Category Archive 'The Law'
22 Jun 2015

Tweet of the Day

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Hat tip to Walter Olson.

23 Apr 2015

It Is Happening Here

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Kevin Williamson notes how, from Texas to Wisconsin to the US Senate, democrats today are proving eager to manipulate the law to target political opponents.

Texas, as I argued in the March 23 edition of National Review, has a corruption problem—from its police to its universities. One of Texas’s acute corruption problems is the fact that the Travis County district attorney’s office, which prosecutes corruption cases, is absurdly, comically corrupt—by which I do not mean the “Hey can you get my dopey kid into UT law?” level of corruption that is commonplace in Texas, but Boss Hogg levels of corruption. You wouldn’t know it from the typically witless and servile reporting of the Austin American-Statesman, but the drunk-driving conviction of Travis County district attorney Rosemary Lehmberg is the least of that office’s problems—much more significant is the fact that is she recorded on camera threatening legal retaliation against the police who booked her. She is as explicit as can be about this: “You’re going to be in jail,” she said.

The same prosecutor is trying to put former governor Rick Perry in jail for having vetoed funding for her office. Why did he veto the funding? Because the corruption prosecutor is grossly corrupt and a convicted criminal to boot. She went to jail, for pity’s sake.

The Texas state house understandably has passed a bill that will curtail the Travis County district attorney’s special role in prosecuting ethics and corruption cases against elected and appointed officials. Instead, those cases will be investigated by the Texas Rangers. (Old punishment: jail. New punishment: Ranger roundhouse kick! Okay, not really, but that would be kind of awesome.) Naturally, Texas Democrats have sought to block that reform. And a handful of Republicans have, to their discredit, joined them, which is inexplicable.

Why do Democrats want to keep things in Austin? Because Democrats control Travis County, which is home to the state capitol and the University of Texas, and Democrats generally dominate jurisdictions where there are lots of government employees. (Shocking, right? It’s almost as if people do not cease to be self-interested profit-seekers when they go into government.) And they have long enjoyed using Travis County prosecutors as political weapons: Lehmberg’s office under Ronnie Earle was responsible for the risible and corrupt prosecution of Tom DeLay, which ultimately was laughed out of court, but not before ruining his political career and upending his life—which, of course, was the point. The issue is not successful prosecution; it’s successful persecution. If you want to really appreciate what Democrats with guns and badges at their disposal will do in furthering their political interests, you will not find a more terrifying story than David French’s recent account of the Gestapo tactics used by Democratic prosecutors in Wisconsin against Scott Walker and conservative activists. It is nearly impossible to believe that this sort of thing is going on in the United States of America in 2015, but it is. We aren’t talking about petty politics here—we’re talking about using battering rams to knock down people’s doors and sticking guns in their faces because they supported a ballot initiative displeasing to Democratic authorities.

Harry Reid—and every Democrat in the Senate—voted to repeal the First Amendment to render the Supreme Court powerless to protect Americans from this sort of abuse. Robert F. Kennedy Jr. wants to put Americans in prison for disagreeing with him about global warming—and many so-called progressives agree with him. Under the Obama administration, we have seen a weaponized IRS targeting conservative groups for persecution and a weaponized FBI leaning on conservative activists, followed up by a weaponized ATF.

And Democrats, individually and collectively, have supported and enabled every one of these gross abuses of power.

02 Apr 2015

Magna Carta

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22 Jul 2014

Halbig v. Burwell Will Free More Than 57 Million Americans From The ACA’s Individual & Employer Mandates

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Michael F. Cannon, writing in Forbes before today’s DC Circuit opinion, describes the significance of the court’s decision striking down Obamacare subsidies on federal exchanges.

