Archive for the ‘law’ Category

Law enforcement agency conceals Trayvon Martin criminal records

July 14, 2013

Sanford Police Department publicly stated, after Martin’s death on February 26, 2012, that the youngster had no criminal record whatsoever; that he was a good kid, a mild mannered kid. This was a flat-out lie, albeit one swallowed eagerly by a media desperate to find yet another white on black murder.

What really happened was that Martin had the singular good affirmative action fortune to attend school in the Miami-Dade School District, the fourth largest district in the country, and one of a very few that has its own police department.As part of its mission – egged on by President Obama and leading black activists – M-DSPD introduced a policy of diverting offending students,especially black males, from the criminal justice system.

To this end they suspended black male criminals for varying periods from school, while falsely registering their crimes as school infringements. Trayvon Martin was suspended from school in this manner on two occasions. On the first occasion, he was apprehended with a box of burglary tools in his possession together a large collection of stolen women’s jewels. On the second occasion, he was apprehended with marijuana and drug equipment in his possession.

If this information had been presented in court, during the Zimmerman trial, it would have imposed an entirely different perspective on the criminal background of Trayvon Martin. However the six white women jury was never granted the respect of accessing that information.

So all credit to the jury for seeing through the lies of the black activists howling for Zimmerman’s conviction. Sadly, the story is yet far from over. Media pressure is building across the country to ignore double-jeopardy protection for acquitted defendants, to use civil rights litigation to place Zimmerman on trial again, no doubt on this occasion with an all-black jury selected by Al Sharpton.

Put your trust in Barack Obama and Erich Schmidt?

June 11, 2013

President Obama and Google CEO, Erich Schmidt, potentially can access almost every email message transmitted across the United States and well beyond. Barack Obama is a left-leaning Democrat. Erich Schmidt, in 2012, maxed out his political contributions in support of Barack Obama. So he also must be presumed to be a left-leaning Democrat (or a wealth-seeking hypocrite, take your pick).

So do you trust Obama/Schmidt to refrain from utilizing this available information for left-wing political purposes? Do you think that they might do so, if such data were likely to swing votes in favor of the Democratic Party? Do bears defecate in the woods?

We know for sure that President Obama did not come clean with respect to the data mining that his administration has established, under the guise of monitoring terrorism. In itself, this demonstrates utter contempt for the people, who have hired him as their lackey to represent their interests. We know that Erich Schmidt did not voluntarily disclose the extent of Google’s monitoring of internet activity, even though Google supposedly is in a contractual relationship with its clients.So basically, they already have reputations somewhat inferior to second-hand car salesmen.

How comfortable are you when dealing with a second-hand salesman at some backstreet big city garage? Would you leave your wallet or your handbag on the table when visiting the washroom in such an establishment?

Bravo, Edward Snowden for whistle-blowing on Obama! Bravo, Putin’s Russia, for offering Edward Snowden political asylum as he runs for his life, hotly pursued by vengeance-seeking U.S. snoops.

Remember Jason Bourne, anyone?

Amanda Knox and the evolution of transnational law

March 28, 2013

Transnational law – law applied by the domestic legal system of one nation against citizens of another nation – is distinct from international law. International law is uniform and is often applied by international bodies such as the International Criminal Court. International law is not generally applicable to domestic crimes committed by individual citizens of one nation against those of another. Transnational law is not uniform, and evolves on a case by case basis.

Amanda Knox is the former American exchange student convicted by an Italian trial court in 2009 of sexually abusing and then of murdering her British room-mate, Meredith Kercher. That conviction was overturned on appeal in 2011 and Ms.Knox returned from an Italian prison to freedom in the United States.

The factors behind the initial conviction included an admission by Ms. Knox that she was present at the crime scene in the Italian town of Perugia, plus her false accusation that a bartender had slit Ms Kercher’s throat. The case against her included a questionable alibi and evidence of her DNA on the alleged murder weapon.

