Writings on Law

As many of you have surely notice, my writing on here has been sporadic over the past few months. In addition to my full-time job, I also handle legal cases on the side for The Maul Law Group, located in West Michigan. As part of my service to the firm, I am starting to contribute writings on legal topics that I come across during my practice. I have, from time to time, written on legal topics here, though that will be changing going forward.

If you are so inclined, please click over to the Maul Law “Legal News” section and don’t hesitate to share your thoughts, especially if you are in the legal profession. Remember: sharing and clicking material from Maul Law helps raise the firm’s search profile which in turn helps us attract new business.

For those of you who have been reading me for years, hopefully you agree that the time has come in my life to purchase a yacht. Your help is appreciated

Criminal Law on a Tuesday

In a working paper available via SSRN, Bernard Harcourt, a professor of law at Columbia, presents three essays on criminal justice, including a provocative piece comparing the sentencing of Daryl Hamm to death in Alabama to the “show trial” grand jury hearings of Darren Wilson, the police officer responsible for shooting Michael Brown. Harcourt argues that these “verdicts” are illusionary; they fail to get to the truth and instead use the legal process to mask raw political decisions. Even the venerable New York Times was duped, declaring the Grand Jury decision to not deliver a bill of an indictment a “verdict” when, in fact, no trial had taken place, no witnesses were called through the adversarial process, and no neutral trier of fact was present. Yet today many Americans believe that Wilson was “acquitted” of any wrongdoing because the legal process, as orchestrated by a politically driven prosecution team, says so.

David Bentley Hart once provocatively declared that all human law is a fiction, and he’s right. Even the laws that we have, the ones we can look up on Lexis and Westlaw, are little more than an expression of particular ideological interests with only scant interest in aligning with any higher notion of justice, natural or divine. Even if one wishes to ground law in something a bit less “exalted,” such as history or tradition, consider for instance how rickety the “Anglo-American legal tradition” has become. Michigan, for example, has an ever-growing list of so-called strict liability offenses whereby no intent is required, which flies in the face of an aspect of Anglo-American criminal law that has been present since at least the days of Judge Blackstone. Scant attention is paid to this, as this reality both benefits prosecutors and only impacts the “criminal elements” of society.

Tell a layman this and should gasp. And the only reason lawyers would go unfazed is because most don’t care. As noted, prosecutors adore strict liability offenses; it makes their job easier. Defense attorneys, at a certain level, may not be a big fan of them, though the more strict liability offenses there are, the greater chance someone will be ensnared by one and need legal assistance. (Never mind, of course, that assistance comes with one hand tied behind its back.) The public at large, constantly made fearful of crime around every corner, don’t have a powerful incentive to seek reform to the criminal code to ensure that strict liability offenses are minimized, or disposed of altogether. Many states, in order to rectify this problem, have passed statutes imputing general intent on all crimes, though Michigan is not one of them. Sure, the Michigan Supreme Court has said that strict liability offenses are “generally disfavored,” but that has not stopped the legislature from passing more or the courts from enforcing them.

Returning to Harcourt, there is more going on in criminal law than just the use of procedure to mask politics broadly. There are specific political economic interests at stake. Municipalities depend on criminal sanctions to fill their coffers and meaningful reforms which would reduce dangerous behavior are rarely taken. For instance, consider criminal sanctions for driving while intoxicated. All automobiles could, in theory, be equipped with so-called blow-and-go equipment that would make a driver pass a sobriety reading before activating the car. Although some would find a way to evade these measures, the vast majority of those inclined to “risk it” and drive intoxicated would be prevented from getting on the roads. Similarly, measures restricting the late-night sale of alcohol and the operation time of bars would also substantially reduce the risk of drunk driving, and yet they are not taken. Why? Because drunk driving offenses bring in revenue, both to the local municipality, but the state, along with the legal profession as a whole. Moreover, restrictions on alcohol and alcohol sales are said to have adverse economic consequences for stores and bars; never mind that what they are peddling contributes to people making poor decisions with deadly consequences.

Could the system be otherwise? Certainly, but not likely. In other forums, Harcourt has called for greater civic engagement as a means to both exposing power structures and generating meaningful reforms in accordance with justice (albeit an ill-defined sort of justice). But those who are most likely to wind up on the wrong side of criminal law are those least likely to head to the polls, sign petitions, engage in protests, or use print and online media to make their positions known. It would be nice to hope that those in power or “those in the know” will, out of the goodness of their hearts, take steps to ameliorate the plight of under-represented persons who are routinely subject to the inequities of the criminal justice system, but hope is only meaningful when placed in its proper context, which is always theological. At the practical level, hope means very little; a willingness to act is crucial. But from whence does that willingness come? Who is answering that question?

About Last Night

Many sophisticated arguments have been made for and against the application of the death penalty, most consequentialist and some deontological. In Catholic circles, debate over the death penalty recently heated up after Pope Francis condemned the practice outright. That pronouncement, like so many pronouncements of this Pontiff, appeared to conflict with the Church’s prior teaching on the matter, which recognizes the permissibility of the death penalty while allowing that there may be prudent reasons for civil authorities to refrain from using it. In the United States, the death penalty is legal in 31 states, though four currently have a moratorium on the practice. This term, the Supreme Court of the United States will hear arguments about why the death penalty should be abolished under the Punishments Clause of the Eighth Amendment. That clause, rightly or wrongly, has come to be interpreted in line with our “evolving standards of decency,” an elastic measuring stick that I, as a tender (and naïve) youth of 27, criticized in my first foray into legal scholarship as historicist.

Last night, the state of Alabama attempted to put to death Doyle Lee Hamm for the murder of a motel clerk in 1987. Hamm, who has cancer, is at risk for his execution by lethal injection to go awry because of the damage to his veins. In short, there is a high risk that Hamm’s veins will rupture during the execution procedure, sending lethal chemicals into his flesh and leading to a protracted, torturous death.

Despite numerous petitions on his behalf, the 11th Circuit Court of Appeals determined, based on affidavits submitted by Alabama, that the execution could still proceed so long as certain procedures were in place, including using veins in Hamm’s lower extremities rather than his arms. In a last ditch effort to save Hamm from a potentially excruciating execution, his attorney, Columbia law professor Bernard Harcourt, appealed to the Supreme Court to review the 11th Circuit’s ruling. After granting a brief stay, the Court voted 6-3 to deny cert, thus paving the way for Alabama to carry out the execution. For 2 1/2 hours, Alabama officials attempted to find veins on Hamm capable of receiving the lethal injection; they could not. And so, less than half-an-hour before the death warrant was set to expire, the execution was called off.

What went on during those 2 1/2 hours remains a mystery. Only Hamm and those officials and correctional officers present know for sure. Hamm’s attorneys, family, and the media were not present, which is why an emergency motion was filed and granted today in federal district court. According to the order, Hamm is supposed to receive a full medical evaluation tomorrow with an official hearing on Monday which, inter alia, will allow those present, including Hamm, to give an official accounting of last night’s events. The district court has also ordered that no evidence from the aborted execution is to be disposed of, including Hamm’s clothing. What the examination, hearing, and physical evidence will reveal is anyone’s guess, though there is a high likelihood that Hamm was stuck repeatedly with a needle for more than two hours before the debacle was called off.

Distressingly, Hamm’s case received scant mainstream media attention until the execution was almost underway. The Washington Post started covering the matter late last night, noting that the Supreme Court had rescinded its stay and highlighting the risks involved with executing a cancer-stricken man. Aside from a handful of Catholic commentators and outlets that stand firmly against the death penalty in all circumstances, those “enlightened young Catholics” who routinely stock up their moral capital by chasing after causes they think will win them credibility among mainstream Leftists were silent. Why? Perhaps because Hamm, a man who far too many in America would deride as “poor white trash,” wasn’t “hip” enough to care about. Similarly, the most unsettling aspect of Hamm’s case, namely the years of legal malfeasance that have kept him on death row, isn’t “shocking” or “immediate” enough to generate Facebook “Likes” and re-Tweets. Or maybe, just maybe, the routine injustices attendant to America’s penal culture is an acceptable byproduct of a larger system of policing and surveillance meant to secure the essential promise of liberalism, the essential promise that so many “illiberal Catholics” refuse to let go of, namely an unserious life of entertainment, etc.

A Followup on “Trump v. Judiciary”

To follow up quickly on yesterday’s post concerning “Trump v. Judiciary,” reports are out that Supreme Court nominee Judge Neil Gorsuch called President Donald Trump’s recent attacks on the judiciary “disheartening” and “demoralizing.” Trump, naturally, is going after the Democratic Senator who leaked Gorsuch’s statements; to attack Gorsuch—a judge highly favored by social and religious conservatives—would be grossly inept, even for Trump.

The nature of Trump’s attacks on the judiciary boils down to the fact that the President believes the courts are political. Well, of course they are—just don’t tell other lawyers and judges that. Despite some naysayers on the sidelines, the American legal system still functions on the idea that laws can be mechanically applied by the judiciary with lawyers serving as advocates for what that application should look like. Even if this rather naïve view holds true at the local level, the bald politicization of the federal judiciary is hardly a recent development. One of the greatest disservices done to law students is to still teach them that the federal courts are legalist in nature, but I am getting away from my point.

Even assuming Gorsuch used the words “disheartening” and “demoralizing,” that doesn’t say a whole lot about what he will do when he finally gets on the Supreme Court. There are plenty of judges who believe that other judges are “political” while they themselves remain “legal”; perhaps Gorsuch will tell himself that Trump is only attacking “political” judges, such as those of the Ninth Circuit, and not “legal” judges such as himself. That is not to say that Gorscuh, once confirmed, will rubberstamp everything the Trump administration sends the Court’s way. As an Originalist of sorts, Gorsuch is probably not a fan of Trump’s expansionist views of executive power, though he may be less bothered than many liberals about Trump’s national security agenda. But in the end Gorsuch is just one man; his presence on the highest court of the land won’t do enough to change the ideological temperament of the federal judiciary, one that appears to be at odds with any attempt to target foreigners on the basis of ethnicity and culture (or religion?).

Eric Posner Throws Down the Gauntlet on “Trump v. Judiciary”

Over at his customarily insightful web-log, University of Chicago law professor Eric Posner is issuing a challenge: “I’m looking for someone who will provide a legal or constitutional defense of Trump’s attack on the courts.” By “attack,” Posner means President Donald Trump’s recent statements that the judiciary (or at least part of it) is standing in the way of the nation’s national security interests. These statements come on the heels of Judge James Robart’s decision to issue a temporary restraining order against Trump’s controversial executive order (EO) 13,769, which temporarily restricts travel and immigration from seven predominantly Muslim countries. The matter is now before the 9th Circuit Court of Appeals.

I am skeptical that either “a legal or constitutional defense of Trump’s attack on the courts” is necessary given that this so-called attack is, at the moment, primarily political and rhetorical. Although Posner makes a loose comparison between “Trump vs. Judiciary” and “Reagan/G.W. Bush v. Congress,” the latter battle, although infused with political elements, was carried out at the legal level. Poser acknowledges, for instance, that “the Reagan administration . . . sought to change [constitutional doctrine concerning executive power] from within by appointing ideologically committed conservative judges and justices.” Arguably, Trump could go a similar route, though it would take a great deal of time—and even then there is no guarantee that judges who appear highly deferential ex ante their appointments will remain so ex post. As recent Supreme Court history has shown, Republican-appointed justices can and will defect from conservative orthodoxy on numerous matters, ranging from abortion to the power of the government to (apparently) mandate individual entry into the health-care market.

Now, as to Trump’s attack itself, whether it is accurate or not is an empirical question. Up until recently, few doubted that the courts are largely deferential to the executive when it comes to foreign affairs, including national security. Posner does not believe this has changed; rather, he appears to believe that the judiciary does not want to green-light ethnic or cultural discrimination. (It is interesting that Posner does not use the word “religious,” perhaps because he acknowledges that the judiciary has a long history of upholding certain discriminations against religious groups and practices.) And so, to the extent that Trump’s EO (and anticipated future national-security measures) seeks “to purify America of foreign influences in a cultural or even ethnic sense,” the courts are unlikely to budge. If so, that likely has far more to do with ideological rather than legal commitments. The Constitution is openly available to be read in a decidedly ideological manner with little-to-no immediate concern being given to legalism in the strict sense. Whatever creative legal or constitutional argument that can be constructed upholding the EO can be thwarted by equally creative legal or constitutional arguments to the contrary. Ideology, not law, is king.

In the end, there appears to be little reason to believe that a “Trumpian view of the Constitution” isn’t ideological as well. The constitutional text, along with the laws which are ostensibly in harmony with it, is silly putty; it can be twisted and stretched in incalculable ways and pressed against the Zeitgeist to take on new appearances. Maybe Trump does want to “purify” America, or maybe he just wants to keep it secure from credible foreign threats which happen to be associated in the public imagination with a particular ethnic-religious grouping. The judiciary, as currently constituted, may be uncomfortable with one or both possibilities, but Trump needn’t appeal forever to law to overcome them; there are many other less savory means at his disposal.

Critical and Unclear

Critical theory is a fun little tool that will get you published, maybe even laid on a college campus, but not much else. Pick whatever you wish off the shelves of any Left-leaning library and run with it. If you should be endowed with better-than-average literary chops, you might even be able to secure tenure, or the next best thing: a well-trafficked web-log. Although it stands to reason that there have been critical theorists over the past century who genuinely believed that their largely masturbatory pet projects were actually in the service of “human liberation” (whatever that means), the harsh reality is that most of what emerged from, and following, the so-called “Frankfurt School” remains a niche academic interest for graduate students who don’t really understand life and undergraduates who understand neither life nor the theories that ostensibly elucidate it. Rather, under the critical gaze, all of life is reduced to a series of power struggles, deceptions, interpersonal conflicts, and epistemological anarchy and communication becomes little more than an empty exchange of jargon-filled platitudes parading as insights.

Had I, more than a decade ago upon leaving undergrad, thought that I would still be running across the critical-theory crowd, I might have been inclined to go live in a shack in Montana. It had been my assumption that children’s things would no longer be relevant once I entered the “real world,” and for a time my “real world” was legal academia as both a student and faculty fellow. Sure, legal studies, like most disciplines at one time or another, flirted with critical theory, but by the time I was hard at study that movement had been suffocated by the equally noxious “Law & Economics” movement (one, which I am sorry to say, I actually got behind). Penning law-review pieces that quoted Marx, Horkheimer, Barthes, Habermas, etc. stopped being “edgy” 25 years ago. Sure, for obvious reasons there was still room for some Foucault, but who today wants to admit they spend serious time with the likes of Catharine McKinnon, Duncan Kennedy, and Roberto Unger?

I write this despite the fact several acquaintances of mine believe that what we need now more than ever is a refresher on critical theory, specifically its roots and the social movements some believe it inspired. I imagine this sentiment has emerged out of a general frustration with the contemporary Left, specifically the contemporary young Left and its obsession with the pettiest form of identity politics and melodramatic declarations of oppression. Although less visible, and probably not front-and-center in the mind of any Leftist, is the small but apparently growing body of Christian Leftists who, in an often confused and contradictory manner, adopt what they think is a Leftist posture in order to make themselves appear relevant in a cultural milieu that really has no interest whatsoever in what “Jesus Kids” have to say about poverty, racism, war, and so forth. Might it not be possible, some hope, for the Left to be reinvigorated by a return to a more serious time, a period when critically engaging the world and its power structures meant more than sending out Tweets and discussing “polity” with your fellow white, Ivy League graduates?

Maybe, but it seems to me that a return to seriousness is a return to the days when men would kiss their wives, hug their children, and take to the streets, mountainsides, or forests with knives, guns, and Molotov cocktails to not simply “make a point” but literally take apart the machinery of their misery. Not that I endorse such a course of action, mind you, at least not for all of the purposes and interests that often motivated such otherwise well-meaning men, but there is a great deal to be said for having, as they say, “skin in the game.” For nearly a century, a good number of anarchists, communists, and socialists of all shapes and sizes had a great deal of “skin in the game”; if you don’t believe me, just spend a bit of time perusing the history of Western Europe and the United States from the 19th Century onward. Tales of government-backed manipulation, maiming, and murder—all in the name of upholding the fruits of liberalism—fill the history books or, rather, ought to. Actually, what fills the history books even to this day is one long lie about the “progress” of human history and our arrival at its “absolute moment,” an era of unfettered access to porn, booze, and reality television.

During long stretches of highway driving, or even in just a quiet moment of personal reflection taken while in line to buy cigarettes, I have found myself wondering that if/when the “revolution” comes, who will be lined up against a wall and shot first: Me or the coffee-shop commie kid? I jest. There is no revolution coming, at least not from the Left. The steady erosion of life—its meaning and transcendence—that is and has always been part of the liberal project will likely continue unabated during my sojourn on this earth. To hope for anything else seems unreasonable, and yet it is terrifically easy to imagine three or four moves on the global chessboard that could quickly turn the relative passivity of Western (post)modern existence into a bloodbath. Perhaps that’s already happening and for reasons which are still unclear to me, I don’t want to see it.

Don’t Study the Constitution?

Richard Posner, the iconoclastic judge of the Seventh Circuit Court of Appeals and one of the founders of the “Law & Economics” movement, says there is “no value” in studying the U.S. Constitution. People, naturally, are in an uproar over this — people who know nothing about Posner’s views, that is. Anyone who has paid even a shred of attention to what Posner has been writing about for the last 20 years should know by now that he takes an extremely low view of the sub-discipline known as constitutional law. In fact, Posner takes a fairly low view of jurisprudence generally and theories of morality specifically. At a certain level, I have a hard time disagreeing with him. Regardless of who is ultimately responsible, contemporary constitutional law — including the judicial behavior of the Supreme Court of the United States (SCOTUS) — is political, not legal. While there are some fundamental constitutional rules governing areas such as criminal procedure and speech which most law students should be familiar with upon graduation, the large bulk of extant constitutional law isn’t necessary to study. Supposedly time-honored canons of interpretation, along with various theories of construction, mean very little these days; they are artifacts which should interest historians more than lawyers. No, maybe this isn’t how things “ought to be,” but it is where matters lie in 2016 and we’d all be better off if we didn’t kid ourselves that it’s otherwise.

Speaking from my own experience, I am pretty confident that I learned next-to-nothing of lasting value from two semesters of constitutional law. My time would have been better served reviewing the topics tested on the bar exam and leaving it at that. (The irony here is that the law review comment I wrote during my 2L year was on…the Eighth Amendment.) Now, had I ambitions to become a constitutional-law scholar or political historian, there would of course have been great value in studying the constitution, its intellectual underpinnings, and all of the relevant case law which has stacked up over the centuries. But how many people are going to “ascend” to that level? And how many people do we even need in such roles? As Posner has pointed out before, the academic constitutional-law enterprise is pretty worthless, both practically and theoretically. Most forays into constitutional law concern the writer(s) masking their own pet moral views under the cloak of legality and claiming this is why SCOTUS was right/wrong in a particular case (or series of cases). Posner is right. Who cares? And beyond that, who has ever read a law review article praising/damning a particular case because of some abstract moral theory and been convinced to change their mind on the matter? (Ok, I am sure some impressionable law students have, but outside of keeping the lights on in law schools with their hard-earned debt, they don’t really count.)