Halbig is one of four lawsuits challenging the legality of the health-insurance subsidies the IRS is dispensing in the 36 states that did not establish a health-insurance Exchange under the Patient Protection and Affordable Care Act, or “ObamaCare,” and thus have Exchanges established by the federal government. Though the PPACA repeatedly states those subsidies are available only “through an Exchange established by the State,” and there are indications IRS officials knew they did not have the authority to issue subsidies through federal Exchanges, the IRS is dispensing billions of dollars of taxpayer subsidies through federal Exchanges anyway. The Halbig plaintiffs are employers and individuals from six federal-Exchange states who are being injured by the IRS’s actions because those illegal subsidies trigger taxes against them under the PPACA’s employer and individual mandates. The plaintiffs want relief from those illegal taxes, and the only way to get it is to ask federal courts to put a stop to the illegal subsidies. Recent media coverage of Halbig, driven by one-sided blog posts from the consultant group Avalere Health and the left-leaning Urban Institute and Robert Wood Johnson Foundation, has misrepresented the impact of a potential ruling for the plaintiffs by ignoring three crucial facts: (1) a victory for the Halbig plaintiffs would increase no one’s premiums, (2) if federal-Exchange enrollees lose subsidies, it is because those subsidies are, and always were, illegal, and (3) the winners under such a ruling would outnumber the losers by more than ten to one.

Avalere Health’s Elizabeth Carpenter blogs, “nearly 5 million Americans would receive an average premium increase of 76 percent if the courts ultimately rule that consumers in the federal exchange cannot receive premium subsidies.” In another brief post, Linda Blumberg, John Holahan, and Matthew Buettgens of the Urban Institute estimate “7.3 million people, or about 62 percent of the 11.8 million people expected to enroll in federally facilitated marketplaces by 2016, could lose out on $36.1 billion in subsidies.” These brief analyses are either misleading or outright false, because they fail to note three crucial facts.

First, a victory for the Halbig plaintiffs would not increase anyone’s premiums. What it would do is prevent the IRS from shifting the burden of those premiums from enrollees to taxpayers. Premiums for federal-Exchange enrollees would not rise, but those enrollees would face the full cost of their “ObamaCare” plans.

Critics will respond that, as dozens of economists who filed an amicus brief on behalf of the government have predicted, a Halbig ruling would also cause the full premium to rise by unleashing adverse selection. This claim is based on a fundamental misunderstanding of Halbig and the PPACA. If a lack of subsidies in federal Exchanges leads to adverse selection, Halbig is not the cause. The cause is Congress tying those subsidies to state-established Exchanges, and 36 states refusing to cooperate. Halbig will not and cannot cause adverse selection. It merely asks the courts to apply the law as Congress enacted it.

Second, Avalere Health, the Urban Institute, and media outlets that have repeated their estimates typically neglect to mention that a victory for the plaintiffs would mean the second-highest court in the land ruled the Obama administration had no authority to issue those subsidies or impose the resulting taxes in the first place – that those taxes and subsidies are, and always were, illegal. Regardless of one’s position on the PPACA, we should all be able to agree that the president should not be allowed to tax and spend without congressional authorization. That’s what’s at stake in Halbig. It is why the Halbig cases are far more important than “ObamaCare.”

The termination of those subsidies and the taxes they trigger takes on an entirely different flavor when we introduce that small detail. …

[Which] doesn’t change the fact that 5 million people have been deeply wronged, it does clarify who wronged them: not the Halbig plaintiffs or a few judges, but a president who induced 5 million low- and middle-income Americans to enroll in overly expensive health plans with the promise of subsidies he had no authority to offer, and that could vanish with single court ruling.

Third, these reports and the ensuing media coverage uniformly neglect to mention that a victory for the Halbig plaintiffs would free not only those plaintiffs but tens of millions of Americans from the PPACA’s individual and employer mandates. Indeed, Halbig would free from potential illegal taxation more than ten times as many people as lose an illegal subsidy.

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And Jonathan H. Adler just reported the ruling striking down those subsidies in the Washington Post.

This morning the U.S. Court of Appeals for the D.C. Circuit released its much awaited opinion in Halbig v. Burwell. In a 2-1 opinion, the Court held that the Internal Revenue Service regulation authorizing tax credits in federal exchanges was invalid. Judge Griffith, writing for the court, concluded, “the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.” In other words, the court reaffirmed the principle that the law is what Congress enacts — the text of the statute itself — and not the unexpressed intentions or hopes of legislators or a bill’s proponents.

15 Apr 2014

Rancher Bundy’s Standoff With the Feds

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John Hinderaker took the time (which most commentators have not) to look deeper into the equities of the recent confrontation between Nevada rancher Cliven Bundy and the Federal Bureau of Land Management.

First, it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. [86% — JDZ] Bundy is representing himself, of necessity: no lawyer could make that argument.

