When it comes to criminal law, nothing is more important than the language of a statute. From the due process perspective, a law must give notice of what it prohibits.  Not just, “well, everybody knows what it means” from zealous advocates of criminality who can’t figure out a way to clearly express their ideas, but want so badly to criminalize something that they are fully prepared to criminalize far more.

It’s easy to fall back on appealing phrases like “the spirit of the law,” which exist in the imagination of those who believe in spirits.  Your spirit says something is a crime. Mine does not. And the prosecutor’s spirit says our spirits don’t count anyway, and the only spirit that matters is his.

This is why words matter. Definitions matter. No matter how much it hurts, these are the only tools available to create a law, or we fall subject to the whims of whoever has the biggest spirit.  And rarely does that turn out to be us.

On the eve of oral argument in King v. Burwell, a clash of intellect and emotion will reach its zenith.  In an homage to canons of interpretation, Michigan lawprof Nicholas Bagley made an impassioned plea in the New York Times for the Supreme Court to ignore the words of the Affordable Care Act. Continue reading →

Starting today, I will be contributing posts on “the business, practice and culture of law in addition to anything else he damn well pleases” at Lee Pacchia’s Mimesis Law.  For those who haven’t paid any attention at all, I’ve been doing videos with Lee for a while now (they can be found on my sidebar) in an effort to reach a very different audience than the one inclined toward SJ.

As regular readers know, I’m fairly lousy with sticking to a brand, as all the internet ninjas say a blogger is supposed to do.  I write about whatever strikes my fancy, and some of you send me nasty emails or leave vicious comments to tell me that I’m not doing what you think I should be doing, because my latest post doesn’t thrill you.

Tough nuggies.  But I digress.

The plan is that I will contribute posts to Mimesis that tend to deal more with inside baseball practice of law sort of stuff that would only be of interest to other lawyers, if anyone.  Not to give too much away, but Lee is putting together some of the most interesting and thoughtful minds in the blawgosphere to join in this endeavor, people who I think offer the most valuable ideas. Continue reading →

The viral video of Los Angeles cops taking down a homeless man of questionable mental stability, until five shots are fired and he became a dead homeless man, is a good illustration of the confusion. The video is confusing. The conduct of the police is confusing. The necessity for violence is confusing, and the reasons behind all of this are confusing.

The only thing not confusing about it is that the man, who is known as Africa on the street, is dead.

In an effort to make sense of the confusion, note that at 21 seconds, you hear the word “gun.”  From the LA Times: Continue reading →

Apparently, a great many readers took offense — no, were outraged — by the City of Cleveland’s response to the amendment complaint filed by the family of Tamir Rice, the 12-year-old executed in a park by rookie cop Timothy Loehmann.  The City’s answer to the complaint was the problem:

The city, in its response, wrote that Tamir’s death on Nov. 22 and all of the injuries his family claims in the suit “were directly and proximately caused by their own acts, not this Defendant.” It also says that the 12-year-old’s shooting death was caused “by the failure … to exercise due care to avoid injury.”

To the unaware, this seem callous and false, a lie by the City to try to shift fault from its own violent officer, a cop who never should have been hired and who lacked the competence and guts to let a child live.

The response does not explain these defenses in more detail, though 20 defenses are listed in all, including another one that says Tamir died because of “the conduct of individuals or entities other than Defendant.”

Continue reading →

At the Chronicle of Higher Ed, Northwestern professor Laura Kipnis takes a cautious stroll down memory lane.

You have to feel a little sorry these days for professors married to their former students. They used to be respectable citizens—leaders in their fields, department chairs, maybe even a dean or two—and now they’re abusers of power avant la lettre. I suspect you can barely throw a stone on most campuses around the country without hitting a few of these neo-miscreants. Who knows what coercions they deployed back in the day to corral those students into submission; at least that’s the fear evinced by today’s new campus dating policies.

While much has been made here of the new campus sexual revolution, the one that absolves females of any responsibility for their choices and presumes males to be rapists, inchoate or extant, there are permutations as well that afflict the professoriat: relations between an academic and student are the product of coercion.  They too are the “neo-miscreants.”