The appeals court threw out the DNA evidence for technical forensic reasons and acquitted Ms. Knox of the murder charge in 2011. On Tuesday March 26, 2013, Italy’s highest court reversed that acquittal, requiring the case to be reheard by a new appeals court, which can either affirm the conviction or order an acquittal. If the conviction is ultimately affirmed, the Italian government can petition the United States to extradite Ms. Knox to Italy to complete serving the 26-year prison term to which she was sentenced in 2009. Ms Knox almost certainly would challenge such an extradition request on the ground that she has already been acquitted by an appellate court, and that any subsequent conviction would constitute double jeopardy.

And that is where transnational law becomes very hazy. Italian and American law differ sharply and yet both will become applicable in such a transnational case. America’s extradition treaty with Italy prohibits the U.S. from extraditing someone who has been ‘acquitted’, which under American law usually means acquitted by a jury at a trial. But Ms. Knox was convicted at trial, by judges not by a jury, and acquitted by an appellate court.. So it awaits legal determination whether her circumstance would constitute double jeopardy under American law. The uncertainty arises because U.S. appellate courts do not retry cases and render acquittals. They judge whether the lower court made mistakes of law, not mistakes concerning the facts.

Under Italian law, an appellate acquittal does not constitute double jeopardy since it is not a final judgment. It is subject to further appeal, which has now resulted in a reversal of the original acquittal. So the Italian government would experience no legal constraint in requesting extradition.

Since possession is nine-tenths of the law, the U.S. government would have the upper hand. But a refusal to extradite would have far-reaching consequences, not least for U.S. criminals residing overseas.

Hat Tip: Alan Dershowitz, ‘Amanda Knox – Tabloid Sensation, Global Legal Bellwether’, The Wall Street Journal, March 28, 2013

Charles Rowley to Pope Francis I: stick your Falkland’s proposal where the sun never shines

March 15, 2013

Pope Francis I, who hails from Buenos Aires and who, some thirty years ago, cozied-up to the Junta that ran Argentina until Margaret Thatcher thrashed them in the South Atlantic, now claims to have had a Revelation from God to the effect that The Malvinas belong to Argentina and should be so returned.

David Cameron, the British Prime Minister, who has no time for the descendants of Juan and Eva Peron, or indeed any of their neo-Nazi Vatican sympathizers, has politely reminded the Pontiff that 98.8 per cent of the Falkland Islanders recently voted to remain within the United Kingdom. This may not amount to a Divine Revelation, but it serves its purpose in the Vale of Tears reflective of the real world.

My response to the Pope’s Revelation runs more along the lines of Emperor Napoleon Bonaparte who famously responded to Papal threats with the dismissive question: ‘How many divisions has the Pope?” Surely God has advised Pope Francis to the effect that Britain still has plenty of divisions and numerous aircraft carrier weaponry once again to see off any attack by a banana republic well-advanced on the economic Road to Hell.

The mere threat of Ghurka infantry attacks motivated Argentian occupiers of Port Stanley to throw down their arms in order to protect their cojones the last time that Latin adventurism was confronted by Anglo-Saxon resistance. Somehow, God did not intervene on behalf of His beloved Malvinas, as he did not intervene in favor of Catholic Spain in Philip’s disastrous Armada attack on England in 1588.

God no doubt will remind his Representative on Earth that Francis Drake quietly awaits the next maladventure from Spain and its Latin descendants:

“Drake he was a Devon man, an’ ruled the Devon seas,
(Capten, art tha sleepin’ there below?).
Rovin’ tho’ his death fell, he went wi’ heart at ease,
An’ dreamin’ arl the time o’ Plymouth Hoe,
‘Take my drum to England, hang et by the shore,
Strike et when your powder’s runnin’ low;
If the Dons sight Devon, I’ll quit the port o’ Heaven,
An’ drum them up the Channel as we drummed them long ago.