That being the case, why does Bundy deserve our sympathy? To begin with, his family has been ranching on the acres at issue since the late 19th century. They and other settlers were induced to come to Nevada in part by the federal government’s promise that they would be able to graze their cattle on adjacent government-owned land. For many years they did so, with no limitations or fees. The Bundy family was ranching in southern Nevada long before the BLM came into existence.

Over the last two or three decades, the Bureau has squeezed the ranchers in southern Nevada by limiting the acres on which their cattle can graze, reducing the number of cattle that can be on federal land, and charging grazing fees for the ever-diminishing privilege. The effect of these restrictions has been to drive the ranchers out of business. Formerly, there were dozens of ranches in the area where Bundy operates. Now, his ranch is the only one. When Bundy refused to pay grazing fees beginning in around 1993, he said something to the effect of, they are supposed to be charging me a fee for managing the land and all they are doing is trying to manage me out of business. Why should I pay them for that?

Read the whole thing.

A lot of commentators on the Right discovered that Mr. Bundy lost in federal court and was clearly defying the law, but those editorialists failed to notice that, in a manner not unprecedented in the history of the American West, in Mr. Bundy’s case, the law is in the hands of special interests and is being used to take away what other people own.

Nevada became a state in 1864. Why exactly is it, that 150 years later, the United States government is still sitting on 86% of all the land in Nevada? Why wasn’t the grazing land used by Mr. Bundy been sold to the Bundy family generations ago?

If the Bundy confrontation proves anything, it demonstrates just how past time it is for most federal lands to be privatized.

17 Nov 2013

Obamacare Insurance Policies Cancellation Fix: Not Easy to Understand For Ordinary Mortals

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Law Professor Jonathan H. Adler, who posts at Volokh, is just not as intelligent as Barack Obama. Consequently, he cannot understand how the president simply waving his hand at a press conference, and announcing that he does not intend to enforce his own federal law can practically serve as a solution which will preserve insurance policies cancelled as a result of the Obamacare law. You have to be as intelligent as Barack Obama to understand the operation of the dialectic in the interaction between these things.

Yesterday, the President announced a purported fix to the problem that, under the PPACA [aka Obamacare], insurance companies are not allowed to renew policies that fail to comply with PPACA requirements, even if consumers like their existing plans. …

According to the President’s announcement, insurance companies will be allowed to renew policies that were in force as of October 1, 2013 for one additional year, even if they fail to meet relevant PPACA requirements. What is the legal basis for this change? The Administration has not cited any. … According to various press reports, the Administration argues it may do this as a matter of enforcement discretion (much as it did with immigration). In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law (while simultaneously threatening to veto legislation that would authorize the step the President has decided to take).

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The President’s decision does not change relevant state laws either. So insurers will still need to obtain approval from state insurance commissioners. This typically requires submitting rates and plan specifications for approval. This can take some time, and is disruptive because most insurance companies have already set their offerings for the next year. It’s no wonder that some insurance commissioners have already indicated they have no plans to approve non-compliant plans.

Yet even if state commissioners approve the plans, they will still be illegal under federal law. … Given this fact, why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy. If there’s an answer to this, I haven’t seen it . … It’s almost as if the Administration has not thought this through.

16 Nov 2013

” I Have Seen the Future, and It Is Idiocy”

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Theodore Dalrymple reflects, in Taki’s magazine, on the modern state’s law enforcement priorities and their deeper meaning.

A couple of American filmmakers came to Paris to interview me—it always surprises me that anybody would take so much trouble to interview anybody, let alone me—and decided that the little park opposite my flat, with a pretty little bandstand, would be a good place to do so. They set up the camera, but a few seconds later, before they could ask me a single question, a municipal policeman arrived. They were not allowed to film here without a permit from the mairie of the arrondissement, he said. I explained that these were Americans, come all the way from Texas expressly to interview me. He, a very pleasant and polite man of African origin, phoned his chief to see whether an exception could be made. As I suspected, it could not.

I told the film crew that we should make no fuss; the man was only doing his job, silly as that job might be. As it happens there were several drunks in another part of the park making aggressive-sounding noises and breaking bottles, but them he did not approach, perhaps wisely, as they were several and he was only one. He thought he would have more luck with someone wearing a tweed jacket and corduroy trousers as I was. We found a café willing to accommodate us.

