It’s a regular occurrence that someone will hop on their soap box and proclaim how the target of their self-righteous, absolutist angst is clearly, obviously, certainly wrong.  Orin Kerr  has kindly prepared a statement for you with regard to Judge Vaughn Walker’s Prop 8 decision for your convenience.

FOLLOW THE CONSTITUTION

Judge Walker’s decision on same-sex marriage is a reminder of the proper role of judges in our society. Above all else, judges should follow the Constitution. For that reason, Judge Walker’s decision should be [condemned/celebrated].

Judge Walker showed from the outset of the Prop 8 case that he had one priority: To [subvert/follow] the Rule of Law. His efforts to televise the trial, later overturned by the Supreme Court, show his true intent. Judge Walker wanted to televise the Prop 8 litigation to make sure it would be a [show trial/teaching moment] for the advocates of same-sex marriage. Although the Supreme Court did overturn his decision, Judge Walker pressed on. He never backed down. It is hard to believe that he is a Bush appointee — but this is San Francisco, after all.

Now the case heads to the Ninth Circuit Court of Appeals. The Ninth Circuit is a famously [lawless/independent] circuit. The next stop is the Supreme Court, which will probably divide 5–4 in this case. The swing vote is Justice Kennedy. Although his vote is often unpredictable, Justice Kennedy has tended to vote with the Supreme Court’s [activist/moderate] wing in cases related to homosexuality. We hope that Justice Kennedy rejects [liberal elite opinion/bigotry], follows the Constitution, and [upholds/rejects] Prop 8.

Public opinion about same-sex marriage is changing. The Supreme Court should recognize this and [step aside/ speed it along]. The choice is clear: It a choice between following the true Constitution and caving in to public pressures and opinion. We urge the Supreme Court to show the courage to follow the Constitution just as the Framers intended.

While Orin’s purpose in crafting this generic statement is to demonstrate the vapidity of the simplistic arguments of opposing sides in a debate, by those who see things with absolute clarity, but for the fact that their vision is equally applicable to the opposite view, it dovetails well with a very serious concern of mine, the proliferation of stupidity in the blawgosphere, and its enablement by those who should know better.

Like most of you, I read a number of blogs every day.  Some are written by people I think are very smart.  Some, not so smart.  Some, dumb as dirt.  I expect the dumb as dirt bloggers to be what they are.  I do not, however, expect the smart bloggers to put out stupid posts promoting half-baked, or worse, ideas.  I do not expect the smart bloggers to promote the dumb as dirt bloggers.  I certainly don’t expect the smart bloggers to promote the liars and schemers who abuse the blogosphere for their self-promotion.

Yet this is what I’m increasingly seeing, and I can’t stand it.  This was once a place where thoughtfulness prevailed, and imbeciles were unceremoniously ripped to shreds.  I know, the Happysphere thinks that’s just awful, and even imbeciles should be allowed to post unmolested, but that’s simply asinine.  As lawyers, we have an obligation to educate with integrity.  This not only obliges each of us to post accurately, but to correct those who post crap as part of their marketing scheme.  That means that the crap-posters don’t get to feel good about themselves that day.  In a perfect world, they feel badly enough to go away.  The blogosphere is far from perfect.

Most of my morning was spent pondering this dilemma.  And as I pondered, new posts appeared on my RSS feed that were pathologically bad, wrong or stupid.  I take no pleasure from criticizing other people’s posts, even though those suffering from paranoid delusions believe that’s what this mean-spirited old man is all about.  Rather, I fear that some poor, ignorant schmuck is going to read some bit of stupidity and, enjoying the benefit of confirmation bias, act upon it.  How many dead bodies is the blogosphere allowed to leave behind in its wake before anybody wakes up and calls the idiots out?

There are a handful of serious criminal defense lawyers around in a place called the blawgosphere.  There are many who don’t get to use the word “blawgosphere” to describe where they write.  They don’t write about law, or at least law as any competent lawyer would recognize it.  They write puff, pandering nonsense, self-promotional tripe.  Even some of the smart ones link to the dumb as dirt ones to be part of the gang, make friends and join in the mutual admiration society.

The blogosphere is turning to crap.  I’m disgusted.  To all those who are party to this, whether because they post the crap or enable others to post crap, you’re to blame. 

