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The Courts, Criminal Justice & Tort Archive

Wednesday

29

January 2014

0

COMMENTS

Notable Quotations

Written by , Posted in Big Government, Culture & Society, The Courts, Criminal Justice & Tort

I gave my reasons why I don’t care about the State of the Union Address. But Kevin Williamson did it better:

Kevin D. Williamson, “Great Caesar’s Ghost:”

The national self-debasement begins well before the speech is under way. Members of Congress — supposedly free men and women serving as the elected representatives of the citizens of a self-governing republic — arrive hours early, camping out like spotty-faced adolescents waiting for Justin Bieber tickets, in the hope of staking out some prime center-aisle real estate that they might be seen on television, if only for a second or two, being greeted by the national pontifex maximus as he makes his stately procession into the chamber.

…But they will listen, rapt, and the media mandarins afterward will evaluate each promise with great sobriety, ignoring entirely that the central promise made during the same charlatan’s first State of the Union address was subsequently labeled “Lie of the Year” by the great man’s own frustrated admirers. That an entire class of people should be so enthusiastic about being lied to, serially, is perplexing.

Gene Healy, “Most Americans shrug at State of the Union spectacle:”

In its modern form, the SOTU is a meaningless ritual that rarely even does the president — let alone the public — any good.

That’s bad news for a chief executive whose chief talent is speechifying. “I have a gift, Harry,” then-Sen. Obama unhumblebragged to Sen. Harry Reid, D-Nev., some years ago, in the afterglow of a well-received speech. But according to the polling data and the political science research, it’s a gift that won’t keep on giving.

Matt K. Lewis, “How ‘overcriminalization’ makes it easier to target political enemies:”

Regardless of whether the Obama administration is targeting conservatives, or whether its political enemies just happen to be particularly corrupt and incompetent, we should be equally concerned about a growing trend that would aid any vengeful political regime: The rise of onerous laws and arbitrary regulations that criminalize the routine function of politics and business.

After all, overt political paybacks are far easier to spot (and punish) than a pervasive system whereby one must break the law in order to get ahead — and where punishment of the guilty can then be selectively enforced.

Russ Roberts, “Real prosperity:”

I don’t really like the word “market.” Too much shorthand for a rich concept of exchange that allows for the possibility of specialization that allows for more investment in capital (human or physical) that leads to higher productivity that leads to prosperity and growth. Adam Smith understood this a long time ago and his insights have somehow been lost to much of the economics profession. At the heart of Smith’s insights into exchange and specialization and the division of labor is that we get wealthy by figuring out ways to create products and services that have value to other people.  That is what is missing in the parts of Africa that Sachs was trying to help. If you don’t have ways to help other people though exchange, you can’t have prosperity or even take steps toward prosperity.

Sunday

25

August 2013

0

COMMENTS

Holder Rattles the Sabers

Written by , Posted in Economics & the Economy, The Courts, Criminal Justice & Tort

Tough talk from the nation’s top legal obstructionist:

Attorney General Eric Holder on Tuesday put Wall Street on notice with a vague threat, saying that the Justice Department may be gearing up for civil or criminal prosecutions against those responsible for the 2008 financial meltdown.

“My message is, anybody who’s inflicted damage on our financial markets should not be of the belief that they are out of the woods because of the passage of time,” Holder said in an interview with The Wall Street Journal.

Holder didn’t expound on the nature of the charges or whom the DOJ might have in its crosshairs.

If Eric Holder both actually meant what he said and understood who is properly to blame, the DC governing class would be running for the hills. But they’re not. The politicians that repeatedly voted for bad policies or propped up Fannie and Freddie get a pass. The bubble-inducing Fed gets a pass. But if you’re some middling banker in New York, watch out! I have to imagine that as the criminal cabal occupying the White House becomes increasingly exposed for repeated, persistent resistance to any legal or constitutional controls, they’ll be seeking scapegoats and distractions. Eric Holder may have just tipped his hand in terms of who those scapegoats are likely to be.

