John & Belle Have A Blog

What?

I find it really hard to believe that this man wasn't convicted.

A jury acquitted a convicted sex offender Monday of raping two teenage girls who police say escaped after they were left to die in an underground bunker he had built....

Authorities accused Hinson of snatching the 17-year-old girls from their bedroom last year and dragging them one at a time to the underground room, raping them and binding them with duct tape. Prosecutors said Hinson expected the girls to die because the room, under a tool shed, had no air supply.

He was charged with kidnapping, sex crimes and assault with intent to kill....

Hinson testified that the girls had consensual sex with him. He said they made up the story so they would be able to take drugs from the bunker, which he used to store marijuana....

Hinson had faced a mandatory life sentence without parole under the state's two-strikes law because of a past conviction for raping a 12-year-old girl in 1991.

The underground room was about the length and width of a mid-size car, with a ceiling about 4 1/2 feet high. Hinson testified Sunday that he had built the room behind the trailer where he lived.

Defense attorney Rick Hoefer spent much of his nearly two-hour closing argument Sunday picking apart what he called inconsistencies in the teens' testimony, including how long it took them to call 911 after their alleged escape and whether they saw Hinson with a gun.

Here's one of the accusers, speaking out after the verdict:

She told News 10 Hinson kidnapped her from her bed, tied her with duct tape, and raped her and her friend in Hinson's underground bunker.

"No girls are going to get up on the stand and lie to say a man raped them and bound them and put them down a hole and raped them and did all this disgusting stuff to them and threatened them, said he'll kill family and people they loved the most. Nobody's going to get up there and lie about that! Nobody!" she said. 

One juror said it did not make sense the girl would not wake up when he came into her room to kidnap her and her friend. But the girl says that's not her fault: "I can't help it I'm a hard sleeper; I sleep hard."

She also said she didn't scream when he came to kidnap her, "because he had a gun. He carried it everywhere he went." 

One juror said he did not believe the story being tied with duct tape, because he said it didn't have bite marks on it.

"The only duct tape bit off my hands was the duct tape around my wrist. That was the only part bit off," said the girl.

I am compelled to a certain admiration for the defense attorney, but that aside, this just seems like twelve kinds of wrong. You can read about the accused man's testimony here. If the girls had just been making up a story to cover up their stealing pot from him, then why did he agree that he had had sex with them? (Besides that he needed to account for DNA evidence, I mean.) What the victim said in the article seemed to imply that the jurors weren't informed of his previous rape conviction, can that be right? I don't really know what the rules are on that. In any case, that is one guilty-looking motherf&$%)#.

Norriswatch!

"The Justice Riders realized that whatever they would do or become they would not tolerate evil, oppression, or injustice." (via Bookslut)

The book description is anaphorically unbuckled: "From the gold and silver mines of California and Nevada to the wide open plains of Texas, the American West was a wild frontier in the 1870s where dangerous outlaws pursued devilish dreams of fortune. But there were other men of simple faith, unsung Civil War heroes who adventured west to bring justice to places that had none. Those they called "The Justice Riders."

So they called the places 'the Justice Riders'?

No matter who wins, we lose

This WSJ editorial is a piece of work. Is it really necessary to be wrong about all of culture and capitalism, just so you can be wrong about filesharing? I love the casual shinkick against judicial activism followed directly by unusually crude advocacy of it. Please deliver a distributed drubbing in comments, if inclined. (Link via A&L Daily.)

I'm going to watch "Alien vs. Predator" instead. I have a scholarly interest, I assure. I taught "Alien" last semester and read quite a bit about the - ahem (cough, cough) - Quadrilogy. What do you think: how bad is AVP? Is it worse than the WSJ editorial, for example? How can one decide a thing like that?

UPDATE: Wow, that AVP thing made no more sense than the WSJ thing.

Randy Barnett r0x0rz

I think I speak for all of us here in the blogosphere when I say, "go Randy Barnett! Go Randy Barnett! Restore that lost constitution, dude! Let Californians have legal weed and let the federalist chips fall where they may! (I love the New Deal as much as anybody, but come on. "Interstate Commerce" wasn't founding father-speak for "any damn thing the Federal Gummint wants to do." I'm sure we can work around this. Innovative Blue state social programs and job creation will attract all the voters and then where will our low-tax Oklahoma friends be? Shit out of luck because no one wants to live in Oklahoma no matter how light the regulatory hand is. [Some Oklahomans not included.]

He Got Weed! He Got Weed!!

It must have seemed like a good idea at the time:

A Newark father's attempt to teach his daughter a lesson about alcohol backfired when the teen led cops to a stash of drugs and illegal weapons inside his house.

    The incident began at 2:45 a.m. Friday when the unnamed 16-year-old came home drunk and unruly.

