Laws and Communities

This letter appeared at Cafe Hayek, as an example of the importance of local knowledge (in contrast to dictates from a non-local authority). It’s easy for someone to decree “there ought to be a law”, and wind up causing more trouble than the law is able to solve, simply because of a lack of knowledge about the particular circumstances.

Another theme I’ve noticed has to do with the difference between law and legislation. To the extent that law is a description of what actually happens, you can’t change the laws by decree. You can write legislation, but if it violates natural law, it won’t work.

Dear Editor:

Today’s NY Times has a heart wrenching piece about how employers disregarded the needs of pregnant employees. The stories presented sound horrific. Although, I always want to fully hear the other side.

In fact, as a small business owner — who ran a warehouse — I can speak to that other side.

First and foremost, employers’ responsibility is to assure fairness to ALL employees and keep peace in the workplace. When making special accomodations for one employee, an employer must ensure she is not overly burdening other employees. Most particularly, we must avoid divisive resentment. Both of these require the assistance of the disabled employee.

Over the years two different warehouse employees were pregnant. Employee A solicited the help of her co-workers. She found ways to lessen their load to compensate for the added burden she placed on them. Employee B used the law to demand special accomodation. Employee B showed little concern for how her request impacted others.

In situation A, it was a pleasure to provide special accommodation. All happily chipped in.

In situation B, all the other employees complained about fairness to them — how they had to do the hard work for Employee B. Resent abounded, other employees claimed their own disabilities — so they also could get accommodations, etc. The workplace — despite my best efforts — became angry.

Laws do not overcome human nature. Workplaces are communities. If we want to help those with “special” needs, it is as much incumbent upon the disabled employee as it is on the employer. After all none of us want an employer to be a dictator using the law to force employees to act against their own will. Stricter and stricter laws do exactly that — force employers to dictate policies that should happen naturally in a community of workers.

[emphasis added]

The Riot Act

The Riot Act

Ever wanted to read someone the Riot Act? Apparently all you need to do is find a group of 12 or more people “tumultuously assembled” and declare the following (preferably with a British accent, of course):

Our Sovereign Lord the King chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the King.

(A bit of Westlaw research suggests that this isn’t the entire act as passed in 1715, but it’s the part that had to be read to disperse the crowd; anyone who hadn’t dispersed in one hour after this was read was guilty of “felony riot.”)

Law Givers, Law Makers, Law Bearers

Cafe Hayek Quotation of the Day for Saturday the Thirteenth:

The early “law-givers” did not make the law they “gave”; they studied social traditions and informal rules and gave voice to them, as God’s, or natural, law. The common lawyer, Sir Edward Coke, championed seventeenth-century social norms as law commanding higher authority than the king. Remarkably, these forces prevailed, paving the way for the rule of law in England. Similarly, the cattlemen’s associations, land clubs, and mining districts in the American West all fashioned their own rules for establishing property rights and enforcing them: the brand on the hindquarters of his calf was the cattlemen’s indelible ownership signature on his property, enforced by gunmen hired through his cattle club; squatter’s rights were defended ably (possession is nine points of the law?) by the land clubs composed of those brave enough to settle wilderness lands in advance of veterans exercising their land script claims, and of settlers under the Homestead Act; mining claims were defined, established, and defended by the guns of the mining clubbers, whose rules were later to become part of public mining law.


DBx: Yes.

No myth is responsible for as much mischief through the ages as is the myth that proclaims that social order must be designed, as if society is a mechanism to be engineered. And no particular instance of this myth is worse than that which insists that law – the rules that govern human interactions – is and can only be the product of the state.

The state makes legislation (including, sometimes, codifications of law). The state never makes law.

This puts human law in the same realm as natural law. When scientists, or earlier, “natural philosophers”, propounded “laws of nature”, they were not drafting legislation. Rather, they were attempting to deduce the underlying laws by which nature ran.

The difference between the human realm and the natural realm is that it’s possible to impose rules (within limits) in the human realm.

Kava-Notes from National Review

Saving for future reference…

www.nationalreview.com/corner/christine-blasey-ford-therapy-notes

This is a serious problem, and it undercuts any effort to prove her claims against Brett Kavanaugh. The American legal system is characterized by mandated transparency. In criminal cases, the prosecution is required to release exculpatory information. In other words, it can be required to undercut its own case. In civil litigation, parties are generally required to turn over not just all relevant, non-privileged documents to the other side, they’re required to also turn over all documents that could lead to the discovery of relevant information. That’s one reason why the decision to litigate should never be taken lightly. File a lawsuit, and you’re opening the book on your life.
[snip]
This policy is vitally important for the fact-finding process. Ford’s failure is all the more troubling given that she’s not even promising to turn them over to the FBI unconditionally. And keep in mind that if she turns over the records, there is nothing stopping her from including a written explanation of their contents, including an explanation of perceived inconsistencies or damaging excerpts.