I’ve been told that other bloggers fear me, knowing that I’m one of the few who will name names and criticize those who post crap.  “Why can’t you just live and let live,” I’m asked?  Because you have taken the blawgosphere and turned it into a dump, a cesspool, a place of worthless garbage thought.  Because you lie about yourself, your practice, your experience, your knowledge, to scam a buck out of someone.  Because you demean us all.

I considered writing this morning about the crap posts of the day.  Maybe even a daily feature of the ten stupidest blog posts.  But that’s not why I write, nor where I want my blawg to be going forward. My purpose isn’t to be the sheriff of the blawgosphere, and no one elected me to the position in any event.  And then there’s the problem of how I would limit it to a mere ten. 

Rather than go on the attack today, I’m going to ask a favor of the handful of blawgs by serious criminal defense lawyers that post thoughtfully about the law. Stop enabling the idiots, the self-promoters, the liars and the panderers.  Let them fade into the obscurity they deserve until they disappear.  Anything else and we’re contributing to their scheme. 

And when someone writes something particularly stupid,* it might warrant a critical post. 

* It will be interesting to see which of the dozen or so bloggers who suffer from paranoid delusions think that I’m secretly writing about them today.  I’ll find out when they send me another of their threatening or psychotic emails, telling me how I’m obsessed with them. 

I knew it was coming.  My buddy Conrad sent me an email last week, telling me it was coming, knowing full well that I was going to have a field day with it.  I’m almost inclined to let it pass, since I like Conrad, not to mention the other guys around Avvo watercooler.  They really are good guys, but I can’t stop myself.

Yesterday, it came.

Congratulations – you have been selected as one of the top 50 attorneys featured in the upcoming November/December Issue of Arrive Magazine – the official on-board publication of Amtrak and the Acela Express along the Northeast Corridor.  The top lawyers were selected from 5 practice areas based on their Avvo Rating. 

Woo hoo!  I’m special.  So who gets to learn about how special I am?

The audience is made up of business travelers who ride the train on a regular basis. Arrive boasts 1.4 million readers per issue, and they have an average HHI of $307,700. This is a unique opportunity to reach this coveted demographic. 

A household income in the $300’s?  That’s pretty darn high.  Of course, my coveted demographic are those with high HHI who also happen to be under federal investigation.  Unfortunately, no numbers on that particular, but with 1.4 million readers, there ought to be a few targets in the crowd.  That’s very special.

And what does being so very special get me?

Four Attorney Advertising Spots Still Available
There are only four spots allocated for attorney advertising in this special “Best of” Edition of Arrive Magazine.  The special discounted rates are as follows:

Full Page, Premium (adjacent to Avvo list) – $8500
Full Page – $6700
½ Page Horizontal, Premium (adjacent to Avvo methodology)  – $4250
½ Page Horizontal  – $3350
¼ Page Square – $2125

Advertisements will appear on all northeast trains for a full two months (Nov 1 –  Dec 31).  Amtrak and Acela ridership is at its absolute peak during this time, due to increased holiday travel.

The right to advertise!  Double woo hoo!  Actually, it’s very kind of Avvo to put me on its list of 50 top attorneys, particularly given the assumption that the chances of my purchasing an advertisement fell significantly below zero.  But because of this act of generosity and kindness, I’m considering the unthinkable, with terms.

I’m in for a full page, Premium, ad.  Round it off to $10 grand, just for kicks.  But since the virtue of such advertisement is a bit speculative, my payment is offered in kind, with a free murder defense to Conrad to be used over the next two months (conditions and restrictions apply).  In fact, you guys have been so good to me that I will extend the offer to Mark and Josh as well, although it’s only for one, not all of you.  It’s not that I don’t want to defend you, but conflict of interest prevents greater generosity.  Besides, this way, if you need me to defend one of you guys, it means that I won’t be the one you murder.  No matter how much you want to.

So do we have a deal?

In response to the story about pervasive plagiarism in the New York Times, Stanley Fish writes at the Times Opinionator that plagiarism isn’t malum in se, but malum prohibitum.

Whenever it comes up plagiarism is a hot button topic and essays about it  tend to be philosophically and morally inflated. But there are really only two points to make. (1) Plagiarism is a learned sin. (2) Plagiarism is not a philosophical issue.