Thursday

18

July 2013

0

COMMENTS

Harry Reid’s Filib(l)uster and the NLRB

Written by , Posted in The Courts, Criminal Justice & Tort

The big news yesterday was that Republicans apparently caved on their opposition to several Obama administration appointees, a deal which will stave off Harry Reid’s plan to invoke the so-called “nuclear option” to end filibusters on presidential appointments. There are two things I find of interest in this whole brouhaha – the administration’s abuse of recess appointments to circumvent the Senate’s role to provide Advice and Consent, and the implications should Harry Reid go through with the “nuclear option.”

Here’s what I previously said about President Obama’s “recess” appointments:

What’s interesting to me is how ridiculous is much of the rhetorical justification for the move. The argument I frequently see goes something like this: Republicans blocked Obama’s appointments, therefore he just had to act.

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

The appointments have since been found by multiple courts to be invalid, the most recent of which being the Fourth Circuit in a ruling issued just yesterday afternoon. The Obama administration has insisted they were legitimate appointments, and the issue is now before the Supreme Court in NLRB v. Noel Canning.

The exact fallout from the rulings remains uncertain at least until Noel is decided, due largely to the fact that the legality of rulings issued thanks to Obama’s invalid appointments are in question, though many other challenges are currently proceeding.

Bruce McQuain raises an interesting question regarding how the deal to avoid Harry Reid’s bombing of Senate rules plays into the issue. President Obama and Democrats responded to the rulings against the NLRB by insisting they were legal appointments, yet now are promising two new appointments. McQuain writes:

If the Democrats agreed to have two new appointments made to the NLRB, aren’t they at least tacitly admitting the current two appointments are illegal?  And if so, what does that make any rulings the current NLRB made during that time it was illegally constituted?  Common sense says those rulings should be invalidated, don’t you think?

We’ll see how the issue shakes out with upcoming cases, but it’s worth pointing out that this mess is the direct result of the President’s novel insistence that he knows better than the Senate when they are in session or not.

The other issue of interest regarding the deal is the nature and structure of the Senate itself. Harry Reid has essentially said he and 50 other Senators can change the rules at any time to read as they please. If that is going to be the case, why even bother with rules? Just make it a majority rules, anything goes body and be done with it.

This contrasts with the purpose and understanding of the Senate as constructed. Senators were given longer terms and their elections staggered (not to mentioned originally not even determined by popular vote) in order so that it would serve as a counter-weight to the fickle nature of popular opinion that would hold greater sway in the House of Representatives.

Senator Lamar Alexander did a pretty good job with this argument in yesterday’s Washington Times:

This week’s “nuclear option” debate about whether U.S. senators should be permitted to filibuster presidential nominations was not about filibusters.

It was instead about whether a majority of senators should be able to change the rules of the Senate anytime for any purpose. Former Sen. Arthur Vandenberg of Michigan once offered the precise trouble with this idea: “If a majority of the Senate can change its rules at any time, there are no rules.”

…Over the years, there have been seven sub-Cabinet nominees blocked by filibuster — three Republicans and four Democrats, all since 1994.

…So, what were Democrats complaining about?For many Democrats, getting rid of the filibuster for nominees is the first step in turning the Senate into an institution where the majority rules lock, stock and barrel.

The Senate would become like the House of Representatives, in which a majority of only one vote could establish a Rules Committee with nine members of the majority and four of the minority. Every meaningful decision would be controlled by the majority. The result: The minority, its views and those it represents would become irrelevant.

It would be an unfortunate development if the Senate were to be turned into just a smaller House of Representatives. For those of us that welcome Congressional gridlock as a means to stay the worst impulses of knee-jerk legislators, the role of the Senate is essential. Though it’s worth pointing out that when the power shifts, many on both sides of the debate will switch sides. It may in the future be Lamar Alexander and his colleagues crying foul over minority obstructionism while Harry Reid demands respect for minority party rights. It wouldn’t be the first time.

 

Saturday

13

April 2013

1

COMMENTS

Shocking New Study: Lack of Legal Accountability Breeds Corruption

Written by , Posted in The Courts, Criminal Justice & Tort, Waste & Government Reform

Not that I intend to demean the folks who conducted this study, as there is utility in confirming with evidence things that seem obvious or intuitive, but I can’t help but laugh at the headline, “Corruption soars when politicians are placed above the law, study finds:”

In a new study, Stern School of Business assistant professor of economics Vasiliki Skreta and co-authors, Karthik Reddy of Harvard Law School and Moritz Schularick of the University of Bonn, examine statutory immunity provisions that obstruct or limit the criminal liability of politicians, and which exist throughout much of the modern democratic world.

…The researchers quantified the strength of immunity protection in 74 democracies and verified that immunity is strongly associated with corruption on an aggregate level. They also developed a theoretical model that demonstrated how stronger immunity protection can lead to higher corruption. The model suggested that unaccountable politicians under immunity protection can enhance their chance of re-election by using illegal means, namely supporting interest groups through lax law enforcement, non-collection of taxes, and other forms of favoritism that will go unpunished.

Certainly how a system constrains those in power is an important and worthy area of study in the social sciences. Most, however, probably already accept that politicians should not be above the law. In that sense the study may have limited impact. However, if we generalize its findings a bit and begin to question the accountability of other government officials, it could theoretically have broader implications.

Consider prosecutors, who were once described by Supreme Court Justice Robert Jackson as having “more control over life, liberty and reputation than any other person in America.” Their charging power, he said, is an “immense power to strike at citizens, not with mere individual strength, but with all the force of government itself.” And yet, they have absolute immunity, which renders them impervious to any legal repercussions for such decisions. Making matters worse is that the Supreme Court has given them a slightly less comprehensive standard of qualified immunity in situations where they actually investigate evidence. In other words, prosecutors are given a comparative disincentive from investigating the strength of the evidence they will use to try and convict someone, and then given complete immunity for how those decisions turn out.

Sadly, as Radley Balko reports, “prosecutors are rarely disciplined even for serious misconduct.” For every Mike Nifong of Duke Lacrosse fame who actually gets disciplined, there are orders of magnitude more who get off scot-free. They are held to essentially no legal standard at all. It is a system ripe for corruption, and corruption is precisely what frequently occurs.

Monday

11

March 2013

0

COMMENTS

Nanny Bloomberg’s Soda Ban Struck Down

Written by , Posted in Big Government, The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society

A day before it was set to go into effect, Nanny Bloomberg‘s ban on soda sales of 16oz. or more has been shot down by a state judge:

A state judge on Monday stopped Mayor Michael Bloomberg’s administration from banning the sale of large sugary drinks at New York City restaurants and other venues, a major defeat for a mayor who has made public-health initiatives a cornerstone of his tenure.

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” New York Supreme Court Judge Milton Tingling decided Monday.

The regulations are “fraught with arbitrary and capricious consequences,” the judge wrote. “The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole….the loopholes in this rule effectively defeat the state purpose of the rule.”

This is obviously a victory for liberty, and I don’t want to look a gift horse in the mouth, but I hope there is more to the reasoning than presented here (having not read the decision there may well be). Of course the law is arbitrary and capricious, prohibiting sales from certain businesses and not others, and allowing sale of 17oz. slurpees but not soda. But even if it were uniform and steadfast, or applied equally, it should still have been struck down. Unfortunately, given the record of the courts in defending liberty, I don’t have much faith that it would have been.

Thursday

14

February 2013

0

COMMENTS

(In)Justice Served?

Written by , Posted in The Courts, Criminal Justice & Tort

I am troubled by those who find cause to support Christopher Dorner, the ex-cop whose rampage through Los Angeles apparently left four people dead. Whatever one might conclude of his public claims, there is no moral justification for his actions.

I am also troubled, perhaps equally so, by the lawless and incompetent manner in which he was pursued by police. As I previously noted, lives were put at risk by officers who recklessly unloaded with deadly weapons on innocents who they never even attempted to identify. The officers involved in these shootings should be prosecuted for no less than reckless endangerment, if not attempted murder, and failing to do so (which I fully expect based on historical precedent) would be a miscarriage of justice.

But what about Dorner himself? He will not get his day in court to be tried by a jury of his peers. Nor will he be able exercise his right to face his accusers. He will do none of these things because he is dead at the hands of the very people he publicly accused of malice and criminal behavior. Perhaps his death in the log cabin was entirely of his own making, and that he simply would not have surrendered himself alive under any circumstance. But I can’t help but wonder, having told myself before he was found that there was no way in hell the police were ever going to take him in alive, whether or not he was summarily executed. Now, a recording purported to be between officers suggesting deliberate intent to burn him alive has surfaced, and seems completely damning if confirmed as authentic.

Moving beyond Dorner and the specifics of his firing/crime spree/death, there is a serious need for discussion about the conduct and role of police in today’s society. More and more it seems that law enforcement has a blatant disregard for the most basic rule of law, takes an entirely antagonistic view toward civilians, and operates without even the pretense of accountability. This has simply got to change.

Saturday

9

February 2013

0

COMMENTS

Crazed Shooters Open Fire on Woman and Her Elderly Mother

Written by , Posted in The Courts, Criminal Justice & Tort

Maggie Carranza and her 71-year-old mother Emma Hernandez were driving through a neighborhood delivering newspapers when two deranged gunmen unloaded on their truck. The women only sustained non-life threatening injuries thanks to the horrible aim of the nutjobs, whose bullets peppered houses and vehicles throughout the neighborhood.

Oh, and I forgot to mention, the berserk shooters were members of the LAPD:

Residents waking up to the sound of gunfire Thursday say it sounded like a war zone. A number of surrounding vehicles were struck by gunfire in the shooting.

…Friday neighbors were finding bullet holes on cars and on their walls.

“It was close. It sounded terrible. I thought bullets came through into our front room,” said Torrance resident Richard Goo.

Thursday LAPD officers shot numerous rounds into a pickup truck early in the morning. The people inside however were two women delivering newspapers. Emma Hernandez, 71, was shot in the back. Her daughter, 47-year-old Maggie Carranza, was hit in the hand. They both survived.

“They were not the same sex, race, height, weight — anything. They don’t remotely match,” said Christopher Driscoll, attorney for the two women. “The vehicle doesn’t even match. And with that information they thought it was sufficient to open fire on the vehicle, Bonnie-and-Clyde-style.”

Nor were these the only innocent victims in the LAPD’s frantic, uncontrolled rampage through the city in search of murderous ex-cop Christopher Dorner:

Just a block away, Torrance Police officers shot at David Perdue in his pickup truck because it also resembled Dorner’s vehicle. Perdue’s attorney, Todd Thibodo says Perdue was hurt when an officer rammed the truck and opened fire.

“I think he’s the victim of overly fearful and overly aggressive police officers,” said Thibodo.

Cops get particularly worked up when fellow officers or their families are being targeted. I get it; It’s a perfectly natural mentality to protect ones own (not that they can be arsed to protect anyone else). But these are supposed to be trained professionals, and they are acting with all the forethought and deliberation of a small-time street corner gang.

If those officers aren’t charged with attempted murder, it will be a significant injustice.

Saturday

26

January 2013

1

COMMENTS

About Those Non-Recess “Recess Appointments”

Written by , Posted in The Courts, Criminal Justice & Tort

The president of the United States, who heads the executive branch, does not have the authority to determine when Congress, the legislative branch, is or is not in session, according to a unanimous DC Circuit Court. Reaching the correct decision, the court found that the administration’s appointments to the NLRB were illegal:

A federal appeals court has unanimously slapped down President Barack Obama’s unprecedented claim that he can decide when the Senate is in session.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” said the three-judge decision, written by U.S. Circuit Judge David Sentelle.

…The Jan. 25 ruling came after Republican senators filed a case arguing that Obama did not have the power to appoint top-level officials via a “recess appointment” if the Senate says it is in session.

Obama made that claim when he announced the appointment of two people to the National Labor Relations Board in January 2012.

The appointments allowed the board to subsequently issue a series of pro-labor, anti-business decisions. Following the court’s ruling, the board’s decisions are now vulnerable to a series of lawsuits.