Moreover, let’s not forget that the FBI is not the relevant decision-maker. The Senate is rendering final judgment on Kavanaugh’s confirmation, and this action disrespects the entity that’s constitutionally entitled to render its advice and (perhaps) its consent. In civil litigation, the persistent failure to turn over relevant information can lead to dismissal of a plaintiff’s case. In criminal cases, the failure to release exculpatory evidence can overturn convictions. Here, at the very least, the reluctance to cooperate should adversely impact the Senate’s consideration of Ford’s very serious claims.

www.nationalreview.com/2018/10/christine-blasey-ford-must-provide-therapy-notes-to-senate

www.nationalreview.com/2018/10/brett-kavanaugh-case-against-nominee-collapsing

www.nationalreview.com/2018/10/brett-kavanaugh-perjury-allegations-farce

It’s certainly true that Kavanaugh tried to minimize the least admirable aspects of his adolescence — understandably, given the withering fire he was under and the basic irrelevance of the matters under discussion — but there is no evidence he lied.

Much of the focus is on his drinking. There are two main lines of argument here. The first: Kavanaugh has misleadingly portrayed himself as a “squeaky clean” “choir boy,” but there is plenty of evidence that he was a heavy drinker. This begins from a false premise. Kavanaugh has said he was pious and hardworking in high school and college, but he also said in his Senate testimony that he drank excessively on occasion: “I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did.” Drinking in high school and college is obviously compatible with attending church or participating in community service.

www.nationalreview.com/corner/kavanaugh-testimony-clinton-conspiracy-not-blamed

It’s amazing how many people believe, or at least say, things about Kavanaugh’s testimony that aren’t true. One of them is that he accused the Clintons of orchestrating a conspiracy against him or that he attacked the Clintons. Here’s the relevant portion of the transcript:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

He didn’t say that the Clintons have been running the campaign against him, just that many of his opponents are motivated by anger and raw feelings over the 2016 election, which is self-evidently true.

www.nationalreview.com/2018/10/atticus-finch-was-on-the-wrong-side

Originalism

From National Review:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

[snip]

Pith

Source: Watcher of Weasels

Bookworm is cleaning out her closet, and came across, among other things, some pithy sayings from her Contracts law class….

“Watch out for chameleon words. They change with the context.”

“The absolute best defense is a counter-claim.”

“Stay with something simple . . . like logic.”

“Always look to see what the reason for the rule is. If the reason isn’t applicable, then maybe the rule isn’t applicable.”

“It’s tooth fairy time. You are departing from reality.”

“Common sense says that’s crazy.”

“The peasants are restless. Let’s promise them a circus.”

“It’s not the village idiot you have to be worried about. It’s his attorney.”

“Put yourself where you were the day before you entered law school: intelligent and common sensible.”

“It’s like shopping for drapes to match the towels.”

“Article 9 comments [I assume it was the Restatement of Contracts, 2nd] were written by some cockroach flinging itself at the typewriter.”

“You can’t legislate common sense, but you can legislate lunacy.”

“To a litigator, perjury is just emphasis of different facts.”

Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

Source: Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

Makes a person think perjury laws should be applied to lawyers — especially prosecutors, who control whether a criminal case goes forward or not.

This week’s Case of the Week is inspired by the so-called “documentary,” Rest in Power: The Trayvon Martin Story, produced by Jay Z and Trayvon Martin’s parents.

The first two episodes focus enormous attention on the fact that George Zimmerman was not arrested until April 11, 2012, 44 days after he shot and killed Trayvon Martin on February 26.

It’s all presented as if there is no possible rational and lawful reason for not arresting George Zimmerman. As if his guilt is the most obvious thing in the world, and only a racist police department and a racist State Attorney would refuse to make the arrest of a racist killer.

Never addressed, naturally, are the due process and civil rights that protect law-abiding citizens. Lawful arrests require the police to find probable cause of a crime.

It is, of course, undisputed that Zimmerman shot and killed Trayvon Martin. Not all killings, however, are crimes. A killing committed in lawful self-defense is legally justified and completely legal.

In evaluating whether probable cause exists, then, the authorities must conclude Zimmerman’s actions were probably unlawful based on the evidence they collect.

In Zimmerman’s case, there was literally zero evidence inconsistent with self-defense, a claim he made from the very start. There was also considerable evidence consistent with self-defense. As a result, the entirety of the evidence overwhelmingly favored the view that Zimmerman killed Trayvon Martin in lawful self-defense.

Ultimately, of course, imported State Attorney Angela Corey charged Zimmerman with second-degree murder anyway. How was she able to build a foundation of probable cause in a few days when Sanford Police Chief Lee and local State Attorney Wolfinger had not done so for weeks?

