A mere two days after I lavished praise on Alex Tabarrok’s new book, which (among many other things) makes an eloquent case for patent reform, the U.S. Patent Office has proved that nobody’s listening by issuing patent #8,082,523 to Apple, Incorporated for a “portable electronic device with graphical user interface supporting application switching”. The abstract, in its entirety, reads as follows:
Our reader Jonathan Campbell has an excellent post on a bizarre example of legal “reasoning”. A defendant fires 95 shots into the woods; his friend fires 5. A man in the woods is hit by a bullet and dies. The defendant is 95% certain to be the killer (in other words, he is the killer beyond a reasonable doubt), but he is acquitted because the nature of the evidence is “statistical” and therefore cannot be the basis of a conviction.
This tends to confirm my suspicion that a legal “education” consists primarily of having your capacity for logic beaten entirely out of you. As Jonathan points out, all evidence is statistical in exactly the same sense that this evidence is. I put a bullet through your heart and you take five minutes to die. Did the bullet cause your death? Well, not certainly — there’s some small chance that you died of a heart attack that would have killed you anyway, thirty seconds before the bullet was able to finish its job. Is there a high probability I caused your death? Yes. Did I do so beyond a reasonable doubt? Yes. Is the remaining doubt of a statistical nature? Yes. So if there were any consistency in the law, of course I’d be acquitted. And of course I would not be. Which means, as has been noted in this space before, that the law is an ass. So, perhaps, are a substantial fraction of its practitioners.
John Thompson spent 18 years in prison, 14 of them on death row, for a crime that it seems very likely he did not commit. Prosecutors were aware that blood found at the crime scene was not Mr. Thompson’s, but they failed to turn this evidence over to the defense attorneys.
Does Mr. Thompson deserve compensation? A jury thought so, to the tune of $14 million. But five Supreme Court justices disagree, so Thompson gets nothing.
That’s because, according to the majority, it was only a single rogue prosecutor who misbehaved, so it would be wrong to punish the whole district attorney’s office. The dissenting minority argued that in fact there was a pattern of lax training in that office, so the jury award should stand.
But if an innocent man spends 18 years in prison, why should his compensation depend on the nature of the misconduct that sent him there — or even on whether there was any misconduct in the first place?
Look. We’ve pretty much all agreed that we want to have a justice system. Since all justice systems make mistakes, that means we’ve pretty much all agreed that we’re prepared to tolerate a certain number of mistakes. The question, though, is: Who should bear the costs of those mistakes? Should the costs fall entirely on an unlucky few like John Thompson who just happen to have been in the wrong place at the wrong time, or should they be spread more evenly among the populace that is perfectly happy to share in the benefits of the justice system?
Along with Mike Rizzo at the Unbroken Window, I am ambivalent about the Florida district court ruling thats strikes down Obamacare (by first striking down the mandate for individuals to be insured). Yes, Obamacare is bad policy; yes, it’s arguably unconstitutional. But as bad and unconstitutional policies go, it’s relatively benign. I (like Rizzo) am uncomfortable with a judiciary that can reject Obamacare while accepting agricultural subsidies, affirmative action, the Americans with Disabilities Act, and laws that dictate the size of your showerhead.
In fact, unlike, say, agricultural subsidies, the mandate for individuals to buy health insurance is at least a defensible response to a genuine problem — in fact, it’s a defensible response to two genuine problems.
First, as long as people are uninsured, they are going to show up at emergency rooms demanding care, and they are going to get it. Arguably, the best policy is to turn those people away unless they’re able and willing to cover the costs of their own care, but we all know that’s never going to happen. Given that we’re going to make medical care available to everyone, there’s at least an argument for making everyone pay for it.
Second, there really are good arguments for insuring people regardless of (at least some) pre-existing conditions; most of us would have insured against those conditions before we were born if we’d had the opportunity, and the inability of pre-born souls to sign insurance contracts can be seen as a form of market failure that bears correcting. But if you don’t allow discrimination on the basis of pre-existing conditions, then you’ve pretty much got to have an individual mandate; otherwise everyone waits till they get sick to buy insurance and the whole system breaks down.
Now the Obamacare system is very far from my preferred approach to these problems, but at least it’s a plausible response to a real set of problems, and hence arguably amounts to a system of taxes designed to provide for the general welfare of the United States, as allowed under Article I, Section 8 of the Constitution. That’s a lot more than you can say about, say, mandatory wheelchair ramps, the cost of which often far exceeds what you’d have to pay the wheelchair-bound to compensate for their absence. It’s a lot more than you can say about the Post Office, or the Commerce Department, or the Occupational Safety and Health Administration.
