TOTD 2018-08-24: The Legal System is for the Protection of the Accused

There are always ways of enforcing norms and mores.  These show up in all human societies.   Even in a criminal gang, pirate crew, or savage tribe, there are rules, and breaking them will get you punished.   The social contract in the US gives the state most of the power as a grant from the sovereign people.  Other countries have differing rules, but the fundamental principle behind the rules is ensure justice and fairness, or at least the appearance of such.

This is especially applicable when someone is accused of a crime.  Because mobs demand blood and the state is not entirely trustworthy, we weight the system in favor of the accused.  Even if someone kills some poor guy in front of a police station on camera with dozens of witnesses, we give him his day in court.  However, this only works if the government is willing to punish wrongdoing.

Once you lose that, well, it falls to the old rules.  The lex talionis, the Law of Revenge.   Hang em’ High!

Jed Cooper: You’re lynching those boys. Why?

Judge Adam Fenton: Why? Because of you, Cooper. Because of that beautiful, that magnificent journey you took to bring three killers to justice. Because if the law didn’t hang them, the next posse that goes out will say, “Hang ’em and hang ’em high, there’s no justice in Fort Grant.”

We see this happening in Britain.  The law is  aiming to prevent hurt feelings and political incorrectness, rather than administer justice on behalf the populace.  Therefore, you turn to the old rules:

http://www.dailymail.co.uk/news/article-6062653/Acid-attacker-beaten-gang-vigilantes-east-London.html


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Birth-wrong Citizenship

Two  terrific articles (Roach and Eastman) on AG today, dealing  with analysis of Wong Kim Ark,  and, most importantly, with the legislative history of the words  “and subject to {United States} jurisdiction”.   The drafters of the 14th Amendment never envisioned birth tourism nor citizenship for children of a woman who entered this country illegally.

I never read about the legislative history of the “jurisdiction” clause before. Of course the word has more than one meaning.  One is territorial: if you are physically here, for any reason, you have to follow our laws.  And if you break them, you will get “due process” under those laws.  That’s partial jurisdiction.

The second meaning, and the one the drafters intended, is full jurisdiction.  This means the mom (and yuh: why talk about “people” since it is  only the physical location of the mother which matters)  owes her sole allegiance to the US.  It means the mom owes no allegiance to, nor claims citizenship in, any foreign power.  Border jumpers, women from any country who come here and overstay their visas, and women who come here as tourists,  do not meet this criteria.

Unqualified “birthright citizenship” pretty much unique to our country among developed nations,  has got to go.

It is the great lure, the irresistible incentive, which begs for violation of our our sovereignty.

I am very encouraged to see sound and irrefutable scholarship from the Right  to support this position.  We are getting serious at last.  We are no longer going to be cowed by the “nation of immigrants” cliché.

It’s about time.  Let’s hope it’s not too late.

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Follow-up on Legal Definition of Malpractice

A few days ago, @10cents had a post on malpractice. In a comment, I promised to elaborate on the legal definition of malpractice. Here is installment 1:

Commenting on @10cents  recent post on malpractice and related professional misdeeds, I promised a post on the legal definition of malpractice. In order to husband my personal resources and keep this to less than book length, I will write and publish it in installments. I think it important at the outset to distinguish between simply doing a lousy job at something and actual malpractice; allegations of malpractice do not constitute proof; every bad outcome does not result in a lawsuit. Now, @10 cents’ original post addressed professionals and his use of the term malpractice was apt, since legally, malpractice is a term of art applied to professional negligence. Professional negligence contrasts with ordinary, run-of-the-mill negligence only to the extent that facts, practices and causation of alleged professional negligence are usually arcane and beyond the experience of ordinary citizens who serve on juries. Thus expert witnesses come into play.

The legal difference then, is that when it comes to ordinary negligence, laymen can generally understand whether or not, say, the supermarket removed the banana peel from the floor quickly enough to prevent  a fall and broken arm or whether or not a driver was tailgating and caused an accident. All the underlying facts in such cases are within the life experience of the average juror, whose job is to 1. be the finder of facts (decide whether the plaintiff’s or the defendant’s case is closer to the truth) and 2. to apply the law to these facts as instructed by the judge. This manner of pursuing truth, by the way, is known as “the adversarial truth-finding process.” Each side has an incentive to give it its best shot. Compare an ordinary auto accident case to one alleging that a permanent neurological deficit resulted from otherwise successful craniotomy surgery to remove a brain tumor. Since laymen know nothing about brain surgery, in such allegations of malpractice the law requires testimony of expert witnesses, whose job is (theoretically) to educate the jurors so they may sufficiently understand medical facts which are not part of their life experiences. More on expert witnesses later.