Kipnis is one of them, though at the time, she wasn’t quite so evil. Continue reading →

When the Supremes granted cert in the notorious Heien case, my thoughts immediately turned to enlightened self-interest, raising a personal example of what could possibly go wrong:

As regular readers know, I’ve got a 1964 Austin-Healey BJ8 and, as allowed by New York law, use year-of-origin license plates on my car.  In 1964, New York issued a single Worlds Fair plate, to be placed on the rear of the car.  It was kept for 1965, with a red registration sticker to be added, but that was the last year New York allowed a single plate.  After that, all cars were required to have plates on front and back.  So I drive around with no front license plate.

My random guess is that most active duty police officers today weren’t alive in 1964, or if they were, didn’t pay a lot of attention to license plates back then.  My fear is that they will see me coming without a front plate and stop me, even though it’s perfectly lawful.

The problem is that they won’t be familiar with the law that allows me to use my year-of-origin plate, and they won’t be aware that New York issued only a rear plate that year.  For this reason, I carry around a copy of the law to show them.  Still, that doesn’t mean they will accept that what I show them is correct, and they may ticket me or worse anyway.

But what are the chances that such a scenario would come to pass? Pretty darned good, as it turns out. Continue reading →

A prelude to all those beloved lawsuits for brutality against police officers is the service of process.  As Douglas Dedinger learned, it’s not without its ironic risks.

In order to help out his family and earn a quick $50, Dendinger agreed to act as a process server, giving a brutality lawsuit filed by his nephew to Chad Cassard as the former Bogalusa police officer exited the Washington Parish Courthouse.

While most people understand that the process server is just the messenger, Cassard wasn’t inclined to take it in stride.

The handoff went smoothly, but Dendinger said the reaction from Cassard, and a group of officers and attorneys clustered around him, turned his life upside down.

“It was like sticking a stick in a bee’s nest.” Dendinger, 47, recalled. “They started cursing me. They threw the summons at me. Right at my face, but it fell short. Vulgarities. I just didn’t know what to think. I was a little shocked.”

Continue reading →

Among academics who tend to toe the social justice warrior line, Denver lawprof Nancy Leong tends to be one of the more reasonable, more thoughtful ones.  It’s not that she doesn’t have her perspective, but she’s open to discussion. And that’s what made her post surprising and, well, disappointing.

Nancy had a bad day.

I was harassed three times in a four block walk to get coffee this morning. For those who think street harassment is no big deal, here’s a transcript of the second-most offensive incident:

“Hey beautiful. Slow down. How about a smile? No smile? Why so unfriendly? Okay, you stuck up bitch. [now yelling at my back] STUCK UP CUNT.”

A few things. First, I don’t actually have the heart to memorialize the most offensive incident on my blog.

Because I trust Nancy wouldn’t fabricate a story to make a point, I’m fully prepared to accept her suggestion that the most offensive incident was really bad.  Her second, duly presented, was pretty terrible. Her take on the loser who stands on the street saying, then yelling, such things: Continue reading →

The scenario played out like a bad SNL skit, with an unidentified officer telling her fellow St Louis officers to stop punching, kicking and tasing Cortez Bufford for a moment.

“Hold up, everybody hold up, we are red right now, so if you guys are worried about the cameras just wait.”

While police claim a gun, ammo and weed were found in Bufford’s car, all charges against him were dropped, and he is now suing the cops for excessive force.

Bufford’s attorney said there was no reason for the police to pull over his client, and no reason for officers to kick him.

“You watch the foot go back and the foot go forward, now I think you can go to the police academy for a long time before they say the right move is to kick the guy,” said Bevis Schock.

Continue reading →

The New York Times Room for Debate must have had a really tough time finding anyone, or at least anyone with some shred of credibility even if only bestowed by some title from some godforsaken advocacy group, to be the loyal opposition.  You see, the problem was the subject of the debate:

Would We Be Safer if Fewer Were Jailed?

Jails in New York and throughout the country dealing with overcrowding and brutality, are often filled with inmates who might not need to even be incarcerated. Some of them are awaiting trial for nonviolent offenses, others have mental health needs.

Can the use of jails be reformed to reduce the number of inmates without increasing society’s risks?

Without spending too much time on the obvious, being the number 1 jailer in the world is no mean feat.  It’s not easy to find anyone with any knowledge on the subject to do the “we are number 1, Yay!” cheer.  And yet, with five voices in harmony singing the horrors and wastefulness of over-incarceration, who would provide the shrill, off-key note?

Enter our old buddy, Kent Scheidigger, legal director of the Criminal Justice Legal Foundation, which advocates for the pre-emptive incarceration of all non-cops and the imposition of life plus cancer for any offence for which an attempt is possible. Continue reading →