Unused and Probably Unusable

My long overdue (Kermit Roosevelt wrote on 8/1/05, [still] "Waiting for your Scalia post ..."), long promised, eagerly anticipated (see the comments, including the good-humored response by "Not Eh Nonymous" about my "undoubtedly irresistible logic") Response to Scalia - unfortunately, not the entire promised Mega-Post, just the first part.

I have lots to say about Scalia, and I'll say it all, soooner or later, but since this topic is currently in the blawgs, let's tackle it now.

Therefore, I present:

Scalia Mega-Post (First Part): Living Constitutionalism

Scalia's always newsworthy, always a Current Events kind of guy; just recently Dahlia Lithwick (link goes to fan page) held a two-headed contest to discuss the "Living Constitution," which isn't Scalia's idea but is one of his favorite topic. To put it mildly, he doesn't favor the concept. Dahlia's article was ably blogged by Prof. B at "Dahlia Punts," which is true. First she posted liberal responses to "Why Scalia's Wrong" about the Living Constitution; then she posted conservative replies explaining why the Living Constitution is a dead letter, and originalism is either triumphant or plain right.

I. What's the question?

"Not Eh Nonymous," as I alluded above, is a skeptic of my skepticism. "He" (I have no idea, but I'm guessing a male) wrote:

Scalia's proposition, it seems to me, is straightforward: The Constitution ought to be interpreted strictly and in accordance with the intention of the original ratifying parties. This is a well-known approach, for example, to contract interpretation. Any other approach invariably leads to the personal preferences of those intrepreting the document in question.

In a nutshell, what is your response to why this approach to intrepreting the Constitution is incorrect?

Excellently put, Not Eh Nonymous. Let's try to answer your question.

In fact, I may have to have a lot of background before I answer it, so let's hide the preamble behind a jump.

II. Some background on Scalia

Before I discuss the arguments for and against, I want to explain how I know where he's coming from, and what he says about the Living Constitution itself.
I think that's enough preamble. Let's seriously address his thesis, as Not Eh Nonymous urged.

Not Eh Nonymous (comment at Aug 24, 2005 3:51:52) challenged me: what's my answer to the argument that the Constitution Ain't Living because it "ought to be interpreted strictly and in accordance with the intentions of the original ratifying parties."

Well, fine question, NEN.

The original ratifying parties being dead, we have a plethora of choices. Well, at least three:

III. Towards a theory of Constitutional interpretation

Whew. Long post. Hope that addresses NEN's question; I'm sure it doesn't answer all of mine. I'll have more to say about Scalia and his view of the Constitution, as well as of his views on

• Free Exercise and religion (like the Pledge case)
  
  
• minorities



• hippies



• federalism



• criminal defendants



• abortion



• "gays" - since Scalia doesn't use the word, he prefers "homosexual" - less respectful, you see
  dissenting and collegiality

and other fun topics as I find time.

Comments will be much appreciated, unless they're flamingly unpleasant, in which case they will be cherished and then consigned to oblivion.

Current events: murder! he wrote

Upon overhearing that 23-year-old rapper Cassidy is now being charged with Third, not First degree murder in a sensational case involving, I gather, multiple injuries, at least one death, many shots being fired by Cassidy's associates, and cries of outrage on both sides...

I felt that now was a good time to post on some of the basics of criminal law.

The definition of Third degree, but first, a totally irrelevant digression

Third degree murder, by way of introduction, has no one defintion, just like First degree murder. For crimes in general, First degree is more serious. (Warning: massive digression ahead! May contain needless musings on the use and meanings of words!)

Back now to our regularly scheduled discussion on murder and crime.

End of digression: on gradations of crime, and deterrence

Many felonies and a number of misdemeanors involve gradations, levels of severity. First degree this versus second-degree (less serious) that. Again, the definitions vary from place to place. The reason for differentiation is that we want people to not commit crime; failing that, we want them to commit the least crime, or the safest crime, possible. So, if you're going to be killing people, we want you to stop at one, or if you must kill more than one, to not kill them in really-really-bad ways. That's why we have First Degree murder, which is not necessarily the same as capital murder, but can be; capital murder just means the death penalty is on the table. Usually a lesser charge than 1st degree cannot be capital, but again it's up to the legislature to make that kind of call.

