A blog of politics, law, religion, and the tricky spots where they collide.

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Posts tagged Law

politicalprof replied to my post, Manic Aggressive:

let us know when you can bend the structure of reality, Matrix-style …

Done and done. That’s like the whole point of becoming an attorney. You change reality with your words. A family that was one day away from being homeless now has shelter. I fixed it. With my brain.

Manic Aggressive

When a major pleading is due, I sometimes end up at the office a bit later than usual. Everything is quiet. There are no interruptions. Things start coming together beautifully. I take a bit of pride in my work. And that pride necessarily extends to the probable reaction of the sucker attorney on the otherside who’s about to get a few hundred pages of reality dropped on him. It’s not just imminent victory. It’s the growing probability that the victory will be so powerful and so glorious that the law itself will change.

There’s only one problem. It does something curious to my inner monologue. It starts channeling supervillains. There’s a lot of crushing of enemies and bending of wills. Sometimes it’s just manic laughter and explosions.

I assume this is standard career satisfaction stuff?

Stand Your Ground Laws

I’m reading a lot about Michael Dunn and how Stand Your Ground law are terrible. I agree. But I feel a bit like you might feel if somebody said Han Solo were his favorite Star Trek character. Right page, wrong book. The Stand Your Ground discussion conflates threedistinct problems in an unhelpful way.1 For my own peace of mind, I’d like to address what 1) Stand Your Ground laws do and do not affect, 2) why a mistrial or a “not guilty” is not the same thing as “innocent,” and 3) why the actual problem is a lot bigger and a lot harder than whether Stand Your Ground laws have affected the results of jury trials.

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The earth is just a dead thing you can sell.

—I’m working on this training/presentation thing on foreclosure prevention and housing preservation. I think I’ve nailed the first slide—but I’m having trouble deciding where to go from here.

On representing yourself in court

  1. Don’t do it. I mean, don’t do it if you can avoid it. Representing yourself in court is a bit like playing with fire. It’s never prudent. But if you’re going to do it, a few basic precautions can help avoid the most dramatic mistakes.
  2. If you do not show up, you will not win.
  3. The attorney for the other side is not your friend. Be careful.
  4. Be respectful to the judge.

Judge says Detroit bankruptcy filing was unconstitutional, must be withdrawn

This is a fascinating legal conflict. Here’s how it looks like the legal puzzle.

Rule 1: (State law) You must do Y.

Rule 2: (State Constitution) You may not do anything to permit X to occur.

Rule 3: (Federal Bankruptcy Law) If you do Y, you X must occur.

Rule 4: (U.S. Constitution) If rules conflict, the higher numbered rules control.

The answer to the puzzle seems to be that pursuant to Rule 4, Rule 2 trumps Rule 1, and that Rule 3 is not invoked.

Judge in Manning Case Allows Charge of Aiding the Enemy

While I don’t think that Manning will ultimately be convicted of aiding the enemy, it’s discouraging that the charge is allowed to progress. I understand that illegally releasing classified information is likely to lead to charges of illegally releasing classified information. But what Bradley Manning did is fundamentally different than deliberately aiding the enemy.

On that Proposition 8 Ruling

The Supreme Court could have ruled that everybody has a Constitutional right to marry, regardless of where you lived, regardless of gender. That was the dream. But … it was very likely.

Instead, the court ruled that because the appellants lacked standing to bring the appeal, the appeal should be dismissed. “Lacked standing,” is a legal term that means something like, ” GTFO. It’s none of your damned business.”

The Supreme Court punted, which means it didn’t actually get to the point everybody wanted it to get to. Then again, the Court ruled that gay people getting married in California isn’t going to hurt the petitioners, so it’s none of their damned business. That’s another way of getting the point.

So yes. It’s a punt. A punt strait to the ass for intolerance.

On the legality of death rays

Legal impossibility is a defense to an attempted crime. You cannot be convicted of attempted loitering if there is no law against loitering. This is true even if you thought there was a law against loitering. Nor can you be convicted of attempted trespassing if the place you’re attempting to trespass in is somewhere you had every legal right to be. If you try to sneak into a party that you were invited to in one of those stupid evites you deleted, you haven’t committed a crime, even if you tried to commit one.

Factual impossibility, on the other hand, is not a defense to an attempted crime. The guy who tries to solicit sex from a 14-year-old in an online forum can’t assert the defense that because there were no actual 14-year-olds in the forum his plan wouldn’t have worked. This is true even if it turns out that everybody in the forum was either another predatory or undercover law enforcement. If you try to sell cocaine but end up selling baby powder because somebody screwed you upstream, you’re still guilty of the attempt.

The tiny exception to the factual impossibility rule is inherent impossibility. If it turns out that your plan was so flawed that no reasonable person would consider it a reasonable way to accomplish whatever you are trying to accomplish, you have a defense. An inmate attempted to kill a judge using a voodoo doll. It didn’t work. He was not, however, guilty of attempted murder. If you try to contact a recently-deceased CEO using a Ouija board and buy stock based on what you believe you’ve learned, you’re not really guilty of insider trading. This is all true even if you truly believed it would work.

The logic behind this is less obvious. If you’re trying to kill somebody in the way you consider most efficient, is it less blameworthy to choose voodoo than, say, a handgun? Just because it’s silly doesn’t make it okay. Maybe if somebody tries to kill somebody in an inherently impossible way, we suspect that they weren’t really trying to succeed. Or maybe there’s some mental illness. Or maybe the probability of them ever succeeding at murder is so slim that they simply aren’t dangerous.

So now we have this KKK deathray plot. As the story goes, a couple of guys wanted to build a deathray to sicken or kill people they thought were enemies of Israel. With assistance from an FBI plant, they built something they thought was a death ray. The problem is that a portable death ray of the type described is not a real thing. Maybe something like it could work at a very short distance with access to a huge amount of electricity, provided the target didn’t move around.

I don’t see this as a glorious victory for law enforcement. I’m not sure there’s even a crime here.

"The process is broken."

I’m still simmering over this old Morning Edition story lamenting Florida’s foreclosure process. Before declaring a process is broken, a responsible journalist ought to ask two questions:

  1. What are the goals of the process?
  2. Are those goals being accomplished?

If the answer to that second question is “yes,” the process isn’t broken. It doesn’t mean it’s a good process—but identifying the reason for the process is important if you’re going to ask whether there might be a better way to go about it.

In this case, the story unreflectively blames a “cumbersome legal process” and “unscrupulous foreclosure [defense] attorneys.” There doesn’t seem to be much desire to discuss whether that process has prevented people from losing their homes who should not lose their homes. Or whether those “unscrupulous” attorneys have meritorious claims. If the homeowners actually defaulted on the loan, lenders actually followed the rules, and the lenders actually showed up and competently presented their case—it could be over in a tenth of the time it takes. But for some reason things keep dragging out and homeowners keep winning these suits. Perhaps there’s a better explanation than “process is broken.” It could be that the indigent homeowners just have magical attorneys who are way better than anything the lenders money can buy. Or maybe the homeowners actually have a case worth vindicating.