According to Fish, there’s nothing intrinsically wrong with copping the language of another and making it your own, except that we’ve got rules against it.

To prove his point, Fish distinguishes stealing from plagiarizing, and then devolves into sport:

The rule that you not use words that were first uttered or written by another without due attribution is less like the rule against stealing, which is at least culturally universal, than it is like  the rules of golf.  I choose golf because its rules are so much more severe and therefore so much odder than the rules of other sports.  In baseball you can (and should) steal bases and hide the ball. In football you can (and should) fake a pass or throw your opponent to the ground. In basketball you will be praised for obstructing an opposing player’s view of the court by waving your hands in front of his face. In hockey … well let’s not go there.  But in golf, if you so much as move the ball accidentally while breathing on it far away from anyone who might have seen what you did, you must immediately report yourself and incur the penalty.

This might be an appropriate time to distinguish between linguistic choices (“stealing” second base) and conceptual problems like stealing someone’s wallet, but for the fact that few readers will need any explanation.  Nor is the analogy to sports, golf inclusive, compelling.  These are sports, and they require adherence to rules for the sports to work.  You could play golf without adhering to rules, but then everybody would end the day under par, which wouldn’t prove to make the round nearly as worthwhile.

Fish eventually comes to lawyers. 

And if there should emerge  a powerful philosophical argument saying there’s no such thing as originality, its emergence needn’t alter  or even bother for a second a practice that can only get started if  originality is assumed as a baseline. It may be (to offer another example), as I have argued elsewhere, that there’s no such thing as free speech, but if you want to have a free speech regime because you believe that it is essential to the maintenance of democracy, just forget what Stanley Fish said — after all it’s just a theoretical argument — and get down to it as lawyers and judges in fact do all the time without the benefit or hindrance of any metaphysical rap.  Everyday disciplinary practices do not rest on a foundation of philosophy or theory; they rest on a foundation of themselves;  no theory or philosophy can either prop them up or topple them. As long as the practice is ongoing and flourishing its conventions will command respect and allegiance and flouting them will have negative consequences.

Right in the middle there, he said it.  Lawyers and judges “in fact do [it] all the time without the benefit of hindrance of any metaphysical rap.”  No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel. 

Initially, the law, as a discipline, includes a substantial component of precedent, where past decisions are applied to current circumstances.  It’s intended that way, and when decisions are written, there stands a pretty good chance that someone somewhere will use the language again.

But we do not lift language without attribution.  Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about.  It’s the lawyers’ way of attributing, Stanley.  It’s called a citation, and it’s our regime.  What you do not see at the end of a court decision is the copyright and command that it not be used without permission.  Use of court decisions is not merely anticipated, but required in most circumstances.  That’s the peculiar way law works.

Rather than lend support to Stanley’s dichotomy, it appears that the examples and implicit accusations fall along the line of stealing the tangible versus the intangible.  It would be inherently wrong to take someone else’s wallet, but it’s not wrong to take someone else’s words.  That leaves the question open as to whether theft is theft, or whether the nature of what’s taken spells the difference between right and wrong.

Where Stanley goes wrong is that the nature of the thing stolen is relevant to the degree of wrong, that stealing ten dollars isn’t as bad as stealing ten thousand dollars, but both are still stealing.  The same can be said for stealing words and appropriating them to oneself.  It’s not the most grievous harm ever committed, and doesn’t deserve a life sentence, but it’s still stealing. 

The wrong is in the act and its accompanying mental state.  To intentionally plagiarize is to intentionally steal.  It is indeed a moral wrong, just as much as stealing another person’s wallet.  The difference is in the punishment, and as with all wrongs, the punishment should fit the crime.  Proportionality dictates that the plagiarist be held to intellectual ridicule for the intellectual crime, perhaps a failing grade or even being tossed from a program that demands intellectual rigor.  So what if it falls below the level of harm that compels criminal sanction?  It’s still stealing and it’s still very wrong.

Stephanie West Allen at Idealawg posts about a Deloitte study  that finds answer the burning question, why nobody under 30 answers your voicemails.  The answer is pretty simple: They don’t like voicemail.