Thus far, we have established that, legally speaking “malpractice” refers to negligence on the part of an individual or entity engaged in a profession, whose activities are beyond the ordinary experience of most jurors. Keep in mind that all negligence/malpractice cases are due to the occurrence of property damage or bodily injury plus the belief on the part of the plaintiff that it should have been prevented. Malpractice/negligence must be distinguished from intentional torts, which result in damage to property or bodily harm in consequence to an intentional act, not accidental bad results. Intentional torts, like assault or battery – require proof of intent – can result in criminal liability and possible incarceration. In contrast, negligence law acts to make injured plaintiffs economically whole so does not inflict punishment. Further, intentional torts may be either civil (the plaintiff is an individual or private entity) or criminal (the plaintiff is the state). Only in exceptional circumstances may negligence (gross negligence or recklessness) lead to criminal penalties. In order to succeed, an allegation of malpractice requires proof by a preponderance of the evidence (that it is more likely than not) – that each of the following four elements has been proved:

  1. The defendant owed a duty of reasonable care to the plaintiff while performing acts which could foreseeably cause harm. i.e. the defendant was obliged to perform within the standard of care.
  2. The defendant breached that duty. i.e. the defendant did not adhere to a reasonable standard of care.
  3. The breach of the standard of care was the proximate cause of the harm or damages. i.e. that not following a reasonable standard of care was both the cause-in-fact of the damage and a cause which the law chooses to recognize as sufficiently closely related to the damages.
  4. The amount of economic damages must be reasonably proved. The economic value of damaged property must be shown, along with the economic consequences of bodily harm, such as medical expenses and loss of income and, in some cases, pain and suffering.

Much case law exists, beginning with ancient English common law, which fleshes out each of these elements. Cases are quite wide-ranging due to the infinite number of possible fact patterns of human interactions. The variety of facts as to standard of care, proximate causation and damages, as well as their varied interpretation by different courts at different times, accounts for the large number of cases which law students must read. Most principles of negligence law were developed by the common law on a case-by-case basis. In the common law, judges relied upon precedent established by similar cases or wrote opinions distinguishing the present case as different for specific, articulated reasons. The value of this type of jurisprudential system is that it allows efficiency in human action and maximum individual liberty in interpersonal interactions, while allocating economic loss of bad outcomes retrospectively. The alternative is to live under a rigid set of a priori rules aimed at “safety,” regardless inefficiency or degree of constraint on individual behavior. Today, some might assert we live in the worst of both possible worlds – a web of common law and tangled, overlapping statutory and regulatory law which are simultaneously stifling and coercive.

As a jurisprudential matter, much of what developed in common law over hundreds of years has been systematized into various “restatements” of the law which have been adopted as statute or regulation in some states and I should add that most negligence law is state, as opposed to federal (the only negligence cases heard in federal courts are those which involve parties from different states – so-called “diversity of citizenship” jurisdiction of federal courts).

In a further installment (when I can get to it), I will expand on each of the above elements of required proof of malpractice. There are lots of interesting twists, as you can imagine, when it comes to blaming someone else. American tradition and culture, it seems, have made for creativity both in entrepreneurship and in imaginative plaintiff theories. As well, the U.S. is an outlier when it comes to who pays litigation costs. Here, each side pays its own costs of litigation. In most of the rest of the world, the loser pays costs of both sides. That rule acts as a strong deterrent of frivolous complaints. Lacking such deterrence, and given the unpredictability of juries, we see much legal frivolity and some outrageous results (like a $2 million award for a self-inflicted burned crotch, where a plaintiff spilled cup of hot drive-through take-out coffee on herself!).

To be continued…


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Law Review Article

To all my Ratburger friends, I was published in an online law journal. You can find the article here:

https://www.natlawreview.com/article/sanctuary-federalism-affirming-separation-powers-between-states-and-federal

I am going to warn you all now, you probably won’t agree with it, but I still think you will all enjoy it and find something to think about.

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More Media Perfidy

Our betters at the NY Times – the newspaper that illegally published the stolen “Pentagon Papers,” the one which recently prominently published an op-ed aimed at rehabilitating the so-called “Steele Dossier,” – that newspaper, along with the Washington Post – is now editorially averring that we should not be allowed to read the Nunes memo!