The question was whether, for the purpose of recess appointments, the executive could decide what level of activity was necessary for a legislative session to be legitimate. Basically, if Senators wants to sit around all day reading newspapers instead of doing work, that’s their prerogative, and the President has no legitimate power to determine that they aren’t doing enough work to actually be considered in session. The President insisted he could, but the court sided with the view that because Congress sets its own rules, it is the sole authority on whether or not it is in session.

The administration’s political justification – that they were simply responding to Senate reaction – was also faulty. The non-recess “recess appointments” were made in January of 2012, but  2 of the 3 had only been submitted a month prior, and the Senate had not yet received all the required information to begin. As I said at the time:

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

Despite the legal preservation of the separation of powers and having the kibosh put on yet another attempted power grab by the executive, the larger problem with the concept of the recess appointment remains. As I also said before:

Although there are legitimate concerns with agencies being left unmanned by Senate inaction, I’m more inclined to view the idea of the recess appointment as the bigger problem here. It made much more sense when originally conceived, as the legislature was a part time body which might be out of session for months at a time. Such is simply not the case anymore. Today we have a full time legislature that rarely recesses for more than a few weeks at a time. There are few if an vacancies that are so critical they would have to be filled before the Senate soon returned to session. And if the Senate refused to do so for poor reasons, that’s a political issue best sorted out by voters at election time.

The last point is worth repeating. If the President feels the Senate is not acting sufficiently fast enough for his tastes, that’s a political matter to be resolved by political means. The public can decide who is right and who should be punished. Doing an end run around the Constitutional arrangement to have the Senate provide Advice and Consent, on the other hand, is not the appropriate response. And now we have confirmation that’s it’s not a legal one, either.

Saturday

24

November 2012

0

COMMENTS

Michigan Court: Equality Violates Equal Protection Clause

Written by , Posted in The Courts, Criminal Justice & Tort

You can’t make this stuff up. Last week a liberal majority ruled that a provision of the Michigan state constitution passed in 2006 that prohibited racial preferences in college admissions was unconstitutional. Their logic? It created an unequal burden on minorities who wished to change the law by requiring them to amend the state’s constitution to do so.

You. Can’t. Make. This. Up.

By this logic, any constitutional provision creates an unconstitutional burden on groups that may wish to repeal it. In other words, it’s completely absurd.

Ilya Shapiro writes:

The court voted 8-7 that making people more equal under the law violates the constitutional provision that requires people to be treated equally under the law!

The Sixth Circuit’s “logic” would similarly prevent Congress from outlawing racial preferences under federal law.

Fortunately, this crazy ruling will not long survive. The California-based Ninth Circuit has (remarkably) ruled the other way; conflict between the lower courts virtually ensures that the Supreme Court will take the case.

And don’t forget that the Court this term is already considering the propriety of racial preferences in UT-Austin’s admissions program. If the Court finds racial preferences themselves to be unconstitutional—that’s my view—then the Sixth Circuit’s ruling has no practical effect anyway.

Saturday

13

October 2012

0

COMMENTS

Stop-and-Frisk is Bad Policy

Written by , Posted in Culture & Society, Liberty & Limited Government, The Courts, Criminal Justice & Tort

On Tuesday The Nation released audio recorded by a victim of police harassment and abuse under New York’s Stop and Frisk program. The officers in the recording behaved as brutish thugs lording their power over the populace, instead of servants of public. Listen to the 2 minutes of audio for yourself here, or for an even better look into the issue (which includes the audio) watch this short documentary:

The Nation also provided this description of the encounter:

In the course of the two-minute recording, the officers give no legally valid reason for the stop, use racially charged language and threaten Alvin with violence. Early in the stop, one of the officers asks, “You want me to smack you?” When Alvin asks why he is being threatened with arrest, the other officer responds, “For being a fucking mutt.” Later in the stop, while holding Alvin’s arm behind his back, the first officer says, “Dude, I’m gonna break your fuckin’ arm, then I’m gonna punch you in the fuckin’ face.”

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