[note: The Smallest Defender (tSD) takes issue with the above, which I think I largely cribbed from my (wildly interesting, but certainly not universally agreed-with) criminal law professor. tLD argues,

I think I disagree that the gradations of crime are to encourage people to commit the least crime possible. Instead, I would say that in american jurisprudence we have a very strong notion that the punishment should fit the crime as exactly as possible (that is, except for drug possession, where public outcry has run roughshod with sentencing). Thus, gradations for a crime are rubrics that allow for the assessment of the actual act done in order to assess the correct penalty.

Frankly, I don't feel qualified to say which is the "right" interpretation of our sentencing and criminal justice systems, and so I present you with both interpretations in hopes they are interesting or useful. Now, on with my own argument!]

A legislature could choose to be silly, and allow the death penalty for involuntary manslaughter (off-the-cuff definition: by the creation of a substantial and unjustifiable risk of injury or death to another, inadvertently but recklessly causing a death).

Compare involuntary man to voluntary manslaughter, where the act is intentional but the circumstances are slightly more understandable, excusable, or justifiable (depending on your theory of excuse, justification, and dessert). That is, if you come home and discover your beloved cat in the arms of another owner, and fly into a rage, you probably are not justified in killing them or anyone else. But a spouse, and the law tends to accept that you had a real good reason to fly into a rage, and though it was wrong, it was not as wrong as if you had not been

• actually under the effects of
  a sudden, violent passion, brought on by
  certain adequate provocation.

I intentionally avoided the word "under the influence," which has another meaning in a different context.

So, if you have the death penalty for tax fraud and for jaywalking and for assault and battery and for third degree murder, then the cost-benefit calculus is all wrong. If I commit an unarmed robbery (threatening someone with my big muscles, say) and then flee with the loot, and in the process am chased by police, a "rational" criminal might compare their options. I can submit, and face prison (or death, in my example above), or I can run, risking greater jail time but possibly gaining a chance at escaping the long arm of the law.

Or, to change the hypothetical if I know that by committing armed robbery during which I shot and wounded an innocent bystander I am almost certain to receive a death sentence, I have nothing to lose and _everything_ to gain by killing witnesses, killing police officers, and slaughtering everyone I come across. After all, we don't have punishments more severe than death. Logically, then, punishments as severe as death should be reserved. Not just for deaths; but for extraordinary deaths.

If the armed robber knows that he's up for life in prison (armed robbery, felony assault with a deadly weapon, evading arrest, reckless endangerment, this is such a wide-open issue-spotting exam-type question that most law students could identify possible crimes for half an hour of scribbling without exhausting the possibilities) already, we want him to try to escape carefully, if he must try to escape. No firing wildly at police officers. No running down pregnant women in the street. We want him to drive away slowly.

In any case, Cassidy is up for Third, not First, degree murder. So instead of a likely life in prison sentence, he is probably facing a sentence of 20 to 40 years if convicted and not pardoned.

Summary of the various kinds of homicide

Involuntary manslaughter, as I mentioned above, is a "risk-creation" offense (usually). Voluntary manslaughter, as I also discussed, is an intent crime with a mitigating (not aggravating) factor: high emotional disturbance caused by a "legally adequate provocation" (usually; check your local listings for time and station).

Murder is the intentional unlawful and unjustified killing of another (lets out military service, unless you happen to also commit a wrongful killing there, say of fellow soldiers or officers, or civilians, etc.), and also lets out suicide. Suicide may be a crime (who you prosecute?) but it's not a crime _against another_ unless you are also committing another crime, like insurance fraud). First degree requires premeditation or other aggravating factors on top of an unlawful intentional killing. Second degree is the same without the aggravating factor. Third degree is... well, it depends. Is it an intentional killing under forgiveable circumstances? Is it the same as voluntary manslaughter, but more so? In many jurisdictions, including I believe Pennsylvania, Third Degree Murder is defined along these lines:

"Any murder that is not first- or second-degree murder" which apparently includes or possibly equals "A murder committed in the perpetration of a felony not listed" among certain enumerated ones, chosen by the legislature.