Drake he’s in his hammock till the great Armadas come,
(Capten art tha sleepin’ there below?),
Slung atween the round shot, listenin’ for the drum,
An’ dreamin’ arl the time o’ Plymouth Hoe.
Call him on the deep sea, call him up the Sound,
Call him when ye sail to meet the foe;
Where the old trade’s plyin’ an’ the old flag flyin’.
They shall find him ware an’ wakin’ as they found him long ago.”
Henry Newbolt, ‘Drake’s Drum.

Litigate against university presidents to enforce first amendment rights

February 17, 2013

University and college campuses across the United States massively infringe the first amendment rights of their teachers and their students, typically in order to enforce politically correct language. Such interventions constitute violations of open scholarship and a contempt for any notion of individual liberty.

Presidents of public universities, until recently, have protected themselves when challenged in the courts by faculty or students whose first amendment rights have been so violated, by hiding behind the legal principle of qualified immunity. Qualified immunity is a legal principle that shields state employees from personal liability for constitutional violations while carrying out their job duties. In essence, this principle requires taxpayers to cover any adverse legal consequences of constitutional violations by university presidents or, indeed by any of their agents.

A recent court judgment, blessedly may have pierced, that shield and located the Achilles heels of those demi-gods who throw their weight about on college campuses. Trojans may now rejoice once again in their fight against the armies of Agamemnon.

In 2007, President Ronald Zaccari expelled student Hayden Barnes from Valdosta State University in the State of Georgia. Zaccari was responding to a sequence of flyers posted on campus by Barnes challenging Zaccari’s plan to construct two new parking garages on campus. One such flyer pointed out that the estimated $30 million cost of the garages would provide 2,950 full scholarships for students of the university.

Barnes’s real ‘crime’, however, was his reference to the construction project as a ‘memorial’ parking garage, a joke on the president’s reach for immortality by naming the garage project for himself. President Zaccari, alleging that the use of the word ‘memorial’ constituted a threat on his life, and ignoring objections by his own staff and statements from several psychiatrists to the effect that Mr. Barnes was a known advocate of non-violence, expelled this ‘troublesome student’.

Mr. Barnes filed suit in 2008, enlisting the help of First Amendment attorney, Robert Corn-Revere. In February 2013, a federal jury found against former president, Zaccari, and awarded compensatory damages of $50,000. Zaccari may additionally be held liable for all of Mr. Barnes extensive legal costs. The remaining question, for the court to determine, is whether Zaccari can now protect himself via qualified immunity, thereby diverting the cost of his misbehavior to the pocketbooks of Georgia taxpayers.

There is a real opportunity in this case to pierce this protection. Qualified immunity does not hold when a state official is found to have abused his legal authority and done something he either knew, or should have known, violated clearly established constitutional rights. One would think that the case is clear with respect to President Zaccari’s self-seeking intervention.

The case constitutes an enormously important potential break-through for free speech across college campuses. Legions of state employees will be placed in financial jeopardy should Zacarri’s defense be broken. Since the early 1980’s campuses across the country have maintained dramatic speech restrictions, including the imposition of minute ‘free-speech zones’ on college campuses. In some instances, colleges prohibit the use of words by their professors that might be read to pass judgment on the relative performance of their students. How such professors manage to grade, other than, like Harvard, by denoting 95 per cent of their students as passing summa cum laude, is beyond understanding.

Speech restrictions are challenged only rarely by students or professors – for reasons that are self-evident – but litigation almost always succeeds when it occurs. An obvious solution now exists to roll back speech restrictions en masse. By holding university administrators financially responsible for their violations of free speech, they will confront the ultimate test: having to put their pocket-books directly in support of their personal prejudices. Few will make that choice. For the prejudices of university administrators are rarely more than skin-deep. And the depth of their personal pocket-books is the only reason – other than incompetence in scholarship – why they choose administrative careers on college campuses.

Sue and damn the administrators, should be the motto of any free-speech loving member of any college community across the United States.

