Monthly Archives: June 2013

Federal Grand Jury Indicts Dzhokhar A. Tsarnaev on Thirty Counts

The federal grand jury returned an indictment against Tsarnaev, on counts of using weapons of mass destruction and four deaths.   (I am interested to note that the fourth death is that of Sean Collier, but there is no felony-murder charge for the death of Dzhokhar’s brother. )  Seventeen of the charges carry a possible death penalty, which is available under federal law but not in Massachusetts.

In 2004, Gov. Mitt Romney created a panel to examine reinstating the death penalty in Massachusetts; he then drafted legislation and presented it to the Massachusetts Legislature for approval.  One key provision was that there be physical evidence linking the alleged murderer to the crime scene, e.g. DNA.  (I will note that a lack of physical evidence connecting the alleged murderer to the crime was a crucial plot device in John Grisham’s “The Confession“, his second fictional book arguing against the death penalty.  In the epilogue, Grisham approvingly writes that the real murderer will get the death penalty.)  Romney’s proposal went down in flames; Massachusetts firmly declared that it would not condone capital punishment under any circumstances.

Since Massachusetts doesn’t have the death penalty, there is a big push to make a federal case (literally) out of the Marathon bombings.  As someone who is not opposed to capital punishment, I have no problem with the feds trying to give Tsarnaev the needle, but I question the rest of my state.  Those who are truly against capital punishment ought to be begging the Suffolk County and Middlesex County D.A.s to try Tsarnaev and imprison him for life, and to fight the federal government to not execute him.  They ought to be saying, “Our state has repeatedly rejected attempts to have the death penalty, and the federal government should respect that desire by not imposing capital punishment, or allowing our state to try the case.”

But the silence seems to indicate that Bay Staters believe that capital punishment is acceptable for crimes committed in Massachusetts by Massachusetts residents, killing only Massachusetts residents, so long as some other jurisdiction does the dirty work.

It is reminiscent of Martha Coakley attempting to support the death penalty for KSM while opposing capital punishment.  Ultimately, death penalty abolitionists need to confront the idea that a blanket prohibition on the death penalty applies to Khalid Sheik Mohammed, Dzhokhar Tsarnaev, Timothy McVeigh, and Ted Bundy. If you want the death penalty for those people, or even some of them, then you need to figure out a law that enables a state to execute them.


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Am I missing something?

Down in Florida, the trial of George Zimmerman has begun, to great media frenzy.  See, Zimmerman, a Hispanic man, killed a black man (Trayvon Martin), perhaps in self-defence.

Meanwhile, here in Massachusetts, football player Aaron Hernandez has been arrested and charged with the murder of Odin Lloyd.  The Patriots have released Hernandez from the team, even though it could hurt them (i.e. issues with their salary cap not being adjusted for removing an alleged murderer from the squad).

So you have a Hispanic man who killed a black man, perhaps in self-defence, and a Hispanic man who killed a black man, perhaps in order to cover up another homicide.  Why the radical difference in the content of the press coverage?

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Things I’ve been saying for years

The insightful Megan McArdle links to google’s decision to change its interview process, having found out that most of its employees are really bad at determining whether someone will be a good worker or not.  As the NYT article says,

On the hiring side, we found that brainteasers are a complete waste of time. How many golf balls can you fit into an airplane? How many gas stations in Manhattan? A complete waste of time. They don’t predict anything. They serve primarily to make the interviewer feel smart.

Ah, making the interviewer feel smart: the golden goal of any interview.  Years ago, I wrote about my disastrous Northwestern Law School interview.  I flew out to Chicago after getting waitlisted by the school and interviewed with an alumnus from admissions. The upshot was that the guy couldn’t understand why an engineer would want to go to law school, and when I mentioned the legal implications of some of my engineering projects (namely, space law), he flipped out.  “Space law?  I’m a lawyer and I’ve never heard of it.”  I ended up explaining the basics to him – then promptly got a rejection letter from the school.  Obviously, of the two ways to look at the situation of a 0L correctly explaining the law to a ten-year attorney, he preferred the “She’s weird, let’s reject her” way.