Her dad, Kevin Winston, called police, but when they arrived, the girl told police she feared for herself and her four sisters, aged 3 through 15, because her father stored drugs and weapons there. Cops arrested Winston after finding four semiautomatic guns, including an AK-47, plus 617 vials of cocaine.

She probably feels kinda bad about it now, but hey--she was drunk! He should have listened to Chris Rock.

If I babble, who owns it?

Having linked to Ray's interesting post in my post below, I will now comment on its legal aspect. Apparently the book he read contains 'transcribed eavesdropping' on ordinary conversations, the fruits of which now allegedly belong to Cambridge UP. Ray jokes that he is henceforth releasing all his personal chat under Creative Commons. But does it actually make sense that someone can transcribe someone else's words - without their permission; or even with it, but without the additional step of getting them to sign over copyright - and then own those words? The issue doesn't come up much, I suppose. But what about interviews? If I give an interview and later want to quote myself at length, don't I still own my own words (although perhaps not the interviewer's questions)? This seems like the sort of issue that must have come up at some point.

If you build it

I see that Randy Barnett is a little annoyed at us. This is very understandable, as he has gone to the trouble of writing books, and we haven't gone to the trouble of so much as reading them. Sometimes a snark is a boojums, perhaps. So I went to the law library to check out Barnett's The Structure of Liberty. (Noticed NUS does not have a copy of his new book, Restoring the Lost Constitution. I'm official philosophy department library rep, so on my list of books to order it goes. Could do with a little more libertarianism around the place. Perhaps prof. Barnett will accept this proxy purchase as a token of our good will. We at John & Belle do like our Volokh Conspiracy with coffee every morning.)

Four Chances to Gain 10 Yards and You Turn Over the Ball

Also at the Volokh Conspiracy, a discussion of California's "Three Strikes and You're Out" laws. Eugene thinks that when critics of the law focus only on the third strike, which may be a minor property crime, and the disproportionate life sentence that results, they skew the debate, because the law was precisely intended to take into account previous crimes. I think the real shame is that the law takes its form from America's alleged national pastime, baseball, rather than its actual national pastime, professional football. Football is quicker, easier to understand, much more violent, and totally unknown outside the States. I think it's obviously our national sport, and should provide the basis for sound lawmaking. Plus, then we'd get to hear lawyers say things like, "Your Honor, my client would like to go for it on fourth down."

Keeping It Real, the Strom Thurmond Way

Frum follow-up post pending. In the meantime, don't miss this great Richard Posner anecdote in Brian Leiter's post on legal realism.

[Posner] recounted the story of his own confirmation hearing, at which Senator Thurmond asked him the obligatory question, "If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?" to which Posner - being more intellectually honest, and less cowardly, than most - replied, "Well, Senator, it's a bit more complicated than that," and then proceeded in to a lengthy explanation of the necessity of judicial law-making, the ambiguity of the kinds of cases that require appellate review, and so on.

When Posner a few weeks later got the transcripts of his confirmation hearing, the exchange appeared as follows:

"Thurmond: If confirmed to the bench, would you view it as your duty to apply the law rather than make the law?

Posner: Yes."

I should now say something wise - but brief - about legal realism. It is a true and important doctrine. The Curmudgeonly Clerk irks Leiter by designating it baby-stuff: "we do not need the assistance of law professors to perceive the obvious." This slight elides the vast distance between the question whether the doctrine is true - yes, yes, only mooncalves don't know; and how it is true - i.e. what extra-legal considerations weigh in judicial decision-making, to what extent, in what dynamical fashions, so on and so forth. It seems terribly obvious to me that there must be a whole host of non-obvious answers to a truly vast array of questions about how legal realism is true: surprising facts, non-obvious generalizations, shrewd insights and observations, nasty sausage-recipes. And crazy stories about crazy politicians. To deny the possibility of studying (and teaching) all this by brushing it off as 'obvious' seems to me a misguided reaction to what are probably regarded as sordid, regrettable truths.

I suppose the thought might be: if realism true, it will take care of itself - e.g. Republican and Democratic law students will go forth to bend the law to their private wills, in subtle and not so subtle ways. But that would not be a reason not to study the truth, and certainly not a reason to suppose it would be be trivially simple to study. (We all do lots of things on auto-pilot - breathing, for example. But how we do these things is often exceedingly interesting.)