Simple: her legal team fabricated the “facts” to create probable cause where none existed. Their affidavit pointed to “evidence” that did not exist, and that they knew did not exist. Note that this false affidavit is a sworn document, signed by two of Corey’s investigators under the pains and penalties of perjury. (That affidavit is embedded below.)

For example, the affidavit states “Martin attempted to run home …” and later “…Martin who was trying to return to his home.” Nobody familiar with the facts, the timing of events, and the layout of the apartment complex can believe this to be true. Martin was a healthy 17-year-old football player. He had a full two minutes to cover 400 feet from his starting position to his apartment. Even an old, desk-bound attorney like me can cover three times that distance at a modest jog, much less in fearful flight.

The affidavit also says, “When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that, and that the responding officer would meet him. Zimmerman disregarded the police dispatcher, and continued to follow Martin …”

There are two claims here, one an outright lie, and the other a fabrication.

The outright lie is that Zimmerman disregarded the police dispatcher’s suggestion. As clearly captured on the recorded conversation, Zimmerman was immediately compliant when told by the dispatcher “We don’t need you to do that.” He said, “OK.”

The fabrication is that Zimmerman “continued to follow Martin.” The only reason Zimmerman got out of his car at all was that he informed the dispatcher that Trayvon had run out of sight behind a building, and the dispatcher asked Zimmerman to identify where Trayvon had run to. Unable to see through a building, Zimmerman exited his vehicle and went to peer around the corner of the relevant building. It was at this point the dispatcher made his suggestion, and Zimmerman complied. There is literally zero evidence—none—that Zimmerman “continued to follow Martin.”

The affidavit also states that “Zimmerman confronted Martin, and a struggle ensued.” This is a very serious claim of fact to make, but if true it guts Zimmerman’s claim of self-defense. If Zimmerman started the conflict, he lost the innocence legally required for a valid self-defense claim.

As you might expect by this point, however, Zimmerman’s confrontation of Martin is utter fabrication. There is literally zero evidence—none—that Zimmerman confronted Martin. To the contrary, all available evidence supports Zimmerman’s claim that he was ambushed by Martin.

So did the prosecutor not study the evidence? Was the prosecutor just stupid, or was she lying through her teeth?

Although the laws may not demand it, I think a prosecutor who pursues a case with this little supporting evidence should be required to justify, in court, under oath, the decision to bring the case to court.

Title IX vs the Constitution

Some people just can’t resist putting the “Twit” in Twitter.

From Advice Goddess blog:

From Rewire (in that tweet above), Shiwali Patel reports this gem about the supposedly “fair process” under Title IX for sexual assault.

…There is no inherent conflict between ensuring a fair process for survivors and a fair process for alleged perpetrators. For the record, when we advocate that schools be trauma-informed in responding to sexual violence and that schools stop and prevent sexual harassment, we are not asking the school to take away due process rights. It’s possible to advocate for both a fair process for all students and the safety of survivors of sexual violence. Take cross-examinations, for example, where institutions could ensure a fair process by allowing parties to submit questions to each other through hearing panels or investigators, yet still protect the safety of survivors by not permitting direct questioning by the accused student.
To highlight a recent case, a federal court last month held that the University of Michigan had violated an accused student’s due process rights to a live hearing and an opportunity to question the woman who filed the complaint against him. In doing so, the court “consider[ed] the emotional harm and trauma” to survivors of being directly questioned by their rapists. It concluded that the accused student had a right to question the woman who filed the complaint, but could only do so by submitting his questions to the student resolution panel or other school administrators, who would then ask the questions on his behalf.

I’m no lawyer; I’m just somebody who follows a few lawyers on Twitter; and even I knew immediately that this was, shall we say, merde du cheval.

Several lawyers chimed in pointing this out.

My comment was:

I think Ms. Lhamon’s tweet should be construed as a waiver of the right to cross-examine should she ever be in a legal dispute.

Inevitable Blood On Your Hands

A golden oldie, from Marginal Revolution:

…Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

Any law that is enacted in your name will be backed up by the thread of deadly force. Inevitably, the threat will have to be followed through upon. That means sooner or later, someone will die because of that law. So some blood on the hands is inevitable.

I thought of this column today after reading about Santa Barbara’s ban on plastic straws:

On Tuesday, the Santa Barbara City Council unanimously passed a bill that prohibits restaurants, bars, and other food service businesses from handing out plastic straws to their customers. …Santa Barbara… has banned even compostable straws, permitting only drinking tubes made from nonplastic materials such as paper, metal, or bamboo. The city also has made a second violation* of its straw prohibition both an administrative infraction carrying a $100 fine and a misdemeanor, punishable by a maximum fine of $1,000 and up to six months in jail. Each contraband straw or unsolicited plastic stirrer counts as a separate violation, so fines and jail time could stack up quickly.

…Assistant City Attorney Scott Vincent tells me criminal charges would be pursued only after repeat violations and if there were aggravating circumstances.

I wonder what direction the slippery slope runs in this case.