So a medium which publishes whatever it wishes, in its breathtaking hubris, now wants to censor a report of legitimate oversight by our elected representatives; a report documenting egregious wrongdoing. Beyond possibly oversight of national security agencies, is there any oversight more essential than that of our most powerful national police agencies (we are not even supposed to have federal police, yet, by any fair reading of the word, we surely do!)?

There is virtually no oversight of the FISA Court, and here, it is apparent that it was willingly misled by the FBI for blatantly political purposes on behalf of the Democrat Party and its nominee Hillary Clinton – i.e. the ones who paid for the scurrilous and false opposition research forming the very basis of the FISA warrant. One would think that a federal court would require an extremely high standard in permitting surveillance of a Presidential nominee’s campaign. Not here, it seems in our race to become a banana republic.

Under the exclusionary rule, it should be certain that any evidence derived from the investigation pursuant to this warrant cannot be used in any legal proceeding.”Fruit of the poisonous tree” is a rather weak metaphor. I prefer something scatological alluding to miasmas and spoor. The entire matter was incrementally excremental. The court even saw fit to defer to the politically-inspired lies over some period of time. Since the FBI never told the court the dossier’s provenance and known falsity, the court saw fit to renew the warrant three times rather than to correct its error. I guess FISA judges don’t read newspapers or take judicial notice of small matters of fact which are known to the general public.

Fake news or real facts? It is now clear which is preferred by the NY Times.


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A Nation of Laws or of (Wo)Men?

FoxNews reported, in an interview with Judge Napolitano, that Trump is in legal jeopardy because of emails related to Donald Jr.’s setting up a meeting at Trump Tower to ostensibly obtain dirt of Hillary Clinton. (link: https://www.newsmax.com/politics/andrew-napolitano-trump-tower-meeting-robert-mueller/2018/02/01/id/840953/ ) Supposedly, White House communications director Hope Hicks wanted to prevent the release of those emails. According to the judge’s analysis, this is conspiracy to obstruct justice. How it pertains to Trump himself is beyond me, but if it is even slightly plausible, expect the MSM to run with it screaming.

Lets us make a comparison. Because someone on Trump’s team wanted to hide emails, that is viewed as prima facie conspiracy to obstruct (conspiracy because it involved more than one person). Now, where have we seen that before?

Hillary Clinton ignored the law and had created (she did not do it herself) a private server to conduct her official State Department correspondence. That, in itself is blatant conspiracy to perpetrate a fraud on the US government, whose Freedom of Information Act requires all public officials to use official channels (the State Department’s email system) and to preserve all their official correspondence. After an investigation was already underway, 33,000 emails on that server were deleted and deleted in a such a way as to make them unrecoverable from the local hard drive (setting aside the question of whether or not they were recoverable elsewhere – not that the FBI seemed very interested in making the effort). As well, numerous cell phones were destroyed with hammers – just the kind of things ordinary folks do for the sake of personal privacy.

Saint Comey, aided and abetted by the MSM perpetrated a massive deception by way of deflection from these obvious felonies. They all framed the issue in terms of “carelessness” with classified information. That, too was felonious, but much more easily excusable. And the spin saw to it that that was all anyone talked about. Meanwhile, the blatant acts for which regular men and women go directly to jail – without passing “Go,” on a regular basis were simply ignored! Such cases for ordinary defendants rarely ever go to trial. They are pled out, since defense lawyers know their clients don’t stand a chance.

What Hillary did was uncontrovertibly conspiracy to commit fraud and conspiracy to obstruct justice. For anyone else, many or all the emails would have been recovered from other servers after a painstaking forensic investigation. Anyone else would have faced a withering interview with the FBI under oath. For anyone else, the FBI would not have participated in the clever misdirection – away from blatant felonies and toward simple carelessness. Even that “carelessness” was an intentional misdirection away from the “gross negligence” it actually represented.  We now know that Comey’s original exoneration statement, written months before Hillary was even interviewed, was redacted since it initially used the term “gross negligence” – the legal standard for requisite mens rea.

Not only have we become a nation of (wo)men and not of laws. It redounds to the benefit of the political party immune to shame, since the MSM never holds them to any principle except expediency. A Democrat’s multiple felonies are covered up by the FBI director. Meanwhile a Republican who merely inhabited the same building as his son working for his campaign (and who may have actually done not a thing wrong), is prima facie guilty of conspiracy to obstruct justice.

All this, in plain view, perpetrated by federal law enforcement at the highest levels.  Were there any actual journalism happening in the MSM – ‘investigative reporting” (à la Mike Wallace on 60 Minutes) is reserved exclusively for Republicans and is indistinguishable from character assassination. This exemplifies the faking of news at its most refined practice.


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