Hat Tip: Greg Lukianoff, ‘Campus Clampdowns on Free Speech Flunk Their Legal Tests’, The Wall Street Journal, February 16, 2013

The controversial jurisprudence of Ronald Dworkin

February 16, 2013

Ronald Dworkin is revered by many legal scholars and denigrated by many others, primarily because of his left-of-center political philosophy. Two examples from prominent critics identify the nature of this divide:

“Judge Richard A. Posner, who sits on the federal appeals court in Chicago, wrote in a 2001 study of public intellectuals that Professor Dworkin’s popular writings were slippery, partisan and predictable. ‘Dworkin’s dominant bent as a public intellectual is to polemicize in favor of of a standard menu of left-liberal policies.'” Adam Liptek, ‘Ronald Dworkin, Scholar of the Law, Is Dead at 81, New York Times, February 14, 2013

“His critics said that Professor Dworkin’s approach was a smoke screen. Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” Robert H. Bork, the onetime Supreme Court nominee wrote in 1997 in ‘The Tempting of America’. ibid.,

No doubt such sophistry was inevitable, given Ronald Dworkin’s education at Harvard and Oxford, two of the most left-leaning repositories of Anglo-Saxon jurisprudence in the Western world. However, the polemics must not be allowed to detract from the high quality of Ronald Dworkin’s scholarship.

Within the lefr-leaning establishment, especially that located at Harvard and Yale, Ronald Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of the law, against Marxist-led proponents of critical legal studies – such as Harvard’s Duncan Kennedy – who attepted to tear down the common law as a class-based instrument of false consciousness.

Dworkin’s arguments on First Amendment values played an influential role in preventing the anti-speech feminism of Catharine McKinnon from dominating the American progressive movement. Dworkin warned appropriately against the temptation – bpth from the left and from the right – to abdicate questions of jurisprudence to crude majoritarianism (a temptation that Barack Obama curently seeks to exploit). Dworkin consistently stressed that the law is not simply an extension of politics by another means. Hence the title of his book, ‘Law’s Empire’.

Whewre Dworkin comes something of a cropper, in my judgment, is in his treatment of the complex interconnection between liberty and rights. In this area, Dworkin never completely understood – or less charitably chose publicly not to acknowledge – the clear distinction between negative and positive freedom outlined by his brilliant Oxford colleague, Sir Isaiah Berlin.

In a nutshell, Berlin promoted the concwpt of negative freedom – whereby any individual should be protected against coercion by any other individual or organization of individuals – over the concewpt of positive freedom – freedom from poverty, freedom from disease, etc. – arguing that pursuit of such latter freedoms invariably ends up in coercing some individuals by others.

In essence, negative freedom protects the inalienable right of any individual to his life and to his liberty and the imprescriptible right of any individual to his property, be it human or physical in nature.

Drorkin would have none of that. Most particularly, he had no time for economic freedoms, arguing instead that a just society would not allow individuals to benefit from the arbitrary luck of such natural talents as intelligence and talent, or the advantage of some chance acquisition. Such endowments are morally arbitrary and ought not to affect the distribution of resources in society.

Dworkin’s theory of inequality, in this sense, can be defined as luck-egalitarianism. In my judgment, anyone crazy enough to enforce such a jurisprudence would impose economic retardation and extensive coercion upon the people. Fortunately for those of us who, by good fortune, inherited Anglo-Saxon jurisprudence, Ronald Dworkin did not seriously attempt to force this view upon his fellow-men.

Indeed, Ronald Dworkin did not even impose this jurisprudence upon himself. He took full advantage of his privileged education at Harvard and Oxford further to hone God-given talents, and to live justifiably well on the good fortune showered upon him by a beneficient nature. And by so doing, he delighted us all with his erudition and high-quality scholarship.

Ronald Dworkin (1931-2013) R.I.P.

February 15, 2013

Ronald Dworkin was one of the great legal philosophers and constitutional lawyers of the twentieth century, a brilliant debater, unsurpassed in rhetoric, and an influential left-wing ideologue, who disguised his ideology behind superb penmanship. Fundamentally, I disagree with his underlying messages. But I understand that they must be refuted with extreme care and diligence. He will be greatly missed, both by his supporters, and by his detractors.