It seems to me the position the Clerk advocates - a normative goal of maximal partisan dagger-sheathing, I take it - is consistent with robust (highly non-trivial) legal realism, even with robust teaching of robust legal realism. You could (hypothetically) have a legal culture in which judges were strongly and officially admonished to make it impossible for observers to discern their politics from a study of their decisions. So you don't try to confuse the poor things by telling them - or anyone - the noble lie that realism isn't true. You just tell them it is a judge's job to make it impossible for anyone to tell which party he or she belongs to. This is not a goal you could realistically attain. But a norm of conscious concealment is one at which you could realistically aim in a variety of ways (some of them quite artificial, even schizophrenic, but if that's what you want ...) If judges tended to be ashamed to be perceived as discernably partisan, because this made them look sloppy and unprofessional in the eyes of peers and colleagues, this would not result in 'pure, formal law'. What we would have would be eminently 'real' determining factors, i.e. lots of partisans taking assiduous care to step down hard on their own impulses. These would of course still leak out around the edges, and probably elsewhere, and whenever push came to shove. It might be a very odd sort of legal culture. I'm not sure what advantages it would have; but there would be fewer partisan daggers drawn, which I think would tend to be a good thing. There would be nothing unstable about this arrangement - not necessarily, anyway. (Think about the pride US military brass take in being above partisanship - at least until they retire and run for President. Not so easy for judges, by any means, but ... well, if you really don't want people to be able to tell whether you are a Democrat or a Republican, you can find a way to keep it under your robe to a far greater extent than is currently the case in our legal system.)

Of course it's quite difficult to imagine how to get to this funny legal world from where we are, even if we all decided we wanted to emigrate there. But it is important to see that descriptive legal realism is consistent with a tremendous variety of normative views, including (so far as I can discern) the Clerk's.

Perhaps there is some tendency to suppose that teaching or espousing legal realism exacerbates partisanship, by consciously drawing people's attention to the possibility of indulging in it. Then you get in some hideous feedback loop. So there is no reason for professors to encourage this undesirable dynamic by preaching it. But it would be just as easy to draw people's attention to the truth of realism, then sternly admonish them about their solemn duty to damp down expressions of partisanship to the extent that it proves possible. Judges could ber encouraged to pick some full-bodied, not obviously flagrantly partisan legal philosophy and really stick to it through thick and thin. Or they could arbitrarily tick from left to right like metronomes. Whatever. These may seem like silly suggestions. But it seems to me that the noble lie that legal realism isn't true - in fascinating, complex ways - is also quite silly. So there we are.

But I don't know about this stuff. I've never given it an hour's thought before this very night, so go ahead and tell me I'm wrong.

The Gay Marriage Thing

You know, I think I could teach an entire course on informal reasoning - with emphasis on avoiding fallacies - with nothing as a (cautionary) text except every editorial against gay marriage the NRO has ever published. What you need, for such a course, are simple, OBVIOUS - so that even a child can see them - examples of classic ways reason can betray itself in incontinently shameful fashion. Which brings us to Jonah Goldberg's silly thing. Oh, Andrew Sullivan has already laid into it. As has Ted Barlow.

There seems to be something about gay marriage that brings out the fallacy in folks. Even Stanley Kurtz, usually the irenic voice of reason over NRO way. I mean: I usually disagree with whatever the NRO crew are arguing about whatever, but they aren't dummies; its ONLY when they get onto gay marriage that I am really struck by the fact that their writings ought to go into the "Big Book of Thought" chapter on "How Not To Do It".

Let me forego the traditional methods of the fiscatore and proceed positively, geometrically even:

Either marriage is, in its nature/justification:
1) A religious institution.
2) A civil/secular institution.
3) A mix of religious and civil/secular. (Let this be a slider, as it were, running from 99% religious to 99% civil/secular. That ought to cover things to a nicety.)

Obvious 3) is the right answer. But let's be thorough about this.

If 1), then the question of who can marry whom ought to be left to individual churchs, denominations, religious leaders, private consciences of believers, so forth. There is a thing called religious freedom, after all. And there is such a thing as the establishment clause in the Constitution. (Of course there are limits and complications. But since there is no direct harm to others, and since two men/women getting 'married' bears a strong family resemblance to a man and a woman getting married ... well.) CONCLUSION: if marriage is a religious matter, the government ought to be quite generous in allowing varieties of union, if religious people want them, as it is in allowing varieties of ritual observance and so forth.

If 2), you check your inspired religious texts at the door, obviously. If you then tot up all the advantages to government/society of santioning and otherwise providing minimal legal support for the existence of these things called families - well, you will find that a preponderance apply to same-sex unions. Yes, no children. But adoption. And sterile people/old people can marry as it stands. CONCLUSION: it would be more arbitrary to deny than to allow, from a purely civil/secular standpoint. And, and federalism.

But the answer is 3). Marriage is an uncertain mix of religion and civil/secular. But since 1) and 2) independently support gay marriage, how can 1) and 2) together go against? I mean, without commiting lots of fallacies so as to rig that result

Too simple, obviously. For instance, I just legalized polygamy. But, you know ... I don't like polygamy, but I'm OK with that result.