Law & Justice: August 2005 Archives
Eugene Volokh has an intriguing post about unreliable assurances, with examples that speak for themselves.
I'm looking for examples where (1) the opponents of some proposed law, constitutional amendment, or judicial decision argued "this action will be interpreted in this particular bad way" or "this action will set a precedent that will be used to reach this particular bad result," (2) the supporters assured the public that no, of course this won't happen, and (3) some time down the line — preferably no more than 50 years, just to avoid especially hard questions of causation — the foretold result did take place, despite the supporters' reassurances.
The examples he cites, and many others, explain why libertarians are so wary of even tiny baby steps towards rights restrictions -- the so-called "slipperly slope" argument. Professor Volokh's post is particularly interesting because he's often a harsh critic of slippery slope arguments, rightly pointing out that slopes often can be avoided. However, as these examples demonstrate, they often are not.
This fear of a slippery slope is why I oppose gun registration laws -- registration is a clear first step towards a ban and confiscation. Registration is how, gasp, the Nazis and Communists began disarming their subject people. Likewise, I'm sympathetic to those who oppose greater police power designed to combat terrorism even though, yes, the power can and will be misused at some time. I've tried to account for that inevitable occasional misuse, however, in my decision to support some controversial laws, such as the Patriot Act.
Despite supporting jury nullification in my earlier posts, the absurd level of misconduct by the Michael Jackson jury gives me second thoughts.
LOS ANGELES - Jury deliberations in Michael Jackson's child-molestation trial were allegedly tainted by shocking misconduct that included smuggling in videotaped Court TV shows and secretly communicating with the pop star's mother, the Daily News has learned. ...# A juror sneaked a forbidden video of Court TV broadcasts featuring the prosecution-friendly Diane Dimond and Nancy Grace into the jury room, but a faulty VCR prevented a sneak peek.
# Juror Eleanor Cook says she smuggled a medical text into deliberations to show "Jackson fit the book's definition of a pedophile to a T." Other jurors later held it over her head to "intimidate" her into voting for acquittal, she says.
# Cook admits she frequently winked at Jackson's mother Katherine in court and "exchanged wardrobe tips" with the entertainer's mom, which resulted in them wearing the same colors on certain days. "She [Cook] intimated that she communicated with Katherine Jackson, in some manner, during the trial," said Brown.
# A gang of three female jurors were such rabid Jackson fans that they cooed, "Not my Michael . . ." when the panel discussed the felony charges against the pop idol. Both Cook and juror Ray Hultman "said these three women formed a bond, and their minds were made up about one-third of the way through the trial," Brown said.
Completely ridiculous. I have no reason to doubt the veracity of this report, since the source, Stacy Brown, is a writer who is now so disgusted with the jurors that s/he has refused to co-author books with them.
Maybe some of my laywer readers can enlighten me: are these kinds of behaviors routine for juries?
A New York judge has finally "clarified" a legal question I raised last year: how can pornography be legal and prostitution illegal? My own contention is that only a twisted conception of sexuality and rational law could justify one but not the other, especially since one can easily be disguised as the other with a little forethought.
A Manhattan judge has enunciated the legal distinction between prostitution and paying someone to participate in sexual activity to make a pornographic film.Prostitution, as traditionally defined, requires person A paying person B for sexual activity to be performed on A, Supreme Court Justice Budd G. Goodman wrote in People v. Paulino, 6687/04.
Pornography, on the other hand, involves person C paying B for sexual activity performed on A.
Where, presumably, (C != A).
The case arises from the owner of an "escort" service complaining about selective prosecution because she was arrested while much larger pornographers operate in complete security protected by the First Amendment. The judge banked and dived in every direction attempting to explain the difference between pornography and prostitution, but in the end his analysis is rather unsatisfying in that it rests on:
The "court concludes [that] because the pornographic motion picture industry has flourished without prosecution since its infancy, that industry was not intended to be covered," Goodman wrote. "If it had meant to be covered, the legislature would have taken up the matter long ago."
The solution for an "escort" agencies is, of course, to videotape the proceedings and sell the tapes to their clients for a nominal fee.
(HT: James Taranto.)