Ronald Dworkin was born in Providence, Rhode Island. After graduating from Harvard, he attended Magdalen College, Oxford as a Rhodes Scholar. He obtained an LL.B from Oxford and then returned to Harvard for his J.D. Thereafter, he resided both in England and in the United States, keeping one foot on each country’s legal system.

I met Ronald Dworkin only once, in 1974, when he attended one of my Social Science Research Council seminars designed to open up the emerging law and economics discipline to British economists and legal scholars. The conference was held at University College, Oxford, where Dworkin had succeeded H.L.A. Hart as Professor of Jurisprudence. I had invited Richard Posner and Willam Landes, the world’s two leading law and economics scholars from the Chicago Law School to educate the Old World in this new discipline. Ronald Dworkin attended just one session, to take on Richard Posner head-to-head on the normative proposition that the common law should seek to maximize wealth in its court judgments.

This was a battle between giants. Although Ronald Dworkin clearly won on points against the young Richard Posner, he surely lost on points to Bill Landes who utilized his superb mastery of economics to counter the rhetorical genius of his opponent. But it was a tough sled even for one of the sharpest and most subtle minds on the Chicago campus. All conference attendees were surely winners from this dazzling interchange.

Following the session, the debate raged on late into the night, in the University College bar. Just as well that Oxford University takes ultimate pride in keeping its cellars well-stocked. I can confirm from first experience the words of Thomas Nagel to the effect that ‘Dworkin is probably the least ascetic person I know, and one of the most worldly.’ Late at night in that bar, he was not served well by that predilection. The truly ascetic Richard Posner coolly demolished his opponent with an intellect unclouded by the fog of alcohol! However, as Ronald Dworkin may well have thought: ‘Tonight I am drunk, and you are sober. But tomorrow I shall be sober and tonight’s loss will be quickly reversed.As it would be in subsequent contests between these two great legal scholars.

I shall write critically on Ronald Dworkin’s key contributions in tomorrow’s column.

Why modern Robin Hood outlaws should be prosecuted

January 17, 2013

Many movies have been made in praise of Robin Hood and his Merry Anglo-Saxon outlaws who raided the coffers of rich Norman barons and knights in order to dispense their loot to down-trodden fellow-Anglo-Saxons during the absence, leading Crusades, of King Richard I, when his evil brother, Prince John, ruled England with a heavy hand.

Now that period of history was one of absolute dictatorship and our instincts naturally – and most probably justly – lie on the side of the severely oppressed. After all, William the Conqueror’s Normans were foreign invaders, who had seized Anglo-Saxon wealth at the point of the sword (and arrow). Rough justice requires an eye for an eye and a tooth for a tooth.

Aaron Swartz, who died by his own hand earlier this week, represents a very different kind of outlaw, even if much of the media is reporting his thefts in terms reminiscent of those episodes in Sherwood Forest. For Aaron Swartz was stealing from the rich to give to the poor within the environment of modern democracies operating under the rule of law.

In so doing, Swartz was eroding property rights. And property rights are the fulcrum of economic progress within the capitalist sector of any economy. Without clearly articulated and protected property rights, no modern economy can function. Contracts become impracticable, and a barter economy, in the absence of property rights, descends into a state of nature that we describe as a Hobbesian jungle.

In essence, if the Aaron Swartz’s of this world are allowed to prosper and multiply, they will take the advanced economies back into the Middle Ages of King Richard I and Prince John. I assure you that that is not a pleasant environment in which to fight for survival. It is not a world in which you would choose to live.

Aaron Swartz faced a lengthy jail sentence – as much as 30 years – for deploying computer hacking skills to download illegally millions of academic papers from an electronic library. Five years ago, Swartz had elected to become an outlaw by signing a guerrilla open access manifesto. He complained that the ‘world’s entire scientific and cultural heritage’ was in the process of ‘being digitalised and locked up’ by a handful of private corporations. He advised computer hackers to ‘take information, wherever it is stored, make our copies and share them with the world’.