The contrast between the authorities’ alacrity on one hand in preventing innocent filming for a matter of a few minutes (the policeman said authorization was necessary because it might cause a disturbance, and, being kind, I refrained from laughing), and on the other their slow response to a nasty incident that might have ended in murder, was emblematic of the modern state’s capacity to get everything exactly the wrong way around, to ascribe importance to trivia and to ignore the important. There are, of course, many more employment opportunities in trivia, since there is much more that is trivial in the world than is important.

France is not unique in this respect, or even the worst example I know. In London I once parked outside a hotel where I proposed to stay. Parking was forbidden outside, but I stopped only to take my baggage inside. I received a parking ticket within sixty seconds, a miracle of efficiency (I genuinely admired it in a way), though it was perfectly obvious from my car’s open doors that I did not propose to stay long and was only taking my luggage into the hotel. But on another occasion when my wife telephoned the police to inform them that youths were committing arson in our front garden before her very eyes, they had no time to attend to it. A more senior officer, however, did find the time a quarter of an hour later to complain to my wife that she had wasted police time by complaining in the first place.

It often seems, then, as if modern state authorities live in a looking-glass world: What normal people regard as important is for them of no importance, while what they regard as of supreme importance normal people regard as of no importance. For them the respectable are suspect and the suspect respectable. A tweed jacket is a sign of menace, while a broken bottle is a sign of harmless intent.

One must not exaggerate the degree to which official idiocy impinges on our lives. The exaggeration of misery is one of the royal roads to political disaster. Still, I have seen the future, and it is idiocy.

Read the whole thing.

Hat tip to Bird Dog.

22 Oct 2013

Probate Judge Tells Ohio Man He’s Still Legally Dead

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The Courier (Findlay, Ohio):

Donald E. Miller Jr.’s future remains as murky as his past.

The Fostoria man attracted national and international attention this week after a Hancock County judge ruled that Miller is still legally dead, although Miller appeared and testified in court.

In 1994, Probate Judge Allan Davis ruled that Miller was legally dead, about eight years after Miller disappeared from his Arcadia home.

That decision can’t be undone, Davis said this week. Under Ohio law, a death ruling can only be changed within three years, Davis said.

Miller’s Social Security number and driver’s license have been canceled, Miller said.

Miller, 61, is stuck for now in legal limbo with few ways out.

However, a legally dead person could appeal the judge’s decision, said John Martin, professor of law at Ohio Northern University, Ada.

Legal aid services or an enterprising attorney would likely handle the case for free, Martin said.

“Just for the fun of it, somebody should take” the case, Martin said.

Ohio’s missing-person law is necessary to settle some estates and marriages, Martin said. But revising the law to allow a person to have a clean start after a certain period would resolve cases such as Miller’s, he said.

“Why they put ‘three years’ in there is a mystery to me,” Martin said.

Miller’s attorney, Francis Marley of Fostoria, told ABCNews.com that an appeal to a higher court will “probably not” occur.

“We may go another avenue as far as federal something, but we haven’t decided yet,” Marley said. “He’s obviously disappointed. Who wouldn’t be?”

Read the whole thing.

Hat tip to Walter Olson.

21 Jun 2013

The “Law-and-Order” Argument

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The Immigration debate has a tendency to turn red-blooded conservatives into censorious old ladies, who are shocked, shocked and indignant and offended that Hispanic immigrant laborers would have the temerity to violate THE LAW.

Sophisticated people realize that there are laws and there are laws. During first year of law school, the distinction is universally explained between Malum in se, actions, like murder and theft, which are genuinely wrong and violative of Natural Law, and Malum prohibitum, things, like overtime parking, which are illegal only because of some arbitrary regulatory enactment.

Entering the United States in order to improve one’s condition through honest work is obviously merely Malum prohibitum, the violation of a regulation, not something evil in and of itself.

As I remarked in a previous posting, a lot of freedom-loving Americans (and even conservatives) are notorious for their lack of respect for mere regulation. They had to repeal Prohibition because so many Americans ignored the law. The 55 mph speed limit is nearly universally flouted by American motorists. Americans commonly violate current drug laws in much the same way they used to violate liquor laws. What percentage of graduates of elite universities have never smoked pot? The number must be very very small.

