed for a whole host of reasons. It is just that I suspect that the must be more moral and legal explanation than the one that Professor Bainbridge has offered thus far.

Update: Overlawyered drew my attention to these critical observations over at Assymetrical Information.

Posted by Curmudgeonly Clerk at 11:55 AM | Comments (3)

January 26, 2004

Campus Speech Codes

The Foundation for Individual Rights in Education has founded a website devoted to monitoring campus speech codes. The website includes a subsection entitled "In the Courts" that identifies free speech cases that arose in the educational context, such as UWM Post, Inc. v. Bd. of Regents of University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991). Speech codes are not the sole danger to "free speech" on college campuses, but F.I.R.E.'s new website looks to be a worthwhile endeavor.

(Link via Virginia Postrel.)

Posted by Curmudgeonly Clerk at 07:48 PM | Comments (1)

January 25, 2004

In Defense Of O'Connor, Sort Of

Of late, Justice O'Connor receives much the same criticism from both the Left and the Right. I am not an admirer of her jurisprudential approach per se. Indeed, I rather enjoyed this mockery of the justice's admirers.

But I think that Justice O'Connor's critics run the risk of overstating their case as well. O'Connor's approach is not beyond justification, particularly if one subscribes to the all too common belief that Legal Realism accurately identifies the nature of appellate jurisprudence in hard cases. Taking this common perception as a given for the purpose of argument, O'Connor's approach can certainly be justified from a policy standpoint.

Consider, for example, Unlearned Hand's condemnation of O'Connor:

Because she is so fond of what I call splitting-the-difference (even though there is so defensible precedent or legal theory for ending up in a compromised and muddled position; think of her 30 years compromise on affirmative action), she is leaving us particularly worse off. The country has a hard enough time reacting to split decisions that may go the other way as soon as a justice retires, and there is not much to do about that. But O'Connor's obsession with carving out the smallest possible ruling almost guarantees a lack of guidance and endurance for her opinions, and betrays the hope that our justices are at least guided, if clearly not controlled, by something other than political preferences.

Matthew Yglesias, in response to a taunt from Jacob Levy in the comments mirrored the central kernal of Hand's critique:

I think the policy consequences of what O'Connor does are rather severe. It's important to get these constitutional questions at least semi-settled so institutions and legislatures can try and cope with the rules that have been laid down. She has this weird way of constantly re-stirring the pot on hot-button issues in a way that just makes everything worse.

Now if the rules of contract or property were subject to such uncertainty, the situation would indeed be unacceptable. Those areas of the law require a high degree of certainty, so that actors may order their affairs. But why must constitutional law on hot-button cultural issues be similarly well-settled? Roe v. Wade and its progeny are certainly as well-settled as controversial socio-political issues may be settled. (Absent some conception of "strong stare decisis," controversial issues by their nature always face some prospect of future reversal.) Yet Roe et al. have not led to any sort of political detente regarding abortion. Indeed, via a series of decisive rulings, the Court seems to have inflamed the issue rather than decided it. Decisive desegregation decisions also led to the school busing crisis, which certainly fanned the flames on a hot-button issue.

Splitting the difference in the affirmative action cases (Grutter and Gratz), for example, allows society to attempt to resolve the issue for itself. Yes, future litigation is absolutely certain. But various institutions remain free to experiment. Variable solutions will be attempted and subseqently adjudicated in the various circuits. What splitting the difference in the affirmative action cases decidely does do is allow a democratic society to struggle toward its own resolution, rather than having it resolved by a body of distant Platonic guardians. Does anyone really suppose that affirmative action in education would be less controversial if the Court had dictated a decisive outcome one way or the other?

Moreover, decisive decisions on political controversies that sharply divide the nation and that are insusceptible to any indisputable legal resolution threaten both the stability of the law and the credibility of the Court as a legal institution. For the only manner in which a decisive decision that turns out to be mistaken may be remedied is through subsequent reversal. See Webster v. Reproductive Health Servs., 492 U.S. 490, 518 (1989) ("Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes.").

Finally, it is possible that one need not necessarily resort to Legal Realism in order to embrace Justice O'Connor's methodology. Yglesias and Hand both seem to take it for granted that the Court's proper role includes the definitive resolution of contentious socio-political disputes for the commonweal of the Republic. I for one reject this instrumentalist vision of the Supreme Court, and I am not alone. Justice Rehnquist, writing for himself and Justices Kennedy and White, has opined that:

. . . [T]he goal of constitutional adjudication is surely not to remove inexorably "politically divisive" issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.

Id. at 521.

Absent some substantive legal criticism of O'Connor's decisions, I see no reason why her results cannot be read as being consonant with the principle that Rehnquist articulates above. It is a virtue and not a fault of the common law system that each case decides only what must be determined and no more. In matters of constitutional adjudication, this virtue is elevated to a principle of adjudication. See Regents of University of Calif. v. Bakke, 438 U.S. 265, 411-12 (1978) (Stevens, J., dissenting) ("'If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.' The more important the issue, the more force there is to this doctrine.") (internal citation omitted). When constitutional decisions are unavoidable, "such decisions will be drawn as narrowly as possible." Sweatt v. Painter, 339 U.S. 629, 631 (1950).

Posted by Curmudgeonly Clerk at 04:00 PM | Comments (3)

The Virtue of Footnotes

William Safire criticizes the utility of footnotes in the New York Times. Coming from a journalist, this sentiment does not surprise me. Journalists are among the least responsible of writers; they seldom possess expertise on anything that they write about, so the idea of citation to authority is quite foreign to them. Indeed, journalists probably have no idea what the relevant authorities would consist of in any given case.

This contempt for journalists is not just my usual curmudgeonry. In recent months, I have contacted three different journalists about blatant factual errors in their law-related stories. Mind you, we are not talking about debatable legal points, but rather matters of fact, about which there is a definite answer. I pointed this out to each of the journalists via e-mail, citing to and quoting from the relevant source. I received polite, non-responsive replies, but there was nary a correction in any of the three cases. Journalists routinely get legal matters wrong in print and simply do not care.

The practice of law is a different animal altogether. One is expected to justify factual matters with evidence and legal matters with authority. Legal citation most frequently occurs in the text itself; whereas footnotes are generally employed for further elaboration, but footnotes do real work. Use of footnotes is, of course, familiar to academic disciplines outside of the law as well.

Footnoting can be taken too far. However, I resent unsourced, unfootnoted writing. When authors write in this fashion, they are essentially demanding that the reader take the author's word for it. Some authors may actually command this level of respect, but more often than not the practice results in misstatement and error. Consider, for example, the frequent corrections that Howard Bashman runs regarding legal coverage in our newspapers.

(Safire link via Crescat Sententia.)

Posted by Curmudgeonly Clerk at 01:57 PM | Comments (1)

The Scope of Legal Indeterminacy

Justice Scalia is in the news once again in connection with the topic of recusal. This New York Times editorial overstates matters, I think, but Scalia has asked for this sort of overstatement as well. In a very nice post that uses this event as a vehicle for discussing Legal Realism, Publius of Legal Fiction explains why either recusal or refusal to recuse is perfectly justified under the law.

Regarding Publius's thesis concerning legal indeterminacy, the real question is not whether indeterminacy exists, but rather how much indeterminacy. That is, is Legal Realism a claim about law at the margins, or a far more pervasive force in the law? I am inclined toward the former conclusion, but such is a difficult position to defend for the reasons elaborated by Professor Leiter here. (See, in particular, pages 31-34.) Indeed, in order to do so, I must surpass H.L.A. Hart. I am not prepared to do so today, but there is always tomorrow . . . .

Posted by Curmudgeonly Clerk at 01:13 PM | Comments (2)

January 24, 2004

Spare The Rod, Spoil The Child

Based on my own recollection of childhood, I am in favor of reasonable corporal punishment. The children that I encounter in public, many of whom apparently have never even been subjected to a mere verbal reprimand by their parents, tend to confirm my assessment. But this isn't really something that one can have a debate about. In my experience, neither folks who approve or disapprove of physical discipline may really be swayed on the issue. I think that this is fine. Within fairly wide bounds, parents have every right to raise their children as they see fit. And that is precisely why I find this story so disturbing. The Toronto Star reports that:

In October, a United Nations committee ruled that Canadian law violates the U.N. Convention on the Rights of the Child, and that Canada should "prohibit all forms of violence against children, however light." The committee specifically called for abolishing Section 43.

But if the Supreme Court does strike down the section, a lot of parents are in for a surprise. Spanking would be no different in law from any other common assault, a criminal act punishable by imprisonment for up to five years.

In Canadian law, any unwelcome touch is considered assault. Any unwelcome force by one person against another, no matter how mild, is illegal. [This is not far from both the civil and criminal law of assault and battery in the United States.]

Historically, various exemptions have applied.

* * *

Only two exceptions still remain. The law continues to offer a legal defence to ship commanders who use force against sailors to maintain order. Similarly, Section 43 of the Criminal Code offers a defence to parents and schoolteachers who hit a child, provided that the purpose is to correct the child's behaviour and that "reasonable" force is used.

The full text states: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

In fairness, the story goes on to recount some disquieting Canadian caselaw. However, I cannot imagine that allowing the state to intrude into the realm of child-rearing will, on balance, do more good than harm. Most parents, for all their faults, are more fit to raise their children than the state. Criminalizing this common parenting technique seems ill-advised. Reassurances, offered by some in the article, that prosecutorial restraint would prevent the criminalization of spanking from turning many parents into common criminals do little to reassure me. In the United States at least, prosecutorial restraint is a little observed phenomenon.

(Link via How Appealing.)

Update: Steve Dillard helpfully points out that reasonable corporal punishment enjoys constitutional protection in the United States, citing Doe v. Heck, 327 F.3d 492 (7th Cir. 2003). Meanwhile, Stuart Buck read the very same article and noted an altogether different concern, writing that the situation in Canada "may explain why some people are generally wary of having the United States sign on to international treaties that could then be used to overrule state and local law."