To understand the generational divide that exists between older and younger workers in today’s workplace, consider the simple case of voicemail. Try leaving a Gen Y employee or colleague a voicemail message, and see what happens. They’re not going to hear it. Gen Y members tune out practically any communication effort they perceive as unsolicited or spam.

“If you send a message on voicemail or send an e-mail, they are likely to ignore it,” says Jeff Schwartz, U.S. and global talent leader at Deloitte. “It’s very frustrating to our leaders, most of whom are boomers [and] some of whom are Gen X’ers. When they broadcast voicemail messages, big swaths of their organization are not hearing it. They’re not even listening to it and they’re not even sure it’s directed to them because they don’t think about being communicated with in that way. CEOs or HR leaders or business leaders think they’re sending a direct message, but that is not the most effective way to communicate across the generations.”

The study says that there are specific generational preferences in the means of communication.

“Millennials grew up with computers and cell phones the way baby boomers and Gen X’ers grew up with typewriters and corded telephones,” according to a recent Deloitte report, “Decoding Generational Differences: Fact, fiction … or should we just get back to work?” “The implications of this technological dispar­ity are profound: Baby boomers see technology as a tool, or even a toy, while younger workers see it as an extension of themselves. These millennials see themselves as ‘technology natives,’ moderate multi-taskers who get a lot done. Most of them mix entertainment and work.”

The study goes on the state the preferences by generation.  Bruce Carton, over at Legal Blog Watch, picked up on Steph’s post and breaks down the preferences thus:

While I’m not aware of any boomers who prefer meetings, and most of us dread meetings almost as much as a conference call (which has the advantage of allowing us to play spider solitaire while pretending to listen on speakerphone), who am I to question a study. 

The reactions to these posts were largely about who prefers what and why, with almost all focused exclusively on what makes the commenters happy.  Missing in this group were those who gave any thought whatsoever to what would best serve their clients.  What a shock.

But the most significant failure was the message coming out of the Deloitte study that employers should change their communication methods to please their non-VM-listening employees.

Accommodate employee differences: Treat your employees as you do your customers. Learn all you can about them, work to meet their specific needs and serve them according to their unique preferences.

That’s right, change everything to please the Slackoisie and their “unique preferences.”  Give them footrubs and serve them their favorite beverages with those little umbrellas.  After all, it’s all about them and the things that make their day “funner”.  The comparison, of course, between customers and employees, may be a bit flawed.  Customers (or clients, as lawyers prefer to call them) are the ones who pay us money.  Employees, on the other hand, are the ones we pay.  One of the prerogatives of employment is that the boss gets to direct them.  I know, outrageous notion, but really, that’s how it works.

Rather than recreate the workplace to suit the individual desires of employees, there’s a solution that will work without making any institutional changes in an enterprise:  Tell the Slackoisie that if they don’t listen to your voicemail, you will find someone who will.  There is someone out there who would appreciate having a voicemail to listen to in exchange for a paycheck.  If that’s not the person sitting at the desk you paid for, then the answer isn’t to change the desk.

Maybe this guy would be happy to endure your voicemail:

Part of the frustration is this incredibly long build-up to nothing. Like, ‘Why did I spend 22 years getting A’s and studying for the chance to eat canned chili?’ … I was in the airport watching people move bags from the curb to the curbside check-in, thinking, ‘At least they do something all day long, and I have $450,000 in education and fancy everything, and I’m sitting around all day and watching 2.5 movies a day?’

– Brad, a 28-year-old New York lawyer who was unemployed for six months. (Gavel bang: The Careerist.)

Maybe Brad’s problem was that he decided to ignore his boss’ voicemails because he preferred all messages to be delivered with a trophy and a balloon.  Maybe Brad thinks differently now.  Maybe. (Aside:  best comment at ATL to this quote is “Fucking slacker. I watch four movies a day.”)

To assist those suffering from hard-of-thinking, this doesn’t mean that business don’t assess the most effective means of communication and adapt to changing technology.  It means that the lowest guy on the totem pole doesn’t dictate to the top how the business will be run, even if the Slackoisie believe that to be their birthright. 

Personally, I have no greater love for voicemail than anyone else.  But that doesn’t mean I would be so absurdly arrogant as to ignore voicemails, where my clients leave messages about things that matter to them.  My function is to serve my clients, not to demand that my clients make my life more pleasant or convenient.  The same goes for employees.