There's also lesser risk-creation crimes, like "negligent homicide," which requires only that the death of another was wrongfully caused by the negligent or unintentionally careless acts of the defendant.

In other news: Third degree (not First degree) in Allegheny; also the Train Wreck case
Scott Werner, 47, of West Deer in Allegheny County, PA, was convicted after more than 12 hours of jury deliberation, of the same crime: Third degree murder. His crime apparently involved a highly personal and highly upsetting set of facts: stabbing his wife to death after a heated argument, taking his then-9 year old daughter to Clarion County, and planning to kill himself. Ugly stuff, but also a fairly good case for third degree murder. Some were disappointed on each side; the defense argued for a manslaughter conviction, and the prosecution wanted a First degree conviction.

First degree involves some aggravating factor over and above intentional murder. If I picked up an object at random on my desk, say a telephone, and suddenly turned to the window and targeted someone down there and threw the telephone intending to kill them, it's probably second degree murder if I do in fact kill them, unless we invent more facts. If I purchase a gun intending to attack someone the same way, I would think it was evidence of premeditation, which is the kind of aggravation which can produce First degree. Other aggravating factors vary by jurisdiction, but may include

• killing the victim of a kidnapping



• killing a witness to another crime in order to prevent them from testifying (compare this to "professional fouls" in the rules of soccer; committing a foul in order to avoid a negative result - a goal being scored - is very serious, and should result in ejection from the match), or
  
  killing a police officer in the line of duty.

At DUIblog, there has been excellent coverage of "vehicular manslaughter" versus "murder by intoxicated driving," which is a bizarre and unjustifiable extension of the law of premeditation and intoxication to turn drunk driving (a bad idea, risky, stupid) into First degree murder (utterly evil, intentional, premeditated). There is also a legally interesting analysis of the infamous train wreck disaster from January, 2005, see Overkill: DUI, Train Wrecks and Murder. Money quote:

A deeply disturbed man, trying to commit suicide, sits in his car on the train tracks and just before the collision panics and jumps out of the car. The offense should be obvious: multiple counts of involuntary manslaughter . (By a great stretch of logic, one could argue 2nd degree murder due to "conscious/willful disregard for the lives of others", although that seems refuted by his mental state and wandering through the carnage afterwards crying out "I'm sorry, I'm so sorry".)

Yesterday, however, he was charged with eleven counts of murder. And the media has been loudly reporting (hoping?) that the D.A.'s office will be seeking the death penalty. Even the staid New York Times reported that the District Attorney, "his voice firm with anger", said that "Because this man was distressed, 11 people are dead from his selfishness" and that he was considering the death penalty.

When did we start executing people because they were distressed or selfish? Or, as in DUI cases, stupid or reckless? Whatever happened to "cold, calculating and premeditated"?

Emphasis mine.

I intend to post in the near future (over the next few months) about white collar crime, conspiracy, hearsay and other evidential problems in litigation generally, and international crimes. Fortunately, White Collar Crime Prof Blog, JuryGeek, and Crime & Federalism are out ahead of me here, and most likely I will be able to collect their posts of interest, add my thoughts, and voila: instant relevance.

I. the Pledge

Today's post comes to you in no small part because of an old post on Volokh.com by Unindicted Co-Conspirator Jacob Levy. He wrote about the Pledge on March 25, 2004, and it's been kicking around in my head ever since.



You may notice I brought up Scalia again, near the end there. Well, he's my bete noire, and simultaneously my touchstone of What's Right; if Scalia agrees with it, I feel a pressing need to think long and hard about why he might be right, and a reasoned explanation for why he might be wrong. He's not always wrong; far from it. Only on some of the big questions.

