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.... [Read More]

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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.... [Read More]

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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.... [Read More]

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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!)?... [Read More]

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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?... [Read More]

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