Hate voicemail?  Perfectly understandable.  Refuse to listen to your boss’ voicemail because, well, you hate voicemails?  Time to polish up that resume. 

As for the Deloitte study’s recommendation that employers bend over and smile when their Slackoisie employees want the enterprise to recreate itself to please their “unique preferences,” this is the sort of entitlement enablement that undermines the concept of responsibility the Slackoisie desperately need.  No business can function when it’s left to the employees to decide whether they feel like listening to their boss.  If it means suffering through another voicemail from the person who signs your paycheck, tough nuggies.  That’s why they call it work.

Discussion of flight attendant Steven Slater, whether hero or criminal, offers some great opportunities to make important points.  Some blame the passenger who was abusive toward him.  Some blame him for losing his cool.  Not too many, surprisingly, blame the airline for charging for checked baggage and allowing 6½ inches of seat width per passenger.

But the news in New York is having a field day with this story, because it’s, well, criminal and funny at the same time.  No one died, so they don’t have to pretend they’re sad and put on a long face.  In fact, this is a video of their latest, and deepest, report on the subject.

Wow, that Dr. Nandu Pelusi needs to get a grip on himself.  But to arrive at the conclusion of “can’t we just put this anger aside?”

Why didn’t any of you think of that?

Amy Bach, whose book, “Ordinary Injustice: How America Holds Court,” is a must-read for anyone interested in the criminal justice system, has an op-ed in the New York Times  urging the creation of a “Justice Index” as means of quantifying how good a job our courts are doing.

But while millions of Americans deal with their local criminal courts as defendants and victims each year, there is no comparable way to assess a judicial system and determine how well it provides basic legal services.

This lack of data has a corrosive effect: without public awareness of a court system’s strengths and weaknesses, inefficiencies and civil liberties violations are never remedied.

That’s why America needs a “justice index” to show how the essential aspects of our local courts are working. The index, compiled according to national standards, would function roughly like college rankings, evaluating county courts on factors like cost, recidivism, crime reduction and collateral consequences, including whether people lose their jobs or homes after contact with the criminal justice system.

It’s not clear that the lack of data has a corrosive effect.  Rather, it plays into the prejudice of the public, there being nothing but anecdotal evidence to support one’s view of the system.  When someone you think should be convicted is acquitted, the system sucks.  When some judge rules against something you’re for, the judge is an activist.  The effectiveness of the system is entirely dependent upon achievement of the preferred outcome, which can be conviction for one person and acquittal for another.

The final chapter of Amy’s book suggests that the “ordinary injustice” of the American legal system exists because no one is watching.  While she is quite right in one sense, that no one is watching, the problem with any solution is who one gets to watch and what they are watching for.  If filtered through my eyes, rather than, say, Bill Otis, chances are that the results would be polar opposite with regard to our views on how good a job the courts are doing. 

Amy proposes a system to perform this function:

[A] panel of lawyers, community representatives, statisticians and law professors would establish standards for the measurements — for example, the percentage of people who plead guilty without an attorney or average bail amounts, because a high bail figure often compels defendants to plead guilty.

Another critical measurement would be the percentage of certain types of cases that get thrown out after a defined period of time, a possible indicator of inefficiency as well as disregard for traditionally under-prosecuted crimes. The index would also assess whether a county court has certain legal protections in place, like requiring that interrogations and confessions be taped.

The rationale for putting this diverse group on the panel is obvious; bringing together both the different interests as well as the skills needed to collect and understand the data.  Only the inclusion of law professors is a bit confusing, as they don’t seem to bring much to the mix, though they are likely to be the only ones available for all the meetings.  In the same vein, the group suffers from the same problems that pervade all issues around criminal justice, that they come with an agenda, a bias, and seek data to support changes that will produce their desired outcomes, whether more convictions or more acquittals.

The data collected would then be analyzed:

The information would be analyzed by a nonprofit organization, then posted to a Web site in a ranked order and in terms clear enough for the public to understand. Users would be able to shuffle the rankings by focusing on data related to specific areas like civil liberties or crime reduction, in the same way college applicants can look at which schools are best for student life or athletics.