According to U.S. District Judge Henry E. Hudson, the same government that requires you to buy retirement insurance (via Social Security) is constitutionally barred from requiring you to buy health insurance.
Apparently some idiot lawyers have gotten it into their heads that the Social Security mandate is okay because it’s called a “tax”, whereas the Obamacare mandate is not okay because it’s enforced by what’s called a system of “fines”. From which I infer that if the government taxes you $1000 and uses it to buy you some health insurance, that’s constitutional. Or, if the government gives you a tax credit for buying insurance (after raising taxes to cover the cost of everyone’s credits, of course), then that’s constitutional — just as tax credits for home insulation are constitutional. Whereas if they just require you to buy $1000 worth of health insurance directly, that’s not constitutional even though it has exactly the same consequences as other policies that are constitutional. From which I infer that the law is an ass.
A U.S. District Court has overturned California’s Proposition 8 (the prohibition of same-sex marriage), which, says the court, violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment. I am very happy to hear that the courts are open to overturning legislation that violates the Fourteenth Amendment. Next up, Title VII of the 1964 Civil Rights Act!
The issues are pretty much identical. Here is the District Court’s reasoning in the California case (this is the Court’s summary of the plaintiffs’ position, which the Court endorses):
Michelle Lyn Taylor, age 34, got drunk one night and tried to seduce a 13 year old boy by taking his hand and putting it on her breast. This was definitely Not Cool. Nevada prosecutors thought it was so uncool that they charged her with a crime (”lewdness with a child under the age of 14″) that carries a mandatory life sentence and then refused to plea bargain. (Two years earlier, a woman who had sexually abused two boys repeatedly over the course of a year was offered a plea bargain and served ten months in jail.)
In the videotaped sentencing hearing, which you can see in its entirety below, the judge seems bemused by the prosecutors’ choices but unmoved by the defense attorney’s attempt to raise a constitutional objection. The defense attorney, not entirely unreasonably, pretty much loses it.
Michelle Lyn Taylor is now serving a life sentence and will have her first shot at parole ten years from now. Does this strike any of you as reasonable?
Writing in the New York Times, law professor Kris Kobach promises to rebut all the major objections to Arizona’s new anti-immigration law and proceeds to ignore all the major objections. Professor Kobach’s idea of a major objection is “It’s unfair to demand that aliens carry their documents with them”, whereas my idea of a major objection is “It’s idiotic, hateful and destructive to put obstacles in the way of productive activity.”
The number of “unauthorized aliens” in Arizona at any given moment is estimated as just under a half million—about the same as the number of Jews in New Jersey. Over half the text of the Arizona law is devoted to penalizing employers who hire these people. Now suppose for a moment that the New Jersey legislature were to pass a bill penalizing anyone who hires a Jew. Would Professor Kobach defend this law, as he does Arizona’s, by pointing out that it doesn’t require anyone to carry a driver’s license?
The anti-immigration hysterics keep warning us that foreigners want to come over here and exploit our welfare system. The insincerity of that stance is exposed whenever, as in Arizona, its proponents set out to prevent those very same foreigners from coming here and working.
On June 25, 2010, Professor Joseph Weiler, editor of the European Journal of International Law, will stand trial in a French criminal court for running a mildly negative book review on a journal-associated website.
The book in question is The Trial Proceedings of the International Criminal Court by the Israeli law professor Dr. Karin N. Calvo-Goller. According to the reviewer the main part of the book “simply restates the…relevant parts of the ICC Statute.” This rehashing, he adds, is particularly unproductive since a large part of the volume consists of a reprint of the Statute itself.
When screenwriter Daniel Turkewitz was working on a script about astronauts struggling to survive in crisis conditions, he enlisted a veteran astronaut as a consultant. That worked so well that when Turkewitz began his new project, a script about Maine seceding from the Union to join Canada, he decided to enlist an expert on the legal niceties of secession. In other words, he decided to enlist a Supreme Court Justice.
Eight out of nine justices (plus retired Justice Sandra Day O’Connor) ignored Turkewitz’s inquiry about what would happen if a secession case were to reach the Supreme Court. Rather astonishingly, however, Justice Scalia responded with the following letter, which Turkewitz’s brother Eric posted on his blog this week:
