Tag Archives: law

Why Adnan should have pleaded guilty.

Like many others, I followed the podcast Serial—at least for a time. While I don’t have anything particularly valuable or interesting to say on it—opinion pieces have abounded, and it always seemed to me that it was pretty ho-hum and obvious Adnan Syed was likely guilty—fortunately law professor Janeanne Murray does:

Had Mr. Syed, then 18, plea-bargained in what his prosecutor recently described as a “run-of-the-mill domestic violence murder,” he might have been able to earn his freedom by age 40.

It is noteworthy that a court is currently considering whether Mr. Syed’s counsel gave him substandard legal assistance when she failed to explore the option of a guilty plea. Mr. Syed claims that he twice asked his lawyer to seek an offer from the prosecutor, but she told him none was forthcoming. The prosecutor states that she made no such request. Mr. Syed’s attorney died in 2004, three years after being disbarred, before she could address this claim.

Murray’s argument is for a more transparent and reformed system of plea-bargaining. While no expert in criminal law, I’m not sure I’m convinced by all of her arguments, but they certainly bring up some interesting issues—especially the proposal by Judge Rakoff.

A Connecticut “The Children Act.”

Proving perhaps that Ian McEwan was on to something, a recent case out of Connecticut seems to be playing out the drama of McEwan’s novel The Children Act:

The girl, identified in court papers as Cassandra C., learned that she had Hodgkin’s lymphoma in September. Ever since, she and her mother have been entangled in a legal battle with the state of Connecticut over whether Cassandra, who is still a minor, can refuse the chemotherapy that doctors say is likely to save her life. Without it, the girl’s doctors say, she will die.

I wonder if the Connecticut judge struggled with the decision as much as the judge in the novel did. Certainly, in The Children Act, the kid refusing cancer treatment had a much more compelling argument, citing his strong religious objections—a Jehovah’s Witness, he didn’t want a blood transfusion—while the teen and her mother here don’t seem to have any particularly good reason to refuse chemotherapy in this situation (but more about their reasoning might not have made it into the story) other than the general complaints about individual freedom.

On a related note, you can read my review of The Children Act here.

Black and Bluebook.

Beyond the expected brilliant insight into being an administrator of justice, Judge Richard Posner’s latest book, Reflections on Judging, contains some strong opinions on that usually most uncontroversial of topics, citations:

Posner appears to believe that following the Bluebook is about as bad as rearranging deck chairs on the Titanic — and by reverse order of manufacture, no less. He casts the Bluebook as a neurotic reaction to external complexity; if you cannot control what is important, you make important what you can control.

How have I not read this yet? I need to set aside some time to read Garner and Scalia’s Reading Law and this volume back-to-back.

Posner, Kenji Yoshino concludes, is the “tenth justice”:

By dint of relentless merit, these individuals earn legal authority akin to that wielded by the Nine. In Richard A. Posner, our generation has its Learned Hand, its Henry Friendly. In complex times, we can take comfort in the simple fact of his existence.

Scalia and Hercules and the Umpire.

Regardless of whether you love him, hate him, or are pleasantly amused by him (I’ll leave you guessing as to which one I am) New York‘s interview with Justice Antonin Scalia is a must-read. For a legal nerd like me, the most interesting part is Scalia’s claiming to “repudiate” that he is a “faint-hearted” originalist (this being his own description that he cannot seem to live down).

Also, this was particular interesting:

The one provision [in the Constitution] that I would amend is the amendment provision. And that was not originally a flaw. But the country has changed so much. With the divergence in size between California and Rhode Island—I figured it out once, I think if you picked the smallest number necessary for a majority in the least populous states, something like less than 2 percent of the population can prevent a constitutional amendment.

On a semi-related (i.e., why nothing ever happens) note, Judge Richard Kopf, one of the local U.S. District Court judges where I live, has made headlines also for his outside-the-courtroom opinions, particularly telling Congress to “go to hell.” But his blog, Hercules and the Umpire, is always good reading—regardless of any shutdown smackdowns.

Ronald Dworkin.

In 2008 I attended a lecture of the Ronald Dworkin’s as he came to campus to speak at the E.N. Thompson Forum. The topic: America and Israel. Dworkin delivered a forceful opinion, which would probably have prevented him from becoming Secretary of Defense, if he’d ever been a politician (and if the Chuck Hagel confirmation hearings were any indication). I sat in the front row, nearly by accident. Already in awe of his gigantic reputation, I walked out the door realizing I’d underestimated him.

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Aaron Swartz and Criminal Law.

Tim Wu, on the death of Aaron Swartz:

It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man. The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm.

I’m not sure if I agree with every word of Wu’s, but his broad argument—and especially the point I quoted above—is spot on. As a fellow lawyer, I appreciate his analysis of the legal issues.

Update 1/20/13: Orin Kerr considers the question of whether the prosecution was warranted in the Swartz case. He makes some (characteristically) good points. (Kudos to Kevin for the reference.)

Some extraordinarily brief thoughts on the SCOTUS ACA decision.

By now, everyone is aware of the court’s decision in National Federal of Independent Business v. Sibelius, otherwise known as the Affordable Care Act constitutional challenge. I’m no legal scholar—the best reaction and commentary can be found at the SCOTUSBlog and The Volokh Conspiracy, in my opinion—but I did get a chance to read the Constitutional portions of the case’s opinion, which I ultimately found to be persuasive (at least to the extent that the Court had no choice but to uphold the mandate as a constitutionally-exercised power under the Taxing Clause).

I have to share a small anecdote, to give some due credit: During the beginning of the suit, I spoke with my former Constitutional Law professor, Eric Berger (who was quoted in a recent story about the outcome). Professor Berger, I must say, called this from the beginning. Of course it’s constitutional, he said to me, it’s a tax, and Congress can tax nearly without limits under the Constitution. In essence, the Commerce Clause argument, which was the crux of the states’ case on this issue (and which it should be noted Roberts and four other justices adopted, wholesale), did not end up matter. Ultimately, what is most impressive about Roberts’ opinion—besides his easy and readable style—is that it is obvious his politics push him the other direction. Finally, a justice who seems to be finding a case that does not conveniently comport with his/her politics. (Yes, there are many decisions they make as such, but usually not on this scale.) Personally, I probably lean toward the argument that the ACA was still Constitutional under the Commerce Clause, but I can understand why the Court might have found otherwise.

You can read the opinion here.