This compels me to ask why?  Students get to apply to the college of their choice.  Criminal defendants don’t get to argue for a change of venue to a court that ranks higher in civil liberties.  As for communities reviewing the ranking of their local court system, I fear that the locals will march up the courthouse steps with torches and pitchforks if the data shows that the courts are doing too good a job protecting the constitutional rights of defendants. 

Amy’s desire to find an empirical method of assessing the viability of the legal system is completely understandable and, though I’m not sure that the comparisons with hospitals or universities holds true, clearly directed to the goal of improving the functioning and transparency of the system.  These are obviously important goals.

But just as use of sentencing statistics in the federal sentencing guidelines serves to work huge injustices, by way of disproportionate sentences and the inability to take into account individualized factors, any attempt to quantify something as amorphous and contentious as the legal system is going to be fraught with problems and likely end up serving the agenda of those with an ax to grind.  And it’s usually not the side of the defendants or constitutional rights that comes out of these things well.  We just don’t have a lot of strong advocates among the powerful.

As fine a goal as this may be, it’s likely that this will serve as a mechanism to justify more mindless, inflexible, sentencing-guidelines-type, zero-tolerance type, three-strikes-type programs, the sort that are invariably introduced as the magic bullet to fix a broken system.  Easily digested by the public and invariably wrong.  This is another good idea that is more likely to cause grave harm to the very people it’s intended to help.

Radley Balko interviewed Joseph Cassilly, Harford County, Maryland state’s attorney, for his article at Reason about the handful of states that contend that it’s a crime to record police in the performance of their duty.  Cassilly, notorious for his felony prosecution of Anthony Graber who recorded the plain-clothes, gun-wielding officer who took him down on a Maryland highway, explained his seemingly irresponsible position.

“The officer having his gun drawn or being on a public roadway has nothing to do with it,” Cassilly says. “Neither does the fact that what Mr. Graber said during the stop could be used in court. That’s not the test. The test is whether police officers can expect some of the conversations they have while on the job to remain private and not be recorded and replayed for the world to hear.”

Cassily further explained:

“I don’t have any hard and fast rule I can give you,” Cassilly says. “It depends on the circumstances, and if the officer in those circumstances had good reason to think he wouldn’t be recorded. Should a domestic violence victim have a camera shoved in her face and have her privacy violated because someone is following a police officer around with a camera? What if he’s collecting information from witnesses at a crime scene? I’m saying that not everything a police officer does on the job should be for public consumption.”

That Cassilly makes no sense comes as no surprise; He’s in an untenable position and is just trying his hardest to make sure the words flowing from his mouth don’t concede as much.  Making no sense is one of the best ways to accomplish that.  But what’s most interesting about the explanation is that Cassilly speaks of the police officers’ “rights”. 

Indeed, the title of Radley’s article, “Police Officers Don’t Check Their Civil Rights at the Station House Door,” a quote from Jim Pasco, Executive Director of the Fraternal Order of Police, is a riff off of the Supreme Court’s opinion in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), a decision about the rights of students.  It sounded great in Tinker, not to mention its progeny that recite it while explaining why students really have no rights, so why not cops?

Cops are people, right?  I see you shaking your head.  Yes, they are people.  People have rights.  But when they strap on their weapon and wear a shield, they don’t do so as citizens or human beings, fathers or mothers.  They do so as officials of a governmental entity, duly authorized by that government to perform a function.  That’s why the rest of us aren’t issued badges and taught how to taser people who annoy us.  We’re people.  We’re not cops. 

It’s not difficult to distinguish between the rights we possess as human beings and the authority possessed by those who serve as functionaries of the government.  They don’t lose their personal rights, but they don’t get to enjoy them contemporaneously with the performance of their duty. 

What is difficult, however, is to distinguish our love of rights and freedoms when they are well-grounded from when they are based only the rhetoric of rights.  Cassilly’s “argument” exploits the rhetoric of rights when human beings clothe themselves in governmental authority.  In essence, they do indeed leave their rights at the station house door.  When the go out into the world as police officers, they are not “people” but cops.  Just as they enjoy the authority of the government, they are constrained to forego the rights they would otherwise enjoy as people.

The same rhetoric of right, however, cuts against the grain in other ways as well.  I’ve often argued against the popular “victim’s rights” legislation and agenda, which seeks to make crime victims a third player in the criminal justice system.  Its advocates, such as Paul Cassell of Volokh Conspiracy, argue that they are entitled to a vote, particularly about disposition, sentencing and restitution, that trumps the prosecution.  This flies in the face of the concept of criminal law, which seeks to vindicate societal rather than personal interests, but that doesn’t prevent the assertion of the victims’ “right” to be a participant.

From whence does this “right” derive?  It can’t be found in the Constitution or the common law.  Rather, it’s statutory, meaning that legislation manufactured the right of victim to have a say out of thin air.  It’s a popular notion, despite the problems it creates in the scheme of criminal law because we all feel badly for victims of crime and nobody wants to say that they deserve no rights.  That sounds awful.  It feels as if victims should be able to get their pound of flesh out of a defendant because it’s so difficult and complicated to fight the rhetoric of rights. 

Ironically, the rhetoric of rights for victims is a one way street.  At Norm Pattis posted, when representing a victim who doesn’t want a prosecution to proceed, and doesn’t want to be party to it, the rhetoric of rights shifts against the victim.  He argued:

Among other things, we argued that the right to be treated with decency and respect was a constitutional right much like the federal right to due process: it needed to be given flesh and blood in the hurly burly of actual litigation. How is this young woman treated with respect and dignity when she has no say in whether this prosecution goes forward?

Of course, there is no right to decency and respect, as such.  Heck, there isn’t even a viable definition, no less way to determine whether decency and respect are violated.  But it’s a good argument, inasmuch as nobody wants to be on the side of arguing that people do not have a right to decency and respect.  The ultimate point, that the victim’s desire to have the prosecution cease is ignored.  So victims have a right to demand that prosecutions proceed. Victims do not have a right to demand that prosecutions cease.  There appears to be a gap in the logic here, no?

The problem stems from a basic inequity in the rhetoric of rights, the manufacture of non-existent rights is only viable when its consistent with popular notions.  We like law and order, so cops have rights.  We like victims, so victims have rights.  When victims want to exercise those rights to cease being victims, we no longer like them to so they have no rights. 

Rights aren’t a product of rhetoric, but a product of the Constitution.  Victims have no rights, but for the legislators’ creation to appease popular views.  That’s why they only flow one way.  Cops, as government functionaries, have no rights as such, but plenty of authority.  Beware the rhetoric of rights that creates the appearance of rights where none exists. 

There are plenty of rights involved in the recording of police officers in the performance of their duties, but they all belong to the people doing the recording, not the cops.  There are plenty of rights in the courtroom, but they all belong to the defendant, not the victim.  No amount of rhetoric changes those rights or who possesses them, although the use of the rhetoric of rights serves to significantly muddle our understanding of rights and, by giving rights where none exists, diminishes the rights of the rest of us.

For every “right” claimed that doesn’t exist, the rights of someone else will be proportionately diminished.  Don’t let that happen, no matter how appealing you find the rhetoric.

From Jonathon Adler : 

The Theory of Relativity is actually a liberal plot to encourage moral relativism and distort how people view the world. (See FN1)  Who knew?  Does this mean gravity is a conspiracy to keep us down?

I already knew this from when Bill Buckley whispered into my ear.  But you may not be aware of it yet, so I thought you should know.

Damn that Orin Kerr with his tough questions.  Over at Volokh Conspiracy, Orin pulled a little Kingsfield on readers by putting up a poll as to when the right of same-sex couples to marry came into being.  Obviously, constitutional rights don’t pop up out of the blue when a judge decides that they exist.  It’s the Constitution, not the judge, that gives us rights.  The judge merely recognizes the rights that the Constitution creates.  Can’t argue with that proposition, right?

The results of the poll showed that 53% of respondents believed that the right of same-sex marriage came into existence in 1868 when the 14th Amendment went into effect or earlier.  In other words, the right to same-sex marriage has existed for about 150 years or more, but we just didn’t know it.

Don’t you just hate when that happens?  Me too!

That’s when Orin drops the bomb. 

Here’s a follow-up question, specifically address to readers who did or would answer the poll that way. Here’s the question: What conduct or statuses have not yet been recognized as protected by the Constitution; are in fact presently protected by the Constitution; and would trigger widespread shock among a wide range of the public today if they knew the Constitution protected it?

Here’s why I ask. One of the interesting aspects of saying that the Constitution required states to protect same-sex marriage before 1900 is the implication that the requirement existed back when the idea of same-sex marriage would have seemed utterly shocking. I gather the folks who believe that the same-sex marriage right existed back when it was shocking also believe that there are other rights that presently exist in the Constitution, currently unrecognized, that are as shocking to us today as same-sex marriage would have seemed in the 1700s or 1800s. My question is, what specifically are those other rights? Alternatively, are there no more presently-unrecognized rights in the Constitution — is the Constitution all tapped out rights-wise? Or perhaps those other rights are there, but we can’t see them yet — and if so, why can’t we see them?

Wow.  What a great, evil question.

Some of the responses to Orin’s question are, um, curious.  It seems there’s a lot of support for the right to duel.  Less so for the right to cannibalize the naturally dead.  There are a number of people who believe that animals should possess the rights currently given to humans, and strong support for the right to commit suicide.  Many of the comments are sarcastic or mocking in tone, but that doesn’t quite change where the mind goes on a question like this.

Very difficult question, Orin.  Very difficult indeed.

Via Sentencing Law and Policy, the Great State of Ohio, where Cincinnati is called a city, was found lacking in its inability to impose a severe sentence on Steven J. Tirpak for the death of Richard Crabtree.

Richard Crabtree was killed Feb. 1 in a car accident.  He left behind a wife and three children. The police found the witnesses to her husband’s death and brought charges against the young man who ran a red light and killed him.

The prosecutor secured a conviction on the most-serious charge. The judge’s sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice — for her, her husband, their three children — was not served.

“Our lives are totally destroyed, forever; and he got 90 days in jail,” the Westerville woman said.

There is little question but that the death of Richard Crabtree was a tragedy, and that his survivors, his wife and three children, will suffer terribly for his loss.  No question at all. 

Tirpak, on the other hand, is an unremorseful mutt.  Exactly how much of a mutt is unclear, but let’s assume, for the sake of argument, that he’s unworthy of carrying Crabtree’s bags. 

But note the description in the first sentence in the quote above, that Richard Crabtree was killed in a “car accident.”  Car accidents happen.  Most of the time, they result in a smashed fender and over-heated tempers.  Once in a while, an accident results in death.  Sometimes, it’s the death of a father of three.  It’s horrible.  But it’s not murder.

Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio.  [Prosecutor Peter] Ruffing would not speak about the Tirpak case in any detail.  He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. “That’s certainly an understandable position by a widow,” he said….

Crabtree said the six months since her husband’s death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets.  She can expect only $12,500 from his insurance company.

That Ohio permits a driver to carry minimum insurance in the amount of $12,500 may be described as a crime, but that’s not the issue here.  The problem here is that the crime committed by Tirpak is running a red light which resulted in death.  No matter how awful the outcome, and how awful the defendant, may be,

The distinction between negligent conduct that has tragic results and conduct which is truly reckless is under assault.  It would be one thing if a driver decided to close his eyes and blast through a red light at a busy intersection for kicks, much like shooting a gun into a crowd without any specific intent to kill anyone.  But the unintended running of a red light, or any number of other vehicular infractions that may be wrongful but neither deliberate nor depraved, do not reflect a level of moral culpability that deserves criminal punishment.  The trend, however, runs against this. 

The public sensibility is that when the outcome is tragic, someone must pay.  More to the point, the defendant in this case was unrepentant, had bad history and no assets, and was just a generally unlikeable defendant.

When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding.  She could make peace with that.  But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. “What I got was the exact opposite,” she said….

Had he been an otherwise upstanding citizen, Mrs. Crabtree might feel differently.  This is certainly understandable.  It leaves, however, the criminalization of conduct that would otherwise be taken as a mere accident to be determined by the nature and attitude of the defendant.  Unlikeable people would be criminals whereas remorseful, law-abiding people would not.  The law should criminalize conduct, not people we don’t like.

It’s impossible not to feel sympathy for what happened to Richard Crabtree.  It’s similarly impossible not to feel that Tirpak is a mutt.  But what happened here, despite the death of a father of three, is undeserving of greater sanction than is appropriate for the act of running a red light, no matter how dislikeable the defendant may be.  Yet it’s cases like this that give rise to a legislative cry for harsher penalties for all the wrong reasons.