Posted by Curmudgeonly Clerk at 01:48 PM | Comments (2)

January 23, 2004

Golf, Who Needs It?

For whatever reason, many lawyers play golf. In fact, so many seem to play the game that there appears to be something of a presumption that if you are a lawyer you must also be a golfer. Lawyers will inquire of colleagues if they golf, but the manner in which the question is posed seems to imply that they can conceive of just one possible answer: "Why yes, we should play sometime."

I don't golf. I really cannot even appreciate the game. It bores me to tears for the most part. But when asked the inevitable question, you cannot very well reply that you find your interlocutor's pastime to be dull and unimaginative (much like many such interlocutors). So one like myself must have some explanation for his or her professionally aberrant distaste for chasing a little ball across neatly manicured lawns. Here's mine:

The father of a friend of mine from college golfed professionally. So said friend had occasion to participate in a father-son golf tournament televised on one of the three major networks. There were only three major networks back then.

Now my friend is one of the most earnest and devout Christians that I have ever had occasion to know. I am something of a failure at being a good Christian, but I have always admired his quiet but obvious faith and decency. And the broadcast announcer was, in fact, commenting on his religious devotion just prior to his taking a shot.

Unfortunately, my friend did not hit the ball so well this time. He promptly registered his dismay by taking the Lord's name in vain on camera, which the microphones picked up. His remarks, of course, proceeded just on the heels of the announcer's discussion of his deep and abiding faith.

Now, regular readers are probably already familiar with my temperament. Can you really imagine me on the golf course? I have never personally heard my friend use the word "heck" or even raise his voice. He is a veritable captain of equanimity. If golf moved him to take the Lord's name in vain, then I would end up committing blasphemy or heresy.

Posted by Curmudgeonly Clerk at 04:35 PM | Comments (4)

January 22, 2004

On Caricature and Hyperbole

As reguar readers know all too well, I have been a frequent and vociferous critic of Dahlia Lithwick's articles in Slate. Such criticism never fails to incense her many fans, who often reply that her opinionated commentary is characterized by caricature and hyperbole rather than outright inaccuracy. In some cases, see, e.g., here, Lithwick's writing is simply inaccurate where the law is concerned, and protests of caricature and hyperbole are without merit.

But even when a defense of caricature and hyperbole might arguably be more applicable to Lithwick's writing, it is a highly problematic one. The law is often convoluted and subtle, and, therefore, caricature and hyperbole are not terribly well-suited to legal discussions. Although I can understand why one might find such prose entertaining, it is highly unlikely to be enlightening. For non-lawyers, gross exaggeration is likelier to be outright misleading. Due to the level of specialization in the law these days, even professionals might be misled by such remarks on occasion. For such reasons, it is recommended that lawyers eschew such exaggeration in their professional writing. See Wayne Schiess, Ethical Legal Writing, 21 Rev. Litig. 527, 530 (2002).

Setting aside this discipline-specific difficulty, this caricature and hyperbole defense strikes me as being overstated and somewhat inaccurate where Lithwick is concerned. After all, even caricature and hyperbole are meant to convey a message. Unless Lithwick is just spewing forth mindless invective, there is some sense in which her caricature and hyperbole are meant to be taken seriously. In the end, only so many liberties may be taken with a written text, and all too often Lithwick's defenders must literally explain away her chosen words in their entirety or else offer a reinterpretation therof so at odds with what she wrote that one is no longer even discussing the column that she penned.

Personally, I have never understood what distinguishes Lithwick's legal analysis from the law-related musings of Ann Coulter, a woman with similar credentials. Coulter's over-the-top legal writing, see, e.g., Massachusett's Supreme Court Abolishes Capitalism, Democrats Don't Have the Constitution for Racial Equality and Shouting "Souter" in a Crowded Theater, could also be defended as mere caricature and hyperbole, of course—not that the folks who adore Lithwick's supposed exaggeration-for-effect would be inclined to defend Coulter's equivalent ramblings (or even concede the similarity). However, such a defense of Coulter's screeds fails to apprehend their true flaw, and the same is true concerning Lithwick's articles.

"Caricature" is defined as "exaggeration by means of often ludicrous distortion of parts or characteristics." Merriam-Webster's Collegaiate Dictionary 173 (10th ed. 1993). But even a caricature must accurately resemble the otherwise exaggerated figure in some particular. Otherwise the caricature would be unrecognizable as such. "Hyperbole," which is defined as "extravagent exaggeration," see id. at 570, is susceptible to the same observation. In other words, caricature and hyperbole must be "apt" in some sense, as Professor Volokh puts it. And this is the very problem that I have with Lithwick: her caricature and hyperbole is so often inapt.

Volokh provides a paradigm example of such inaptness today, replete with the legal context that demonstrates why Lithwick's caricature and/or hyperbole regarding a particular Supreme Court justice is so disconnected from reality as to render her characterization not just distorted, but grossly inaccurate and unfair. Indeed, her portrait of the justice in question is so exaggerated that it misrepresents.

Exaggeration is not always untoward. Aldous Huxley once wrote that "'[p]arodies and caricatures are the most penetrating of criticisms.'" Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 972 (10th Cir. 1996) (quoting Huxley). But when purposeful exaggeration misinforms or misdirects it is no longer penetrating criticism so much as calumny. To slightly modify Ernest Hemigway's observation, "'the step up from writing [such] parodies is writing on the wall above the urinal.'" Suntrust Bank v. Houghton Miffin Co., 268 F.3d 1257, 1278 n.1 (11th Cir. 2001) (Marcus, J., specially concurring) (quoting Hemingway).

Posted by Curmudgeonly Clerk at 11:33 PM | Comments (1)

Statutory Rape Cont'd

Yesterday's post on this topic has generated a fair amount of discussion. Links to commentary on other weblogs and additional discussion may be found in the various updates to the original post. Some interesting points may also be found in the comments to the original post.

Posted by Curmudgeonly Clerk at 02:17 PM | Comments (0)

January 21, 2004

Tweedle Dee & Tweedle Dum

Anthony Rickey has accorded as much respect to this enterprise as it deserves. Not to be outdone in setting back women's equality, the loyal (but clueless) opposition has organized a response of sorts.

Posted by Curmudgeonly Clerk at 11:38 PM | Comments (1)

Statutory Rape: The Age of Consent

I have previously discussed statutory rape in the specific context of the mistake-of-age defense, pondering whether the age of consent ought to be revised downward. An Associated Press story featured on CNN's website convinces me that the answer is emphatically "yes." The article explains that:

. . . Marcus Dixon was acquitted of raping a classmate, but the high school football star still got an automatic 10 years behind bars on a related charge because the girl was underage when the two had sex.

* * *

Dixon, once an honor student at Pepperell High School in Rome, was convicted of aggravated child molestation, one of Georgia's "seven deadly sins" crimes that come with a minimum decade-long sentence.

* * *

A jury last May acquitted him of rape, aggravated assault, false imprisonment and sexual battery but convicted him of aggravated child molestation and statutory rape.

Dixon was 18 at the time of the sex act. Thefemale involved was 15. Further details are available via the January 20, 2004 edition of the Atlanta Journal-Constitution.

In Texas, a prosecution for statutory rape would be considerably less likely under the circumstances, given that the statute has a provision exempting certain teenage dalliances from criminal coverage. See Tex. Pen Code § 22.011(e) (providing an an affirmative defense to "statutory rape" if the defendant can show that he was not more than three years older than the minor at the time of the sexual contact and the minor was at least 14). But should even a four-year difference expose teens to lengthy jail sentences when the state levies charges of nonconsensual sex that are rejected by a jury? (Prior reporting in the Atlanta Journal-Constitution indicates that the facts in this case are far from one-sided, but the jury's acquittal regarding the nonconsensual charges speaks for itself.

Some have dwelt on the racial aspect of the case. Dixon is black; his purported victim is white. But would this case be any more just without the racial controversy? On appeal, Dixon's lawyer is focusing on the mandatory minimum sentence involved. However, setting aside our society's penchant for mindlessly draconian sentencing requirements, haven't societal norms regarding teenage sexual activity shifted sufficiently to require a substantial revision of the substantive law?

(Tennessean link via TalkLeft.)

Update I: Slithery D dissents in part from my assessment. But I must confess that I find his reasoning to be unconvincing. He writes:

It is not a horrible crime and it does not deserve a 10 year sentence, but it should be strongly discouraged. The law is not an inappropriate tool to bring that pressure to bare. Combining my hazy recollections of high school with my more recent anecdotal experience, I suspect the average 14 year old girl who "consents" to have sex with an older boy is often poor, almost always being raised by a single mother, and has poor self-esteem. These girls don't get good advice and need protection. We cannot prosecute all of the boys taking advantage of them, but a few well publicized cases and some mention of the law in sex ed. classes may have a nice deterrent effect. Certainly I have no problem with a such a prosecution in conjunction with alleged sexual assault, and few qualms where it's just the girl changing her mind after a breakup and deciding to get even.

Frankly, I was not overly impressed with the sexual decisionmaking of women in their late teens and early twenties during my college days. Do they also require society's protection? Obviously, with younger teens there is a correspondingly lesser degree of wisdom and discretion involved on average. But can we truly say that even young teens lack the power to consent to sexual acts without our statement being more than a convenient legal fiction? Likewise, why should the law presume that males who are a mere handful of years older than their female partners are wordly-wise enough to be characterized as predators, particularly given the commonplace that girls mature faster?

Moreover, it seems to me that we are not really talking about teenagers in general, but rather females. Although adults are prosecuted for sexual shenanigans with teenage males as well, societal views regarding the danger that such relationships pose to teenage boys are quite different. Perhaps, there might be compelling reasons for treating teenage girls and boys differently where markedly older members of the opposite sex are concerned. But can the same be said of consensual sexual relationships between teenagers themselves?

D's paternalistic approach also rests on an unsupported empirical assumption (i.e., that teenage sex is primarily a pastime of an uneducated underclass). Although economic status does correlate to teen pregnancy, the correlation between family income and teenage sexual activity is far more complex:

Among adolescents from higher income families, however, the proportions who had ever had intercourse and who were currently sexually active increased significantly between 1982 and 1988: Among all 15-19-year-olds, the proportion who were sexually experienced increased from 39% to 50%, and the proportion currently sexually active increased from 32% to 41%.

Between 1988 and 1995, as was true in the general population, there was no change among higher income teenagers in the proportion who ever had sex, and there was a small, nonsignificant decrease in the proportion currently sexually active. Changes among the two age-groups were generally similar and not statistically significant.

The net result was that between 1982 and 1995, the proportions who had ever had sex or who were currently sexually active increased sharply among all higher income teenagers and among young higher income adolescents.

Because levels of sexual activity stayed fairly stable among lower income teenagers but rose during the period 1982-1988 among those with a higher income, differentials between these subgroups narrowed over time. For example, among 15-19-year-old females, the difference between the two income groups in the proportion who had ever had sexual intercourse was 16 percentage points in 1982 and nine percentage points in 1995.

Nevertheless, both among young adolescents and among all 15-19-year-olds, lower income adolescents still were significantly more likely to have ever had or to be currently having sexual intercourse than were higher income adolescents. By late adolescence, however, lower income and higher income teenagers were about equally likely to have ever had intercourse or to be currently sexually active.

Among higher income adolescents who had had intercourse, there was relatively little change in the mean number of months in the past year in which they had been sexually active. On the other hand, among lower income teenagers, the number of months spent sexually active declined significantly from 1982 to 1988, but rose only slightly and nonsignificantly between 1988 and 1995.

At the very least, D's assumption that teenage sexual activity is often or predominantly an affair of the lower classes seems unwarranted. Given the large role that (moral) assumptions already play in this debate, I think it wiser to avoid basing our criminal law on unsustainable generalizations.

In addition, I find D's lack of concern regarding prosecutions that result from post-romance retaliation to be disquieting. As a society, we should probably avoid crafting criminal laws that lend themselves to retaliatory usage. Penal codes do not exist for the benefit of personal vendetta.

Finally, twenty-nine percent of sexually active teenage girls aged 15-17 report having partners who are between 3-5 years older; an additional seven percent report having partners who are 6 or more years older. The same report notes that a nearly a quarter of female teens are sexually active by the age of 15, with the percentage rising to just over half by the age of 17. Female teens are having sex in rather large numbers, and many choose to do so with older partners. The current state of the law simply does not reflect what is happening in American society. So when D writes of using criminal law as a tool for shaping behavior, one can only conclude that the existing laws regarding statutory rape are not proving terribly successful at deterring teenage females from engaging in sexual relationships.

Update II: Lest I be misunderstood, I do not mean to suggest a return to the old English common law (i.e., no age of consent whatever) or even the age of consent established by Elizabethan statute (viz. 10). Cases like this one, in which a man in his thirties began an apparently consensual three-year sexual relationship with a female who was only 12, indicate that even reform must have its limits. But I do not think that such instances counsel that no reform whatever is in order.

Update III: Professor Reynolds articulates a rationale for the distinction between the Dixon case and the one involving Bairstow discussed in the second update to this post. He writes:

My own sense is that child molestation—along with real, as opposed to statutory, rape—is mala in se, while statutory rape is mere mala prohibita. This is a distinction that is often not reflected in the law, or in public discussion.

I share Reynold's sense of the matter, but that may be because we share the same moral intuitions about statutory rape. I am less certain though that the distinction between mala in se and mala prohibita will resolve this issue, for reasons articulated elsewhere.

Professor Reynolds also brings two additional writings to my attention. The first is an article that he wrote in 2002 that bears directly on this question. The principle objection to treating teens more like adults in matters of sexuality is that they lack the judgment of adults. Reynolds points out that it wasn't always so, and that society's response to teen sexuality is likely counterproductive. The article ought to be read in its entirety, but one passage in particular is especially worth noting:

Teen-agers have been having sex forever. Their bodies are maturing, their hormones are raging and doing what comes naturally is, well, natural. Indeed, for most of human history, teen sex was an entirely normal part of life, since people tended to marry and be treated as adults at what were, by modern standards, very early ages.

The criminal rules that we currently have in place reflect a chosen social order, not some preordained truth about the nature of adolescence.

Finally, Professor Reynolds reminds me of a worthwhile post by Will Baude on this very subject. Baude discusses (and rejects) Judith Levine's rather radical solution to this problem: complete abolition of statutory rape. His preffered solution, which strikes me as unworkable, is to replace the current bright-line rules with a more fluid approach. Baude writes:

Despite the fact that I often promote the idea of bright-line rules, this is one place I think they're inappropriate. To answer the Clerk's question ("Should this particular line be revisited?"), I say "yes". But replace this line not with some new and equally silly line (or a matrix of acceptable age-pairings) but rather with a rule of legal presumption. Say, perhaps, that children are presumed not to be able to consent to sexual intercourse with somebody much older or more powerful than they, but that this presumption is rebuttable (by, for example, combined testimony of the child and the parent, or perhaps a psychiatrist's examination, or . . .). Then limit this "rebuttable persumption range" and maintain some absolute lower bound, whether that's 12, 14, or something else. But the notion that there's a "magic line" at which point one becomes mature enough to be trusted with the right to dispose of one's own body is a legal fiction, and I think it's outlived its usefulness here.

One of the difficulties with this position, as I see it, is that if the assumption is that teens are generally incapable of uncoerced sexual consent (and Baude's presumption embraces rather than rejects this assumption), then their own testimony would be of little value. My sense of the situation is that those who favor the current statutory rape regime would never accept a teen's confession of consensuality, no matter how earnestly pleaded. Moreover, parents by nature are unlikely to eschew their protective, paternalistic role and testify to the consensual nature of their own teenage daughter's sexual exploits even if they understood them to be so, and in all probability parents would have no basis for testifying to such factual matters one way or the other. Psychiatrists likewise would have little basis for testifying about the nature of a sexual episode to which they were not a party. Their only knowledge would be secondhand and derived from the teenage "victim" herself, whose own testimony is suspect by traditional lights.

Update IV: Jonathan Ringel has a nice article today, which discusses yesterday's oral arguments before the Supreme Court of Georgia in the Dixon case. One passage in particular caught my attention:

Following the assertion of Dixon's lawyer that the rape acquittal meant the sex was consensual, some justices sounded sympathetic to Dixon's plight and troubled at the government's punishing a widespread teenage activity with a felony statute.

Justice Hugh P. Thompson wondered whether Dixon could find "an escape valve" in the Superior Court Sentence Review Panel, which checks punishments to determine if they are excessive. But he was reminded that the panel may not reduce sentences below a mandatory minimum.

"Couldn't prosecutors be more creative in what you charge?" Presiding Justice Leah Ward Sears asked.

Floyd County Assistant District Attorney John F. McClellan Jr., who maintained that Dixon used force and injured the girl, responded that his job was to prosecute people for violating all of the laws the state could prove were broken.

"You have an obligation to the victims," McClellan added.

Prosecutors frequently utter such nonsense. Of course, being elected officials with a limited budget, they must pick and choose which cases to prosecute and which crimes to charge. The notion that McClellan had no choice to make in this situation is quite disingenuous. Indeed, in the present legal order, prosecutors frequently wield more discretion than the judges before whom they appear. (This is certainly true of the federal criminal system and likely just as accurate regarding state criminal law.) McClellan presents himself as a ministerial functionary bereft of any responsibility for ensuring that justice is meted out.

McClellan's disingenuousness especially shines through when the nature of the legal theory that he pursued at trial is revealed. Ringel reports that:

Aggravated child molestation is defined as an immoral act in which one touches a child in order to satisfy sexual desires, resulting in injury. The girl in the Dixon case testified that she had been a virgin and that she bled after the incident.

At times, Sears and others sounded concerned that teenagers engaging in any sexual activity that results in any injury—the statute does not define "injury"—could be subject to 10 years in prison.

In other words, the prosecutor proceeded on the theory that the breaking of this girl's hymen constitutes an "injury" as that term is legally understood. If the jury had found the intercourse to be nonconsensual, I would be inclined to agree regarding the interpretation of the law. (Though "molestation" charges lodged at 18-year-olds for conduct with 15-year-olds strike me as patently ridiculous.) But given that the jury specifically rejected the claim of force, denominating a natural consequence of voluntary sexual intercourse as an "injury" seems bizarre. No doubt, this factored into Dixon's lawyer's request that the molestation conviction, which is the one that involves the ten-year statutory minimum sentence, be reversed.

Finally, Ringel reports that one witness furnished testimony that suggests that McClellan probably had some reason to suspect that the incident in question was not non-consensual in nature:

Dixon's supporters say the girl flirted with him and consented to sex. At trial a witness claimed the girl said she accused Dixon of rape so that she would not get in trouble with her father, who was described as a racist who had whipped her for smoking.

Such testimony is not dispositive, of course. But one might think that it, in conjunction with the jury's verdict, might have at least kept McClellan from contending that the episode resulted from force on appeal, if not from bringing charges as an original matter.

(Link via How Appealing.)

Update V: Slithery D has appended an update to his original discussion of the issue and offers some ripostes to my arguments. He covers a lot of ground, so those interested would be best served by reading his post in its entirety. Perhaps, his strongest argument in defense of the existing statutory rape regime, however, is the following:

. . . [T]he 10 year sentence appears to be based on his conviction for aggravated child molestation, and not on his other conviction for statutory rape. I'm willing to concede the aggravated child molestation law needs change, and I think that removes most of the outrageous and unfair quality of the case.

This position is not inaccurate and not entirely without appeal. As reported by Jonathan Ringel, see Update IV, the maximum sentence on the misdemeanor statutory rape count that Dixon was convicted of, would have be one year in prison. The 10-year mandatory minimum stems solely from the molestation charge.