It is just plain silly, and not especially manly or becoming, to go around striking sanctimonious poses and ranting about “enforcing the law.” The philosopher Robert Paul Wolff wrote a small monograph in 1970, titled In Defense of Anarchism, in which he demonstrated that, really, everyone has some point of independent moral judgement at which he will cease to obey the edicts of the State. TYPICAL EXAMPLE: The Gestapo Standartenführer demands that you reveal the hiding place of some Jews.

Sometimes “the law is an ass,” sometimes the law is immoral, sometimes the law is simply obtrusive and inconvenient, and we ignore it.

When our sclerotic, unprincipled, and embodying-no-useful-purposes contemporary immigration regulations provide no opportunity for desperate people to enter the country, and some, determined to support themselves and their families and to better their condition, ignore those regulations and enter anyway, my sympathies are with them. America was founded by, and for, the enterprising, the daring, and the rebellious. The country came into being as the result of a general inclination toward resistance to arbitrary regulation and authority.

I’ve read indignant editorial after indignant editorial complaining about illegal immigrants “jumping ahead in the line” and “not playing by the rules.” Frankly, I think those arguments represent nothing more than opportunistic poses. Why do we even need a line? People come here to work because we need their services and we hire them. The market is a self-correcting mechanism. If we do not need more low-skilled Hispanic laborers, jobs will not exist, and they won’t come here. We do not need a quota system and a line to keep someone from mowing my lawn. I do not care if Jose Jimenez violated some pointless federal regulations, which as far as I am concerned do not need to exist. If he stands up, sits down, turns around, says “Simon says,” and goes through all the rigmarole required, none of that benefits me or anybody else at all. What benefits me and the country generally is the availability of affordable labor. I don’t need some federal form filled in. I need yard work and some roof shingling done.

Real morality is on the side of the illegal immigrants. Spouting law-and-order-ism and demanding that everyone follow pointless and arbitrary rules is the function of busybodies and old ladies and Statists.

19 May 2013

The Vultures Are Beginning to Feast

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Clarice Feldman imagines the revelry as Washington’s trial lawyer establishment looks forward to the hefty retainer checks flowing from Obama Administration scandals.

After running an errand at the Courthouse, I decided to pop into the Barrister Bar and Bistro for a quick bite. The place was packed and Charlie, the maitre d’, shrugged his shoulders apologetically. “There’s a huge party here this afternoon, but I can seat you at the bar if you don’t mind.”

I didn’t mind and was happy to see that my favorite bartender, Joe, was at work,

I pulled out USA Today and read until he was free: “After February 2010, the IRS didn’t approve a single Tea Party tax-exempt application until spring 2012, although it approved dozens of comparable applications from liberal groups.” Some coincidence, I thought. Just after Citizens United, the President’s outrageous temper tantrum about it at the State of the Union address, his constant demonizing of his opponents, the tea party in particular, and demands by key Democrats including Senators Baucus, Franken, Schumer, Reid, and Levin that the applications for 501(c)(4) status by the president’s opponents be subject to harsh scrutiny.

“Place is jammed. I’ve never seen it so packed. What’s up?” I asked as Joe placed my vodka tonic in front of me. “Looks like every former U.S. Attorney in town is here.”

He pressed in closer so that he wouldn’t be overheard.

“Celebration of the scandals. They are about to make more money defending these clowns than they ever dreamed of. Second terms are always more lucrative for them than first, but this is the ultimate jackpot. Like winning the Powerball.”

The bar was mirrored so even with my back to the crowd I could see what was going on. In the center of the room at a round table sat one of the president’s biggest campaign bundlers, an extremely well garbed man — hand-tailored navy suit, lustrous silk tie, crisp shirt and glittering cufflinks — with a great haircut. He was seated with a group of well-sloshed men and women all of whom were drinking heartily.

Suddenly everyone stood up for the toast.

“Here’s to George,” began his colleague. “We asked why we should support Obama after that disastrous first term and he said, ‘Cast your crumbs upon the water and you’ll get fig newtons back.'”

“And he was right!” came a shout from the rear and a wild round of applause followed.

Aside from the circular table in the middle where George and his cronies sat, there were seven tables.

“What are the colored badges for?” I asked.