Well, that is communism well beyond the vision of any Marx, Lenin or Stalin. When information that is costly to produce and process is distributed without charge to anyone who wishes to gain access, then assuredly such information will no longer be produced and processed. That is the nature of any market system.

Should governments then take over the role of markets in the production and dissemination of information, history tells us two things: (1) market-relevant new information will fail to appear; and (2) government-information will be produced and disseminated in a manner designed to destroy individual liberty and to promote tyranny.

So we should not judge Aaron Swartz as a Robin Hood attempting to ease the burdens of tyranny. Rather we should judge him as a promoter of communism, attempting to take down democracy and capitalism, and to replace them by absolutist government. For that crime, 30 years is a modest penalty. The gallows might be viewed as more appropriate.

In any event, Aaron Swartz delivered himself into judgment without any cost to society. And that decision ironically conforms with his personal philosophy. Aaron Swartz surely was not a hypocrite.

Hat Tip: John Gapper, ‘Aaron Swartz suffered from an illusion over research’, Financial Times, January 17, 2013

A.V. Dicey on Lord Leveson’s proposed repression of freedom of expression

December 10, 2012

“The present position of the English press is marked by two features.

First, ‘the liberty of the press’, says Lord Mansfield, ‘consists in printing without any previous license, subject to the consequences of law.’ Lord Ellensborough says:

‘The law of England is a law of liberty, and consistently with this liberty we have not what is called an imprimateur; there is no such preliminary license necessary; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it is illegal.’

These dicta show us at once that the so-called liberty of the press is a mere application of the general principle, that no man is punishable except for a distinct  breach of the law.  This principle is radically inconsistent with any scheme of license or censorship by which a man is hindered from writing or printing anything which he thinks fit, and is hard to reconcile even with the right on the part of the Courts to restrain the circulation of a libel, until at any rate the publisher has been convicted of publishing it…Neither the government nor the Courts have…any greater power to prevent or oversee the publication of a newspaper than the writing and sending of a letter.  Indeed, the simplest way of setting forth broadly the position of writers in the press is to say that they stand in substantially the same position as letterwriters…. secondly, press offences, in so far as the term can be used with reference to English law, are tried and punished only byu the ordinary Courts of the country, that is, by a judge and jury.’

A.V. Dicey,  The Law of the Constitution. (1885/1982) pp. 153-155.

The Heritage Foundation

December 7, 2012

The Heritage Foundation is the premier conservative think tank in the United States. Founded by Dr. Edwin Feulner some 40 years ago,  pretty much from ground zero, Heritage has grown and developed under extremely talented leadership.  Its high-quality publications, conferences and influential media presence have been a powerful force for good for all Americans who believe in free enterprise, limited government and the rule of law, while also recognizing the importance of a strong military presence in an unstable world. Its approach may be viewed as a bit too muscular by some libertarians, but it surely supplies an admirable counter-balance to the also formidable, if less muscularly-inclined  Cato Institute.

Ed  Feulner has been a remarkably successful President of the Heritage Foundation precisely because he has always known just where to tread along that delicate border between the world of ideas and the world of politics. Ed Feulner knows full well that good ideas last forever, whereas even the very best of politics is transient. Ronald Reagan is much revered in conservative circles and rightly so. But Reagan was able to influence policy only for a short span of time. He would not recognize the America of Barack Obama. By contrast, the ideas of Adam Smith,  Edmund Burke, Milton Friedman and Friedrich von Hayek live on forever.

So all those of us who love individual liberty,  free markets, limited government, private property rights and the rule of law – whether of the Heritage Foundation or the Cato Institute brand – will watch anxiously, as Jim DeMint assumes the mantle of leadership at the Heritage Foundation.  Let us pray that the new President secures his feet on that delicate borderline as firmly as those huge shoes of Ed Feulner. For, if he fails so to do, and surely if he tips the balance towards politics rather than ideas, conservative political economy will take a huge long-term hit and the progressive movement will sadly benefit.

My personal thanks to Edwin Feulner – a conservative thinker and leader for all seasons.  BRAVO!