However, I remain unconvinced. I simply do not think that a consensual sexual encounter between teenagers should ever lead to a conviction of any sort, let alone one that results in prison time. Prison is a ghastly place that ought to be reserved for those guilty of serious offenses. In addition, in some states, such a conviction might require a defendant to register as a sex offender. Moreover, "rape," even when it is preceded by the word "statutory," carries such moral opprobrium that a conviction for statutory rape is likely to go on harming Dixon well after his time has been served, even in the absence of an offender registration requirement. So I don't think that a statutory rape conviction can be so easily minimized. Over-incarceration and harsh punishment regimes also do society no good as well.

Update VI: Nunc Pro Tunc is unconvinced that statutory rape law requires retooling. However, Nunc's reasoning is curious. He writes:

Sexual norms are indeed becoming more relaxed. But they have not become so relaxed that society is willing to let pedophilia go unchecked. Thus the second variable, a child's actual ability to render consent, remains an important consideration. And while sexual norms have relaxed, the maturity of most teenagers has, if anything, decreased significantly. To the extent that this translates into a lack of capacity to engage in consensual sexual relations, it would suggest that an upward revision is in order.
I think that Nunc makes one very important mistake. He conflates the present issue with pedophilia, which involves pre-adolescent children and adults, not teenagers. My remarks are principally concerned with the ability of teens to consent to sexual contact with other teens, or with those who are reasonably close in age. Note that I have called for reform of statutory rape law, not its abolition. See Update II.

The second, more arguable mistake that I think Nunc has made is to assume that conferring the status of children on teens is a sensible reponse due to teenage irresponsibility and immaturity. For the reasons articulated by Professor Reynolds, I think that infantilizing teens is likely to worsen their judgment, which, ironically, would render them less well off and potentially expose them to the very dangers from which statutory rape laws supposedly safeguard them.

Posted by Curmudgeonly Clerk at 11:50 AM | Comments (23)

The Nuclear Option

A certain speech reminded me of one of my pet peeves. I realize that the word is spelled "nuclear," but the dictionary lists two pronunciations. See Merriam-Webster's Collegiate Dictionary 794 (10th ed. 2001). The two pronunciations are also available via Merriam-Webster Online.

Although certain people seem to question this second pronunciation on a somewhat uncertain basis, the folks at Merriam-Webster have provided a detailed explanation concerning what might be called the primary or original pronunciation of "nuclear" and its common variant. Geoffrey Nunberg offers a thoughtful view of how the variant pronunciation might have sprung into existence; however, now that it enjoys currency, the variant pronunciation is just as valid as the other.

Common usage determines what is proper spoken English and what is not. Arguing otherwise is akin to maintaining that we are all speaking improper English because we do not do so in conformity with the language as it existed in the past. Correcting people for employing the second, sometimes frowned upon pronunciation of "nuclear" is akin to telling Brett Favre that he has no idea how to pronounce his own name.

Update: A commenter has pointed out that Professor Volokh has previously addressed this matter, and William Dyer has helpfully identified the relevant links, which may be viewed here, here, and here. Although I do not necessarily embrace everything that the good professor writes, he has given the issue quite a bit of thought and his posts are fairly instructive.

Posted by Curmudgeonly Clerk at 09:36 AM | Comments (3)

January 20, 2004

Good Moral Character and Fitness

The State Bar of Texas has an explicit requirement of good moral character and fitness as a prerequisite to admission. Law students who intend to apply for admission are required to submit a lengthy form that concerns, in part, issues of character and fitness. England's terms of admission are likely not identical, but should folks like Louise Woodward be admitted to the practice of law? Are they too morally tainted to gain entrance into the profession? Or, having served the sentence imposed by law, ought they be admitted without reservation?

(Link via Electric Venom.)

Posted by Curmudgeonly Clerk at 04:33 PM | Comments (16)

January 19, 2004

Out With The Old, In With The New

For some reason, I have a tendency to neglect the list of weblogs listed in the right-hand margin. It's a tendency that seems to be shared by many of my peers. I have finally gotten around to removing some for lack of new content over an extended period of time, and in their place I have added some others. (There's nothing personal about this; there's just no point in maintaining links that lead to nowhere, so to speak.)

Speaking of other weblogs, Southwest Virginia Law Blog has withstood the test of time and is celebrating a year on the web. It is one of the first weblogs that I encountered when I started my own, and I have been reading it with some regularity every since. It is a spectacular weblog. Every region of the country would be fortunate if it had a site of Southwest Virginia Law Blog's caliber devoted to covering the area's legal news. But even those outside of Virginia will find it to be an interesting source of legal news. For those unfamiliar with it, I encourage readers to check out Southwestern Virginia Law Blog during its second year of operation.

Posted by Curmudgeonly Clerk at 11:46 PM | Comments (2)

In Defense of Pickering

Kevin Drum has a post on Judge Pickering devoted to insinuating that both Pickering and the president are racists, or that the recess appoitnment of the former was a sop to the latter's racist constituency, or both. This is evidently the party line, given Tom Daschle's similar remarks, among others. While Pickering's past is not spotless, this entirely negative characterization of his legal career strikes me as unbalanced and unfair to say the least.

The record does not substantiate many of the charges leveled at Judge Pickering, and renders others less than certain. Fair-minded individuals with an interest in the actual facts should read the following six articles:

David Firestone, Blacks at Home Support a Judge Liberals Assail, New York Times, Feb. 7, 2002. (The full text is available for viewing here.)

James Charles Evers, A Brave Judge's Name Besmirched, Wall Street Journal, Feb. 9, 2002.

Nat Hentoff, The Facts: Schumer v. Pickering, The Village Voice, Feb. 7, 2003.

Janita Poe & Tom Baxter, Trials of a Southern Judge, The Atlanta Journal-Constitution, Mar. 9, 2003.

Bill Rankin, Judge's Handling of One Case Gives His Critics Ammunition, The Atlanta Journal-Constitution, Mar. 9, 2003.

Neil A. Lewis, A Judge, a Renomination and the Cross-Burning Case That Won't End, New York Times, May 28, 2003. (The full text is available for viewing here.)

Apart from the facts imparted in the foregoing articles, Judge Pickering's prior confirmation to the federal district court bench in 1990 belies the present allegations, the majority of which predate Pickering's tenure as a federal judge. In 1990, Pickering was unanimously confirmed. He has also earned a "well qualified/qualified" rating from the American Bar Association. Is the ABA a confederacy of crypto-racists too?

(Thanks to William Dyer for some of the links.)

Posted by Curmudgeonly Clerk at 12:49 PM | Comments (1)

January 18, 2004

Rio Grande Valley Corruption Probe

A Texas state district judge's chambers and home were raided by FBI agents assigned to an anti-corruption task force, reports the Houston Chronicle. Further details are provided by Harlingen's Valley Morning Star.

Posted by Curmudgeonly Clerk at 09:57 PM | Comments (0)

January 17, 2004

Consensual Cannibalism and Int'l Law

Noah Levitt has written a FindLaw column devoted to the proposition that German authorities ought to avail themselves of international law in the consensual cannibalism case due to the inadequacies of the nation's own domestic law. While I think that criminal prohibitions of cannibalism are eminently reasonable, if only for prophylactic reasons—consent to be eaten may not be as cut and dry as a usual matter—I find Levitt's position to be troubling. He writes:

. . . [T]here may be an option that would cause Meiwes to serve a sentence more commensurate with his crimes. As I will explain below, German prosecutors may want to draw upon European and international human rights agreements against torture when charging Meiwes—including treaties such as the Convention Against Torture, as well as customary international law against inhuman or degrading treatment.

After all, if human rights law cannot be applied to instances of willful flaying, dismemberment, quasi-human sacrifice and cannibalism, when can it be applied?

Or, put another way, should Meiwes get off so easily simply because Germany does not have a crime specific to the atrocity committed here?

* * *

Invoking international human rights law, German prosecutors should aggressively pursue the Meiwes case as a crime of torture. There is no impediment to their doing so, for in German courts, European Union law and international treaties enjoy a legal status wholly equivalent to that of domestic German statutes.

Granted, under German law, German constitutional norms will prevail over contrary terms of treaties ratified by Germany. But in this case, the problem with prosecuting Meiwes reportedly is not that the German Constitution forbids it. Instead, the problem is merely that domestic criminal laws are difficult to apply to the unique—to say the least—facts of Meiwes's case.

Importantly, there is no due process issue here: Because treaties against torture were part of German law, Meiwes was fully on notice they could apply to his acts—including his acts against a fellow German citizen.

First, it seems almost beyond dispute that the Convention Against Torture is inapplicable. Article 1, Section 1 limits the Convention's coverage to:

. . . any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Although the "for such purposes as" language highlights that the Convention does not enumerate all of the circumstances covered, it is clear that it was not designed to reach purely private behavior. In particular, the clause requiring the involvement of "a public official or other person acting in an official capacity" makes it unmistakably clear that the Convention is exclusively intended to reach state-sanctioned conduct. Articles 10 and 11 reinforce this reading. Accordingly, Levitt's invocation of the Convention is perplexing. (A later portion of Levitt's article even appears to expressly acknowledge the inapplicability of this treaty.)

Levitt also cites the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Convention on the Prevention of Torture. Although less clear than the aforesaid Convention Against Torture, both of these documents also seem to be primarily intended to protect individuals from the state and/or a state-created legal order, not the conduct of private individuals. I would be happy to entertain a source of international law whose applicability was more certain, but Levitt's sweeping appeal to these Conventions strikes me as worrisome. Surely international law does not exist to serve as a substitute for domestic criminal law whenever the latter is thought to be wanting, particularly where garden variety criminal offenses like murder, rape, robbery, et cetera are concerned. The facts of the case at issue are somewhat unusual, however, they hardly involve the sort of legal lacuna that cries out for international redress. Those, like myself, concerned with the erosion of national sovereignty are loath to see otherwise domestic crimes converted into international offenses.

In addition, he cites the International Covenant on Civil and Political Rights, which he argues is not addressed to governmental conduct. However, like the other agreements cited, this one likewise seems to be geared toward ensuring that signatory states guarantee their citizens certain rights. It is quite a stretch to suppose that it was enacted and subscribed to by signatories in order to fill the interstices of domestic criminal law, particularly as an addititonal instrument of domestic criminal prosecution.

Levitt also relies on vaguely defined international norms against torture. However, he takes it as a given that the incident in question was an act of torture. This is a central failing of Levitt's invocation of the foregoing treaties as well. To be meaningful, "torture" must have some definition. Levitt provides none. Black's Law Dictionary defines the term to mean "[t]he infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure." An unstated premise of this definition would appear to be that the acts carried out are against the will of the tortured. For example, though sadistic motives are included in the definition, presumably consensual acts of sado-masochism are not. If otherwise, then Levitt's principles of international law would seem to forbid a broad spectrum of consensual sexual activity practiced by a small but not insignificant portion of the population in the West.

Perhaps, I would be less skeptical if Levitt had managed to more coherently articulate the pressing need for resort to international law. But Levitt offers little in the way of explanation on this point. Indeed, his argument approaches ipse dixit. He writes that:

. . . [T]he criminality of Meiwes's acts was hardly subtle. Meiwes's acts, to apply the U.S. distinction, were malum in se—evil in themselves—and not malum prohibitum—evil simply because society says so. It is not as if Meiwes were being indicted for obscure tax offenses; rather, he killed, dismembered, and consumed another human being.

Whether the distinction between malum in se and malum prohibitum has any real explanatory value is debatable. Into which category do drug offenses fall? What about statutory rape? It seems to me that the malleable distinction between malum in se and malum prohibitum ultimately consists of the moral assumptions of the reader. I rather suspect that many a libertarian would regard the apparently consensual acts involved here as repellent, but illegal solely because society says so. At least one has suggested as much.

Levitt unconvincingly tries to sidestep the issue of consent by opining that:

These international and European law sources appropriately recognize that, when the crime is torture, the victim's consent is almost completely irrelevant. As has been exhaustibly documented in studies from around the world, torture victims will "consent" to almost anything if faced with enough pain. As a result, a victim's consent to torture can never be trusted.

But this reasoning just reveals how inapposite the cited international and European law sources are. The purported "victim" in this case sought out his fate. His consent was not coerced via pain or the threat thereof. Indeed, consent appears to have been granted before the prospect of harm was assured let alone imminent. "Torture," as the concept is conventionally understood, seems an ill fit for the circumstances at hand.

Update: For more on the libertarian case for consensual cannibalism, see Theodore Dalrymple. (Link via Sasha Volokh.)

Posted by Curmudgeonly Clerk at 05:20 PM | Comments (1)

January 16, 2004


I let my subscription to National Review lapse three or four years ago. National Review Online routinely reminds me why I did so. A few days ago it published a guest comment by Catherine Seipp entitled Living with Playboy.

Seipp publishes in one of Playboy's competitors, Penthouse, and has no scruples about doing so. She cheerfully explains that, because the money is right:

. . . I can live with my prose being surrounded by close-ups of some girl's rectum.

Given her own self-interest, it's not really surprising then that Seipp has no problems with Playboy and proceeds to justify its existence. As others have noted, it is somewhat surprising that Seipp was paid to pronounce these views on NRO. What is even more unexpected, however, is her complete inability to put forth any sort of coherent justification beyond self-interest.

Based on her familiarity with Penthouse's content, Seipp writes that Playboy is comparatively tame. Indeed, much to my amazement, Playboy is apparently not pornographic whatever. She writes:

Anyone who calls Playboy pornography at this point is being willfully naïve.

This is akin to arguing that a Saturn is not an automobile because it's not a Lexus. Of course, Playboy is pornography. Hugh Heffner wouldn't have it any other way. The fact that he is not Bob Guccione does not render him any less a pornographer.

Seipp follows the foregoing nonsense up with an even more vapid observation about the societal import of pornography:

It's easy to make fun of Playboy. And indeed there's something faintly ridiculous about seeing Drew Carey rattle on about freedom and women's empowerment, as he did at the anniversary party, while Hef strained to hear and his Playmate companions nodded sagely.

Except Playboy really does have something to do with freedom, and these days maybe that's worth remembering. A society that allows Playboy is not a society that allows women to be stoned to death for adultery. Human nature being what it is, we're probably stuck with either burkas or naked balloon breasts forever. I know which I prefer.

It can be difficult to respond to such asininity in a measured fashion, but J.P. Carter has managed admirably well:

Ah, yes. Playboy is the only thing separating us from a Taliban-like existence.

Playboy first hit the stands in 1953. It has apparently escaped Seipp's notice that no one in the United States was stoned to death for adultery by the state prior to the magazine's advent either.

One could make the same sort of ridiculous and logically disconnected argument that Seipp does with reference to hard core pornography as well (i.e., "A society that allows [Hustler] is not a society that allows women to be stoned to death for adultery."). By Seipp's logic, it's bukkake on celluloid or the burka ladies, so go out and take a faceful for freedom. Of course, we've all heard this tired refrain before, most notably from celebrated freedom fighter Larry Flynt. In actuality, Seipp offers us nothing more than a false dichotomy.

The notion of pornography as an instrument of freedom and empowerment is rather dubious. But the idea that it serves as a predicate to freedom or empowerment is downright silly. And Seipp knows so. On her own site she recently wrote:

But then one of these women asked:

"Would you want your daughter to pose for Playboy?"

"Good question!" said Mr. Luke "Porn Industry Expert" Ford, when I told him about this conversation after he returned from covering a convention in Las Vegas. "What did you answer?"

"Uh, well, I didn't really have a good answer."

And why do you suppose that is, Ms. Seipp? If there are really only two choices, a permissive society that allows for Playboy's existence and a genuinely repressive one that does not, then posing in Playboy would be an act of liberation, the ultimate expression of feminism. Why the uncertainty then?

Update: The Evangelical Outpost has another post, which offers a pithy critique of Kathryn Jean Lopez's rather lame defense of NRO's publication of Seipp's article.

Posted by Curmudgeonly Clerk at 06:48 PM | Comments (2)

January 15, 2004

Eugene Volokh Hates The Disabled!

Or does he just find them really annoying? Read all about it here. If only I had been there to see the contemptuous look on his face as he typed out his latest post on this subject, I could prove it. When, oh when, will Dahlia Lithwick expose the professor for what he truly is?

(See also The Maureen Dowd of Legal Commentary.)

Posted by Curmudgeonly Clerk at 02:37 PM | Comments (0)

Life, Liberty & Property

In a discussion of the right to self-defense, Eric Anderson writes:

I think Texas was among the last of the states to keep legal the use of force in defending one's property, though it too has caved in to the times.

Mr. Anderson has made a mistake that might be fatal if made by the Lone Star State's criminal denizens. The right to defend one's property is alive and well in Texas. The relevant portion of the Texas Penal Code provides that:

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Tex. Pen. Code § 9.41.

Under some circumstances, Texans may even employ "deadly force" in the protection of their property. See Tex. Pen. Code § 9.42. "Deadly force" being "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Tex. Pen. Code § 9.01(3). Specifically, one may use such force "against another to protect land or tangible, movable property:"

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Tex. Pen. Code § 9.42.

Finally, one may also resort to such measures against another in the defense of a third-party's property. Texas law provides that:

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Tex. Pen. Code § 9.43.

Texas law likewise permits one to threaten such force when the exercise of force would be justified. See Tex. Pen. Code § 9.04. Texas, therefore, has by no means "caved in to the times." Criminals menace the property of others at their own risk in this state.

Posted by Curmudgeonly Clerk at 02:14 PM | Comments (0)

Breaking News

Mosley-Braun ends presidential bid and endorses Dean; Dean's support among minorities surges to one voter.

Posted by Curmudgeonly Clerk at 12:45 AM | Comments (1)

Crime and Inconvenience

"Punishment" in Greenland:

About 60 of the country's murderers, rapists and a few thieves are housed at the Institute for Convicts, Greenland's main prison. About a dozen of the best-behaved are free to come and go as they please. The rest can leave the prison but have to return soon after work, and are locked into their rooms at 9:30 p.m.

The jail has no fences and no bars, but plenty of television sets, DVD players and computers. Inmates hold regular jobs around town, earning about $2,800 a month, a living wage in this country of 53,000 people. In the summer they're given shotguns and allowed to hunt reindeer and seals. The only requirement for such hunting trips: They must be accompanied by armed guards, says Soeren Soedergaard Hansen, chief judge of Greenland. "And they cannot be drunk."

* * *

If a jailbird in Greenland goes missing, the police are summoned. Usually their quarry is discovered drunk in one of a handful of bars in town.

* * *

A day in jail starts with a breakfast buffet of five imported cheeses, various breads, marmalade and honey. To relieve the wintry gloom, the table is lit by a holly-festooned candle. Lunch is a hot meal and dinner consists of cold meats. The walk-in freezer is stuffed with slabs of reindeer meat, remnants of summer hunting trips.

Each convict gets a personal coffee machine, compliments of the jail. The unisex bathrooms are spotless. For those disinclined to venture out into the Arctic cold, a local shop owner drops by once a week to sell cigarettes and other supplies.

One wonders what the recidivism rates are in Greenland. One also wonders what percentage of its convicts commit crimes during their term of "incarceration." On this last point, the article merely states that:

. . . [S]ome inmates have committed new crimes while roaming outside of jail. But such incidents are rare enough that prison authorities haven't felt the need to study the issue or quantify the problem . . . .

Law abiding Greenlanders apparently do not share this assessment:

. . . [T]he liberties given to Greenland's inmates are so extensive that many residents in this semiautonomous region of Denmark are starting to rethink their tolerant approach to criminal punishment. While random street crime is rare, the island is plagued by violence between people who know each other, often triggered by drunkenness. One study published last year in the International Journal of Circumpolar Health shows that nearly half of all Greenlanders have experienced personal violence and one-third of women between the age of 18 and 24 are victims of sexual abuse.

Now, after years of putting up with short sentences and even encountering their attackers on the street while they are technically "in jail," many residents want their violent prisoners properly locked up, and for much longer periods of time.

Imagine that. I'm no fan of unnecessarily draconian criminal sentences, but the criminal justice system in Greenland seems perverse.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 12:16 AM | Comments (2)

January 14, 2004

Ossified Conservatism

This essay by Terrence Moore on manliness and civilization is practically a self-parody. Moore dubs some poorly socialized males "barbarians," and offers the following observation about them:

You will know them right away by their distinctive headgear. They wear baseball caps everywhere they go and in every situation: in class, at the table, indoors, outdoors, while taking a test, while watching a movie, while on a date. They wear these caps frontward, backward, and sideways. They will wear them in church and with suits, if ever a barbarian puts on a suit. Part security blanket, part good-luck charm, these distinctive head coverings unite each barbarian with the rest of the vast barbaric horde.

Baseball caps in class! Verily, I say unto you, the end times are upon us. Repent, repent! Moore also goes on to disapprove of, horror of horrors, rock music. Other concerns include "[u]nchaperoned girls" and, of all things, Charlotte's Web. He neglects to mention the baleful influence of motorized carriages and such, but I am certain that this oversight is inadvertent.

(Link via The Corner.)

Posted by Curmudgeonly Clerk at 11:22 PM | Comments (1)

Another Coffee Case

Not too long ago, I wrote about the notorious coffee-spill case, Liebeck v. McDonald's Restaurants, P.T.S., Inc., No. CV-93-02419 (N.M. Dist. Ct. 1994) (unpublished opinion). While I was on hiatus over the holidays, How Appealing reported on a somewhat dissimilar case pending against Starbucks.

Posted by Curmudgeonly Clerk at 02:44 PM | Comments (0)

The Maureen Dowd of Legal Commentary

As longstanding readers of this weblog no doubt recall, I am rather unimpressed by Dahlia Lithwick's popular columns in Slate. Indeed, I have ceased reading them for this very reason. In this post, Professor Volokh reminds me why I found better things to do with my time.

Posted by Curmudgeonly Clerk at 09:04 AM | Comments (19)

January 13, 2004

Driving While Dead Drunk

In this otherwise unremarkable story revolving around a celebrity's plea agreement regarding DUI-related charges, readers are informed that Arizona also has an aggrvated DUI statute:

Ross was cited with three misdemeanors, including driving under the influence, driving with a blood-alcohol level above 0.08 and "extreme DUI"—driving with a blood-alcohol level above 0.15, according to Ross's spokeswoman Judy Altieri said shortly after the arrest.

I had never heard of such an offense before. I wonder how many states have graduated statutory schemes for DUI that vary depending on the defendant's blood alcohol concentration.

Posted by Curmudgeonly Clerk at 08:31 PM | Comments (2)

January 12, 2004

Wheelchair DUI

Some time ago, I added OverCriminalized to my list of weblogs in the right-hand margin. I wonder what its legal policy analyst, Trent England, would make of the following case. According to the St. Petersburg Times:

On Wednesday, a 45-year-old Spring Hill woman maneuvered her motorized wheelchair before Hernando County Judge Peyton Hyslop to answer a charge of driving under the influence.

The charge against Cynthia Christensen stems from Sept. 21, 2003, when her battery-operated Hoveround, which travels about 3 mph, struck a van driven by Nancy Lebron, 58, in front of Christensen's mobile home at 7414 Sealawn Drive, according to a Hernando County sheriff's report.

In December, months after Christensen submitted to a blood test at Oak Hill Hospital, a sheriff's deputy had returned to her home with news that she registered a 0.12 blood-alcohol level, exceeding the legal limit of 0.08.

The prosecution appears to be reasonable in terms of the statute under which the case is being brought. The facts also potentially support a prosecution. The truck that Christensen hit was moving at 30 m.p.h., and her entry into the roadway, therefore, had the potential to cause a more serious accident. But it nonetheless seems very odd to charge someone for drunk driving stemming from the operation of a battery-powered wheelchair.

(Link via Obscure Store.)

Update I: It turns out that the Times article misstates Florida law, which turns out to be far more ambiguous regarding the possibiity of prosecution under these circumstances. See the comments below for details.

Update II: Mr. Poon was kind enough to bring another wheelchair DUI case to my attention in the comments. In this Pennsylvania case, the defendant was charged with drunk driving, but the charge was subsequently dropped. Based on the report, one might suspect that the charge was dropped solely because the police failed to administer a test regarding the defendant's blood alcohol concentration in this instance. However, the story says otherwise: "A prosecutor said Pennsylvania's drunken-driving law doesn't apply to a disabled person who needs a motorized wheelchair to get around." In the end, the defendant pleaded guilty to charges of public intoxication and disorderly conduct.

Update III: Ken Lammers has spotted a recent New Hampshire case in which the defendant faces a DUI charge for riding his mountain bike while intoxicated.

Posted by Curmudgeonly Clerk at 04:49 PM | Comments (8)


Some people are determined not to let the facts get in the way of their preconceptions. This is particularly true where the law and lawyers are concerned. Crescat Sententia reader Ben Glatstein provides a textbook example of this phenomenon. Regarding this Fon Du Lac Reporter story, Glatstein writes:

Some people would be happy when they get free stuff. Some people would be doubly happy when that free stuff is free cable. Then there are others, who sue cable companies for making their wives fat by giving them free cable. Is this what the legal profession has come to? Or is there just nothing else to do in Wisconsin?

The bold font emphasis is mine. Regarding the bolded portion, one has to wonder about Glatstein's literacy.

First, the last line of the story reads:

Wisconsin Circuit Court records show no civil lawsuit papers filed in Dumouchel’s name.

A prior paragraph includes the statement that "Dumouchel told Charter employees he plans to sue" (emphasis added). No one has been sued. No lawsuit has been filed. The story covers a rather silly man's patently ridiculous theats of litigation. The story gives the impression that one ought not to take Dumouchel very seriously. For example, in adition to threatening to sue, Dumouchel threatened to feed a cable company employee to "'the sharks.'"

Second, the story makes no mention of lawyers. Given that no lawyers are mentioned in the story whatever, Mr. Dumouchel appears to be acting pro se (i.e., without the assistance of a lawyer). This inference is bolstered by the fact that his threatened suit is mentioned in the context of small claims court, a venue in which parties typically are not represented by counsel. So how this story can be taken to say anything about the legal profession is beyond me.

None of the foregoing keeps Glatstein from taking Dumouchel's threat of litigation seriously. Not even the fact that the potential defendant reportedly does not share Glatstein's concern keeps him from jumping to conclusions.

Charter's director of government and public relations for eastern Wisconsin, John Miller, says he doesn't take the threat of a lawsuit seriously.

Sadly, we can, no doubt, look forward to syndicated columns about this story that make the very same baseless assertions that Glatstein airs.

Update I: An Associated Press account of this story is unequivocal on the possibility of litigation. It reports that:

A man who says he is addicted to television said Thursday he was just frustrated when he stormed into a cable company’s office. He said he would not sue the cable company.

Update II: Ben Glatstein thinks that I took his remarks too seriously. But he follows this observation up by suggesting that Dumouchel, perhaps, demonstrates the litigiousness of society in some general sense and/or the fear of litigation that pervades our society.

As I have stated before, I think that citation of instances of non-litigation in support of the thesis that we are embroiled in some sort of litigation nightmare is outlandish. As for my taking Glatstein's remarks too seriously, I disagree. Overlawyered has already suggested that this case might be "just the next logical step," given our legal culture. Neil McIntosh of The Guardian has opined that that Reporter story "reads like something from the Onion, but seems deadly serious." This is precisely the sort of anecdotal evidence that is routinely cited in favor of tort reform. So, unfortunately, one has no choice but to take such stories seriously.

Update III: The misrepresentation has already begun, reports Notes From the Legal Underground.

Posted by Curmudgeonly Clerk at 09:49 AM | Comments (2)

January 11, 2004

Judge John Wood

The Dallas Morning News details what is likely the closing chapter in the story of the 1979 murder of a federal district judge here in Texas.

Posted by Curmudgeonly Clerk at 06:17 PM | Comments (2)

January 10, 2004

The Final Frontier

My how things have changed. Back in 2002, NASA's strategic plans were rather modest. As then reported by Florida Today:

"Our future decisions will be science-driven, not destination-driven," O'Keefe told an audience at the Maxwell School of Citizenship and Public Affairs at Syracuse University where he was a professor before joining the Bush administration. "The investments we make today must be justified by their contributions to the long-range goals of the agency."

For many years, NASA has been about destinations—the moon, Mars, outer planets, even asteroids and comets. Now, it seems the 44-year-old civilian agency will focus on projectsthat score high on a cost-benefit-analysis grid. To some longtime NASA fans, that is a hard message to swallow. To others it is a welcome change.

A mere two years later, Florida Today reports that an entirely destination-oriented proposal is once again in the works. One naturally wonders what has spurred such a turnaround. (Reassessment after the Columbia tragedy appears to be the major policy impetus.) Nonetheless, the proposal's numerous critics generally strike me as being a bit underinformed and overly opinionated.

The principal complaint appears to be the financial cost of the project. However, critics just seem to be throwing around numbers in a vacuum. For example, I have yet to see any sort of nuanced cost-benefit analysis that accounts for the terrestial benefits derived from such spending (e.g., spin-off technologies or non-space-related applications of scientific advancements that result from the space program). Indeed, it's not even clear that most critics are aware that this is not a zero-sum game, in which every dollar spent on space exploration is merely a dollar lost.

In addition, critics do not seem to be putting this spending into a meaningful budgetary context. The New York Times reports that the president's plan, while still tentative on budgetary details, calls for rather modest initial increases in spending. Specifically, the proposal entails:

[A] funding increase for NASA next year of around 5 percent, or $750 million, with increases of a similar scale for the remainder of the five-year budget that the White House will send to Congress next month. Additional money for the program would come from reallocating funding now going to other space projects.

The federal government's spending outlays for 2003 total up to $2, 212 billion. The proposed 2004 budget for NASA issued back in February of 2003 before the advent of the present proposal apparently called for a total budget of $15.47 billion. In other words, given NASA's budget and the spending increases called for, we are dealing with less than one percent of the federal government's total budget. Thus, at least in the initial years of this proposed program, we are talking about federal spending at the margins. The vast majority of federal spending is either mandatory or military in character and attempts to shrink the government by chipping away at other discretionary spending is generally futile as a result. Trying to control spending by opposing the administration's space proposal is simply laughable, and political attempts to demagogue the issue count on the budgetary ignorance of the audience to succeed.

Finally, what critics seem to miss in all this is that the administration is proposing a longterm vision of the United States in space, not an all-at-once boondoggle. As reported in the second Florida Today article linked above, the proposal establishes milestones as far out as 2020. To wit:

  • Retiring the three remaining shuttles after NASA finishes building the International Space Station, which could happen sometime around 2010.

  • An initial manned lunar mission by 2013, using an Apollo-like spacecraft that could be derived from the current plans for an Orbital Space Plane that was to ferry astronauts to and from the space station. Subsequent lunar missions could include building a science outpost or base.

  • Filling a gap between the retirement of the shuttle and the availability of a new U.S. human spacecraft by using Russia's Soyuz to get people to and from the station.

  • A mission to Mars as early as 2020, although some reports indicated the initial Mars flights could be fly-bys as was done before the moon landings in the 1960s.

Further details are available via this UPI story.

Much higher cost estimates have been associated with this new initiative to be sure. This Associated Press article places the cost of a mission to Mars at $1 trillion, for example. However, of that figure, the editor of NASA Watch writes that "NO ONE has ever placed an estimate that large on a human mission to Mars." No doubt the costs will increase after the initial years of the program, when the goals become more ambitious. A plan outlined by George W. Bush's father to return to the moon en route to Mars was apparently nixed due to its $400 billion or $450 billion dollar price tag. But the linked Florida Today story fails to note the number of years over which that sum would have been expended.

The present administration's plan may deserve to share the same fate in the end. But it seems to me that far more serious consideration and detailed analysis is in order than the sort of shortsighted, underinformed, and unsophisticated naysaying that is presently consuming the blogosphere. The president's proposal ought to be heard out and dissected with a little more perspective and a little less cynicism.

Update: T.M. Lutas identifies a potentially compelling rationale for the administration's proposed space program as well.

Posted by Curmudgeonly Clerk at 03:08 PM | Comments (1)

Saddam's EPW Status

Professor Volokh is puzzled. He comments on this FOXNews article, which reports (a) that Saddam Hussein has been determined to be "an 'enemy prisoner of war'" (EPW)* for purposes of the Geneva Convention Relative to the Treatment of Prisoners of War, and (b) that such status requires that Hussein be "tried only for crimes against humanity by an international tribunal or the occupying power—which in this case is the United States."

It's the second report that leaves Volokh scratching his head. He can find nothing in the aforementioned Convention that requires such a result or precludes the U.S. from transferring Saddam to Iraq's custody to be tried by his own countrymen.

I must confess to being puzzled as well. But I was confused before I even made it to the portion that puzzles Volokh. I don't fully understand what compels Saddam's treatment as a garden-variety prisoner of war. Article 4 of the Geneva Convention on POWs defines the term "prisoners of war" for purpose of the convention. None of this Article's subprovisions seem to self-evidently apply to deposed tyrants.

It's not that I necessarily find such status for Saddam to be problematic or disagreeable. Indeed, it may well be that there is no other more suitable status to confer on him. But it would be interesting to know what options the Pentagon considered and why it settled on the one it did. The FOXNews story merely states that:

The general counsel office in the Pentagon—the Defense Department's top civilian lawyers—arrived at their decision that Saddam is a prisoner of war because of his status as former commander in chief of Iraq's military, spokesman Maj. Michael Shavers said Friday.

That seems a trifle strained to me. Treating otherwise civilian authorities as being part and parcel of the military forces under their command would convert numerous political leaders into prisoners of war in the event of their capture (e.g., the president of the United States due to Art. II, Sec. 2 of the U.S. Constitution). But, perhaps, such status behooves the prisoners in question. I'm not certain what sort of alternatives might be involved, so it's difficult to weigh whatever considerations might be in play.

As for Volokh's question, it's clear under the Geneva Convetion that the detaining power may try prisoners of war for acts commited prior to their capture. See Article 85. But nothing in the Convention seems to contemplate trials specifically for crimes against humanity. Judicial proceedings are addressed by Articles 99-108, but they are of little help in answering Volokh's question. These articles seem to pertain to ordinary trials for crimes "forbidden by the law of the Detaining Power or by international law," Article 99, but do not seem to envision trial by international tribunal whatever.

Perhaps, other United Nations conventions account for the claim that Volokh questions. But the FOXNews story attributes the notion that EPWs may be tried solely by the detaining power or an international tribunal directly to the Convention:

But the Geneva Conventions say POWs can be tried only for crimes against humanity by an international tribunal or the occupying power—which for the time being is the United States.

But even if FOXNews just misidentified the source of this rule, other United Nations conventions appear to contemplate trial of a leader by his own country. For example, Article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide states that:

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Assuming that Iraq is a signatory of this Convention for purposes of discussion, trial for genocide would then be appropriate solely before an Iraqi tribunal or an international one, if I properly understand the document. Whatever the case, the idea that the Iraqis themselves could not put their own leader on trial for crimes commited during his reign of terror seems very odd.

* The U.S. military employs two different terms for what civilians typically label "prisoners of war": Enemy Prisoner of War and Prisoner of War (POW). The first refers to enemy belligerents taken prisoner by our forces. The military reserves the term POW for our own captured soldiers. It's not clear to me what point (if any) this distinction serves, but in labeling Saddam an EPW the Pentagon is not conferring on him a legal status other than that of POW under the Geneva Convention.

Update I: Intel Dump has two detailed, link-laden posts (here and here) discussing issues related to Saddam Hussein's legal status and the possibility of his being tried by an Iraqi tribunal. The proprietor of that site, ex-Army officer and law student Phil Carter, assumes that POW status under the Geneva Convention is the obvious choice. Carter writes:

This whole issue is a little odd for anyone who's followed the Geneva Convention for more than the last two years. First, there is a rebuttable presumption in international law that all prisoners are prisoners of war under the Geneva Convention. Normally, the capturing force would convene competent tribunals (typically a group of mid-level military officers) to decide prisoners' status as they are processed. Despite his crimes, Saddam probably qualified for POW status from day one, as the commander-in-chief of a national armed force that was vanquished in battle. (See Art. IV for the ways one can be defined as a POW.) But we never said this, or held a tribunal to decide otherwise. Instead, we asserted from day one that there was some doubt as to his status, yet we did nothing to resolve that doubt. In essence, it seemed like we had our international law backwards, because we assumed from the outset that he was not a POW—instead of the other way around.

Carter does not identify the source of international law that presumes that all prisoners are "prisoners of war" for purposes of Article 4 of the Geneva Convention. But his posts do answer Volokh's question. Carter elaborates that Saddam Hussein could be tried by an Iraqi tribunal and that POW status under the Convention would actually facilitate such a trial.

Update II: The CNN story on this subject is equally strange. For example, it states that:

Also, Saddam's classification as a POW means that he can be tried only under the authority of occupying forces, which might require a U.S. military trial. That would interfere with U.S. plans to turn the former Iraqi leader over to an Iraqi war crimes tribunal. The United States plans to transfer sovereignty to a provisional Iraqi government by July 1.
However, Phil Carter's analysis, see supra Update I, accurately explains that CNN's assessment is entirely mistaken.

More interestingly, the CNN story indicates that Saddam Hussein's status may not be set in stone:

Also, a Pentagon official said if new information came to light about Saddam, provisions within the conventions could lead to changes in his status. For example, if it was found that Saddam lead the post-war insurgency, he might be considered a terrorist leader and not eligible for POW status.

No matter what, Hussein is almost certainly destined to be tried by an Iraqi tribunal once Iraq's government is up and running. It's hard to disagree with such a result.

Posted by Curmudgeonly Clerk at 01:27 PM | Comments (1)

January 09, 2004

Judicial Monkey Business

Divorce isn't the only event that sparks pet custody lawsuits. The city of Dallas has apparently expended considerable resources to deprive some residents of their pet Geoffrey's Spider Monkey, Leroy. The Dallas Morning News features this report.

The residents lost in court but won an appeal of sorts at the Austin zoo. The DMN article provides the details:

The court eventually sided with city attorneys and ordered that Leroy take up residence at the Austin Zoo.

Mr. Deeter had signed an agreement giving up ownership of the monkey. [Dallas's Assistant Chief Prosecutor] Mr. Acuna said the agreement was an admission that he treated Leroy cruelly. Mr. Deeter disagreed, saying he signed only because he hoped that his cooperation would allow him some say in where Leroy would live.

When Leroy was delivered to Austin, the city considered the case closed.

Mr. Williams and Mr. Deeter began visiting the monkey, and zoo officials were impressed by their relationship with the animal. After a few visits, they said, the zoo agreed to let Leroy go home.

The two roommates and Leroy have since moved to neighboring Arlington, which does not have a primate anti-pet ordinance, in order to avoid further entanglements with the law. Commenting on the suit, the roommates' attorney opined that his clients "truly loved and cared for that animal" and "were unable to carry on a normal life without the monkey," comparing its detention by the authorities to the seizure of "a child."

(Thanks to my pal Aaron for sending me this story.)

Posted by Curmudgeonly Clerk at 07:28 PM | Comments (0)

You Are To Blame For My Mistakes

Walter Williams wrote a piece in which he expressed wonder at the modern American legal system. In relevant part, he wrote:

I also wonder about judges. Merv Grazinski of Oklahoma City purchased a brand new 32-foot Winnebago motor home. On his first trip, he set the cruise control at 70 mph and calmly left the driver's seat to go into the back and make himself a cup of coffee. The R.V. left the freeway, crashed and overturned. Grazinski sued Winnebago for not advising him in the owner's manual that he couldn't actually do this. The jury awarded him $1,750,000 plus a new motor home. Winnebago changed its manuals. I wonder why. Anyone so stupid as to leave the driver's seat is probably also too stupid to read a manual.