“They signify which scandal defendants they are representing so they can exchange useful procedural and related information without disclosing who they are representing or breaching client confidentiality. The orange tag means the attorney is representing someone in the Benghazi scandal.”

“I see seven — probably Petraeus, Clinton, Rice, Donilon, Brennan, Nuland, Rhodes. And the blue badge?” I asked, sipping the drink.

“IRS scandal,” George whispered, wiping the counter to appear more inconspicuous.

“Hmm,” I thought, “Shulman, Ingram, Miller, Lerner, and some others to be named at a later date. And the red badge?”

“Small table — must be Justice officials on the Associated Press scandal.”

Read the whole thing.

19 Jan 2013

Bilbo’s Contract

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A professional analyzes Mr. Baggins’ Burglary Contract in careful detail.

How many billing hours was that, again? Ouch!

29 Dec 2012

David Gregory and Taboo Object Control

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NBC News’ David Gregory apparently defied the (absurd) District of Columbia law forbidding anyone “to possess [&c.] any large capacity ammunition feeding device regardless of whether the device is attached to a firearm” by openly holding in his hand and displaying an empty 30-round magazine during a Meet the Press program in which he confronted NRA EVP Wayne LaPierre.

Anne Althouse elucidates the semiotics that drove NBC News to turn to open, on-the-air, defiant commission of a crime.

If possession of that high-capacity magazine was a crime, and the NBC folk knew it and had even contacted the police and thus even knew they’d created rock-hard evidence that they knew it, why did they go ahead and have Gregory flaunt that illegal possession on television? They had to have thought it was a devastatingly powerful prop. My first guess was that they imagined that viewers — some viewers, at least — would find the object itself scary. …

I’m not sure exactly why that jogged my thinking, but suddenly I understand the drama Gregory (and his people) were trying to enact. It’s a deep psychic memory of childhood. Gregory sought dominance over his interlocutor, NRA CEO Wayne LaPierre, and the idea — in the act of picking up that magazine and beginning an interrogation about it — was that Gregory would become (subliminally) a parent figure who would push LaPierre into the subordinate role of the little boy, the cowering child confronted with undeniable evidence of his wrongdoing. What’s THIS I found in your room?

The plan was for LaPierre to babble lamely, scrambling to explain it away, like the kid trying to concoct some cockamamie reason why that (whatever) got into his room. He’d look foolish and guilty, as Dad continues to hold up the item which the kid knows will be the defeat of every idea that flashes through his stupid, stupid brain.

The scenario didn’t play out as scripted. LaPierre is a stolid veteran of many a confrontational interview. He’s not going to let the interviewer get the upper hand that easily.

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Naturally, all this has inevitably provoked considerable discussion about whether Mr. Gregory should really be prosecuted and potentially convicted, sentenced, and treated as a criminal for an action obviously involving no real threat of any kind to anyone, for a purely technical violation of an obviously extravagantly far-reaching provision of a law aimed in intent at curbing authentic violent crime.

A lot of people have made good arguments and intelligent points. Even NRA President David Keene argued that Gregory’s “crime” should simply be overlooked.

Mark Steyn, however, decided to swim against the tide of general opinion, and argues that David Gregory ought to be held to the same irrational regulatory standards as everybody else.

This is, declared NYU professor Jay Rosen, “the dumbest media story of 2012.” Why? Because, as CNN’s Howard Kurtz breezily put it, everybody knows David Gregory wasn’t “planning to commit any crimes.”

So what? Neither are the overwhelming majority of his fellow high-capacity-magazine-owning Americans. Yet they’re expected to know, as they drive around visiting friends and family over Christmas, the various and contradictory gun laws in different jurisdictions. Ignorantia juris non excusat is one of the oldest concepts in civilized society: Ignorance of the law is no excuse. Back when there was a modest and proportionate number of laws, that was just about doable. But in today’s America there are laws against everything, and any one of us at any time is unknowingly in breach of dozens of them. And in this case NBC were informed by the D.C. police that it would be illegal to show the thing on TV, and they went ahead and did it anyway: You’ll never take me alive, copper! You’ll have to pry my high-capacity magazine from my cold dead fingers! When the D.C. SWAT team, the FBI, and the ATF take out NBC News and the whole building goes up in one almighty fireball, David Gregory will be the crazed loon up on the roof like Jimmy Cagney in White Heat: “Made it, Ma! Top of the world!” At last, some actual must-see TV on that lousy network.

But, even if we’re denied that pleasure, the “dumbest media story of 2012” is actually rather instructive. David Gregory intended to demonstrate what he regards as the absurdity of America’s lax gun laws. Instead, he’s demonstrating the ever greater absurdity of America’s non-lax laws. His investigation, prosecution, and a sentence of 20–30 years with eligibility for parole after ten (assuming Mothers Against High-Capacity Magazines don’t object) would teach a far more useful lesson than whatever he thought he was doing by waving that clip under LaPierre’s nose.

To Howard Kurtz & Co., it’s “obvious” that Gregory didn’t intend to commit a crime. But, in a land choked with laws, “obviousness” is one of the first casualties — and “obviously” innocent citizens have their “obviously” well-intentioned actions criminalized every minute of the day. Not far away from David Gregory, across the Virginia border, eleven-year-old Skylar Capo made the mistake of rescuing a woodpecker from the jaws of a cat and nursing him back to health for a couple of days. For her pains, a federal Fish & Wildlife gauleiter accompanied by state troopers descended on her house, charged her with illegal transportation of a protected species, issued her a $535 fine, and made her cry. Why is it so “obvious” that David Gregory deserves to be treated more leniently than a sixth grader? Because he’s got a TV show and she hasn’t?

He’s got a good argument. Read the whole thing.

20 Dec 2012

Robert Heron Bork (1927-2012)

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Walter Olson argues that Judge Bork lost the battle for his own Supreme Court Confirmation but, while the liberals weren’t noticing, has been winning the war of constitutional interpretation on behalf of fideism.

[T]he confirmation critique that makes it into every Bork obituary [is] Ted Kennedy’s blowhard caricature, intended for northern liberal consumption, of “Robert Bork’s America” as “a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution,” and so on.

Never in memory had a judicial nomination been fought in such language. Why?

As a constitutional law scholar, Bork had distinguished himself even among conservatives for his scathing critique of the Warren Court, which he accused essentially of having made up constitutional law as it went along. …

Within a few years, presidents of both parties were taking care to pick nominees with schmoozy as opposed to prickly personalities — and willing to submit to coaching on how to give off that oh-so-important empathetic vibe without actually committing to anything.

Ideologically predictable though some of these folks might be, they lacked the intellectual heft and daring paper trail of a Richard Epstein on the right, a Cass Sunstein on the left or a Richard Posner somewhere in between. …

But with regard to the Warren Court, it’s looking as if he’ll have the last laugh. Obama’s high court nominees are just as eager as George W. Bush’s to decry the practice of making up the constitution as one goes along, while “liberal originalism,” which takes seriously the insistence of critics like Bork that judges must adhere to what’s actually in the founding document, is making headway among scholars at places like Yale Law School.

Not such a bad legacy.

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David Frum also remembered the distinguished jurist as a man who believed in personal modesty and who exercised official responsibility with objectivity and restraint.

Pessimistic as he was, however, Robert Bork was in no way bitter or angry. “Mordant” is the word I think I want to describe his conversation. His bleak assessment of his fellow human creatures was based upon hard experience. He was used to hearing his ideas distorted, and his best actions distorted and vilified. Before his nomination to the Supreme Court, Bork was best known as the man who fired Watergate special prosecutor Archibald Cox. Bork’s two immediate superiors in the Department of Justice had resigned rather than execute the presidential order. Bork didn’t approve the order any more than the others did. But he also understood that the order was a legal one, and that somebody sooner or later was going to have to carry it out. This unpleasant duty had to be done, and since it had to be done, Bork’s sense of responsibility required him to do it.

The whole domain of law and judging was bounded, in Bork’s view, by a like sense of responsibility. Laywers and judges, as he saw it, were not knight-errant righters of wrong, not freelance agents of abstract justice, but fallible people no wiser than anyone else, entrusted only with certain defined powers to settle certain kinds of disputes. Those judges who claimed greater power received more applause than Robert Bork ever drew, but they did not deserve. Their actions were power-grabbing and their motives were arrogant. Bork made this case powerfully and vividly in the best book of his later years, Coercing Virtue.

13 Apr 2012

Dershowitz: Zimmerman Arrest Affidavit “Irresponsible and Unethical”

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