I promise, I promise, I'll get to the Scalia mega-post shortly. I pledge it'll be done soon.

Another great Class action article (HT: Howard again) (aside: HT is the abbreviation, commonly used by bloggers, to say Hat Tip, meaning a Tip of the Hat or casual salute to, another blogger or journalist for pointing out the relevant source.)

Wal-Mart's Bid to Void Suit Calls It Too Big (L.A. Times; free subscription may be required) mentions that the certification decision is the "crucial moment" for a class action, particularly for mass discrimination cases like Wal-Mart. UCLA Law Prof and labor law expert Katherine Stone is quoted:

"If the class is certified, the defendants will usually settle," she said. But if the plaintiffs' petition for a class action is rejected, it becomes too expensive for plaintiffs' lawyers to pursue their cases individually and they will "usually fold," Stone said.

Part I: In which I explain the significance of certification

Why is Stone's comment accurate? It's because the certification of a class gives plaintiff's lawyers a much bigger stick to wield against defendants. Insurance companies who want to continue fighting until certification is finally decided have a good point: a pre-certified class is only a potential threat. A certified class, on the other hand, has made it past a judicial hurdle - one required by statute. It has shown that it meets certain requirements (see Federal Rule of Civil Procedure 23, or your local equivalent), in the eyes of the judge:
(click below to continue)



Part II: A discursive and general discussion of abstractions

[This part starts in but diverges from the class action context, and discusses something more in the nature of Conflicts of Law and the nature of Interesting Questions. It could be its own post, but it comes out of the prior discussion and so I'll leave it here, in its own section.]



As I always say, I'll have more about class actions in future posts.

[update: Thanks again to Patent Baristas for including this post in Blawg Review #19. I'm not entirely clear on what "Cooked" means, but it's apparently good. Yes, this is a linguistically inclined blawg, and I am glad that this post was interesting to someone.

I have some more thoughts on Wal-mart, and why its arguments may in fact have been meritorious (not that I necessarily want to see them win or lose, I'm just talking about rightness and wrongness). I'll get to them at some point. Short summary: if a class action is certified that necessarily involves a choice of law analysis between an excess of 50 jurisdictions; in which forum and jurisdiction are not necessarily correct; in which multiple (or even incompatible?) legal theories are being asserted; and against which no defense is possible, certification in a bet-the-company case does begin to look like a raw deal. However, unlike the classic cases (see In re Agent Orange Product Liability Litigation before Judge Weinstein) what's being asserted against Wal-mart is: >a factually diverse set of claims regarding a
uniformly applicable body of law. In an air crash or an agent orange exposure case, it's not just about proving you were injured; there's also the question, under what tort law (including law of privileges) does the case proceed? In a Title VII claim, especially with allegations of nationwide business practices (uniformly, from the top-down, allowing or failing to detect and halt sex-based discrimination), there's one law: Federal statutory law. But I'll have more to say later, as and if the case proceeds.]

According to the always invaluable and in this case downright magnificent Howard Bashman, a "reader from Philadelphia who chooses to remain anonymous" submitted the winning entry in his hilarious "identify the most dumb-ass question that could possibly be asked of U.S. Supreme Court nominee John G. Roberts, Jr. at his upcoming confirmation hearings" contest.

It's me! It's me! I'm the one who "chooses to remain anonymous" - but I never thought I would win! I'd have given my name as Eh Nonymous, but I didn't think I'd even be an honorable mention.
[added: Entirely Anonymous No More is Howard's update. It's true; I'm Not Entirely Anonymous, but Eh (pronounced like the letter "A") Nonymous. Thanks again, Howard.]

(click here to show the rest)

The Man who Started it All (aside from possibly Karl Rove, or maybe Libby), Robert Novak (who, 8 days after the publication of former Ambassador Wilson's flaming op-ed piece criticizing Bush's rationalization for war, came out with the first public report that Wilson's wife, Valerie Plame, was a CIA employee)...