There was just one problem with Williams's analysis. The case that he dissected never happened. The very next week, Williams had to publicly acknowledge as much. He subsequently wrote:

Literally hundreds of readers informed me that in last week's column, "Some Things I Wonder About," my reference to a Merv Grazinski of Oklahoma City—who set his 32-foot Winnebago on cruise control, left the driver's seat to brew a cup of coffee, crashed, then sued Winnebago for not having a warning against the dangers of doing so and received a jury award of $1,750,000 plus a new motor home—was an urban legend and as such totally false.

My having fallen for this "urban legend" points to more due diligence to fact-checking. Without making any excuses whatsoever for my lapse in due diligence, let's look at it.

Unfortunately, Williams was not a man of his word. The following paragraphs were, in fact, devoted to making excuses for Williams's lapse in due diligence (i.e., basic fact-checking). The following paragraph in his second piece says it all:

Thirty, 40 or 50 years ago, no one in their right mind would have believed the Merv Grazinski urban legend possible, but not so today. Personal responsibility has taken a back seat in our increasingly immoral and litigious society. Consider some actual lawsuits researched at [Overlawyered].

Williams apparently fails to see the irony in decrying the decline in society's sense of personal responsibility while abdicating his own responsibility for putting forth falsehood as fact and laying the blame on the general state of affairs. That's all too often the problem with folks who admire the virtue of personal responsibility. To paraphrase Ambrose Bierce's characterization of Christians, they think that personal responsibility is a virtue admirably suited to their neighbors.

The sort of litigation hoax that Williams fell for is all too common. Litigation-related urban legends turn up with some frequency. And because they confirm some folks' preexisting worldview they are uncritically digested and repeated ad nauseum. Timothy Sandefur, who generally seems to favor tort reform, appears to have recently unearthed yet another instance of this phenomenon.

Misunderstanding and misrepresentation of cases that actually have occurred also cloud the issue. It does Williams no credit that, as evidence of his thesis, he cites Liebeck (i.e., the infamous McDonald's coffee case). While the claims advanced in Liebeck are not unquestionably meritorious, they are far from frivolous.

The other two cases that Williams mentions wildly vary from the Grazinski story. One is about a lawsuit that was filed as opposed to won. It was also apparently filed by an inmate; inmates are notorious for filing frivolous suits, typically pro se. The second case cited by Williams involves a civil suit that was thrown out by an appeals court in Texas. Neither of these cases support the apparent moral of the Grazinski legend (i.e., that ludicrous lawsuits are ubiquitous in the United States and commonly succeed, producing huge damage awards).

Personal responsibility begins at home. Instead of issuing a entire column qua apologia, Williams should have had the class to admit that he mindlessly regurgitated the Grazinski legend because it validated his own preconceptions about the American legal system. No sincere confession of error ever began "Yeah, but . . .". Indeed, the whole point of Williams's follow-up column was to assert that he was mistaken at most about the details.

Judging by the unsupportive anecdotal content of his second column, however, Williams has absolutely no grasp of the relevant details. Overlawyered is a wonderful site. Walter Olson and Ted Frank document the excesses of our legal system with some frequency. But in a country with over one million lawyers, some excesses are bound to occur. Where gentlemen like Olson, Frank, and Sandefur see a systemic problem, I largely (but not entirely) see unconnected data points that, for the most part, represent individual failings. Folks like Walter Williams do little to persuade skeptics like myself otherwise.

Posted by Curmudgeonly Clerk at 10:58 AM | Comments (3)

January 08, 2004

Man's Best Property

Call me heartless, but I am not convinced that this is a positive development in the law. Much as we cherish our pets in America, legal rules that treat them as being on par with children rather than as property will do little to dispell the perception that our society is overlawyered.

Posted by Curmudgeonly Clerk at 10:14 AM | Comments (0)

January 07, 2004

Farewell, Professor

Via the Texas Lawyer, I am saddened to learn that, effective January 15, 2004, University of Texas School of Law Professor (and former Dean) John Sutton, Jr. will retire from teaching, ending a teaching career that spanned well over four decades. Although he has certainly more than earned his retirement (his son retired from the bench some time ago), it is a loss for UT.

I had Professor Sutton for multiple courses and found him to be both erudite and congenial. His personal warmth and wonderful sense of humor set him well apart from the (stereo)typical faculty member. The best part of being in one of his classes though was the wealth of anecdotes with which he peppered his lectures. E.g., One day in Evidence, he strayed from his prepared remarks on an auto-accident case from the 1940s to comment on how the make/model involved generally handled. John Sutton is a scholar and a gentleman. I wish him the very best in his retirement.

Posted by Curmudgeonly Clerk at 12:05 PM | Comments (0)

January 06, 2004

Food, Fraud & Litigation

The Wall Street Journal reports that:

Robert Ligon, a 68-year-old health-food executive, is scheduled to begin serving 15 months in a federal prison Tuesday. His crime: willfully mislabeling doughnuts as low-fat.

* * *

The criminal files on doughnut-related fraud thickened in the 1990s after new federal laws required more-detailed labeling of food. The FDA's Office of Criminal Investigation says that about a quarter of its cases involve food, most related to tampering. About 20% of those food cases are related to "misbranding" of food, such as false labels or misstated country of origin.

Mr. Ligon, who is scheduled to begin his sentence Tuesday, was not the first doughnut derelict. In 2000, Vernon Patterson, president of Genesis II Foods Inc., an Illinois bakery, pleaded guilty to one count of mail fraud for passing off three varieties of doughnuts as low-fat. According to federal court records, customers helped build the case against Mr. Patterson by raising questions about his suspiciously tasty low-fat treats. Mr. Patterson served one year and one day in a federal prison.

The doughnut ring of Mr. Ligon, a former weight-loss-center franchisee, began in 1995, the FDA says. That's when he started a weight-loss product company, Nutrisource Inc., to sell protein shakes, nutritional bars and baked goods to diet centers. According to Rudy Hejny, the FDA agent in charge of the investigation, Mr. Ligon bought full-fat doughnuts from Cloverhill Bakery, a Chicago company, and repackaged them as diet doughnuts. It was a lucrative operation: Mr. Ligon would buy doughnuts for 25 cents to 33 cents each and then resell the mislabeled versions for a dollar each.

One count of mail fraud is the charge to which Ligon eventually pled guilty. One wonders how often the FDA successfully prosecutes defendants for misrepresentations of the fat or nutritional content of food products. Interestingly, the WSJ article also covers in some detail the doughnut industry's efforts to do what Ligon purported to do: concoct and sell a tasty yet low-fat doughnut.

Given my prior post about the supposed role of lawyers in fostering America's perceived legal quagmire, what struck me most about the Ligon case was its tenuous similarity to the recent fast food civil cases. Consider, for example, a justifiably skeptical law professor's characterization of one such fast food plaintiff's claim:

Concern for the young doesn’t stop Mr. Hirsch from also representing one Caesar Barber, 56, who is suing McDonald’s, Burger King Corp., KFC Corp. and Wendy’s International for "making him overweight." Mr. Barber, 5' 10" and 272, has had two heart attacks, but still consumes fast food three or four times every week. Presumably more resistant to small toys than the teenagers, Mr. Barber was allegedly hypnotized by restaurants' advertising. For instance, he believed that advertising that (accurately) asserted that burgers were 100 percent beef "meant it was good for you. I thought the food was OK. The fast food industry has wrecked my life. I was conned. I was fooled. I was tricked."

The obvious difference, of course, is that Ligon's victims might more credibly claim to have been hoodwinked. Ligon's claims, unlike the fast food industry's, were utterly fraudulent. A representation may be misleading by implication or omission as well, but the fast food giants accurately report the nutritional content of their offerings (see, e.g., McDonald's).

It seems to me that legal cases of substance and their frivolous conterparts are often not different in kind so much as in degree. Liability in the fast food cases is just a bridge too far under the circumstances. Lawyers ought to know better than to pursue such claims, but aren't laymen equally capable of recognizing the difference between Ligon and McDonald's?

(WSJ link via How Appealing.)

Posted by Curmudgeonly Clerk at 05:28 PM | Comments (0)

January 05, 2004

Misdirected Misanthropy?

The Misanthropyst had an adverse reaction to this story. In response, he writes:

All lawyers suck. They say they don't, but they do.

As a lawyer, I must confess that I would be delighted if some of my peers were more discriminating in selecting their clients and cases. But I have never quite understood why litigiousness is exclusively attributed to lawyers, even if only in hyperbole.

The very opening of the news story in question reveals a central truth of litigation. It begins:

A chef has launched a £25,000 compensation claim after cutting his finger while attempting to slice an unripe avocado.

The italics is added. It emphasizes what should be obvious: the chef is suing. Whatever lawyer is involved is a mere agent of the chef. Placing all of the blame on lawyers for society's litigiousness is like blaming guns for robberies to the exclusion of the robbers themselves. Lawyers, like firearms, are instruments; they are wielded by others.

It's not that lawyers are entirely blameless. They, as professionals, should recognize frivolous claims and should decline to advance them at the threshold. However, grown adults should likewise not attempt to turn all of life's misfortunes into legal gold mines. Does the supply of legal services create the demand or vice versa?

Posted by Curmudgeonly Clerk at 10:08 PM | Comments (11)

Attack Dog Attorney

While traveling north on Highway 77 in the region farthest North that might still properly be characterized as South Texas, I encountered a large billboard emblazoned with the words "Abogado Perro." In addition to the attorney's contact information, the sign, which appeared to be exclusively in Spanish, featured a snarling Doberman Pinscher. Who says that law is an overly subtle discipline?

Posted by Curmudgeonly Clerk at 09:11 PM | Comments (3)