Which is the fundamental problem with a lot of these situations: it’s more about the subjective reaction of the interviewer than anything that has to do with the interviewee’s merits.  There is the problem of tailoring the interview to the interviewee: the SAT writing test may be a fine way to distinguish decent high school student writers from those who can’t form a coherent sentence, but would be a terrible way to measure Victor Hugo’s writing ability.  The other problem with “Do you make me feel smart?” hiring is that it’s a great way to end up with a team full of people with the same background, the same types of thought processes,  and a propensity to make the same types of decisions.  That might work for a synchronised swimming team, but not so much for one facing a diversity of challenges.

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Can we please run this country like Chicago?

Because it would be less corrupt.  Really, it would be.

Via James O’Keefe, the Department of Justice gave journalist status to Curtis Morrison, the man who illegally bugged Sen. Mitch McConnell’s office.   One ramification of this is that any individual or entity who wants  to subpoena Morrison’s records will need Eric Holder’s approval.

James O’Keefe is livid.  As he pointed out in his Facebook post, “I was arrested, incarcerated, Defamed, Placed on probation, restricted from traveling, had my bank accounts audited and my emails leaked… after taping Landrieu’s staffers legally.”  Yes, O’Keefe’s taping itself was legal; his entry into the building was a misdemeanour, because he entered under false pretenses.  His non-crime is the kind of overreaching, all-encompassing ridiculousness that is used as a bludgeon to criminalise behaviour that the powers-that-be do not like, but when no other crime has been committed.

Curtis Morrison revealed his tape in the fall; over eight months later, he has yet to be indicted.  It’s clear that he illegally eavesdropped on the conversation; he openly admits to “intercepting” a “wire, oral, or electronic communication“.  (Morrison’s actions do not appear to be privileged.)  Again, for the cheap seats, the guy has not even been indicted.

What’s clear is that the wrongdoing of people like Morrison will be ignored, while people like James O’Keefe – guilty of a far lesser criminal act – will be prosecuted.  As I said in the post title, can we run this country like Chicago and cut down on the corruption?  O’Keefe went to talk to Landrieu’s staffers about her allegedly “down” telephone system; they didn’t have any expectation of privacy in their conversation.  Morrison blatantly eavesdropped.  Yet O’Keefe was arrested almost immediately.

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Say whaaa?

KRMG out of Tulsa, Oklahoma, brings us the story of a woman who found her husband tied up and beheaded, in what the police called an “apparent suicide”:

The incident happened near 46th and Sheridan.

Police say a woman who lives in the home found her husband dead in the garage.

His hands and feet were tied and the body had been decapitated.

Tulsa police told KRMG news the death was due to suicide.

Cops gave no other details at the time but continue to investigate the matter.

Someone, please explain this to me.


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Backwards Priorities

Patterico reports that the IRS has been developing a data-mining method to catch tax cheats, including snooping on eBay transactions, emails, and credit-card transactions.  (On a side note, tax professor Edward Zelinksky ought to seriously consider what “safeguards” he finds appropriate for the IRS when monitoring literally every single electronic transaction that citizens of an allegedly free country engage in.  Last I checked, the “safeguard” was the Fourth Amendment, and, prior to the 1960s, it required the government to get a warrant before snooping on Americans.)

We have video evidence of employees of wireless phone companies giving out “free” (i.e. paid for by taxpayers) wireless phones to people who say that they are going to sell the phones to get drugs and luxury goods.

In theory, advanced data mining could track down those people, but we have seen the refusal of the government to crack down on those who abuse its benefits.  (For those who want a link, just google Shaunna O’Connell and Massachusetts, and figure out how insanely hard it is for elected officials to get some accountability.)  So the IRS can snoop on the emails and online purchases of a teenager who  mows lawns over the summer and harass him about not filing taxes on his lawn-moving and snow-shoveling income, while leaving the welfare cheats, drug dealers, and illegal immigrants alone.

Yes, illegal immigrants: those people who are paid under the table or via false Social Security numbers.  Let’s all take a bet on how likely it is that the IRS will use its amazing powers to ferret them out.

As a final thought, the correct, constitutionally appropriate means of fighting crime is to have a crime, or probable cause that a crime was committed, and then find the perpetrator.  You have a suspiciously dead body; you do an autopsy and figure out if it was some form of homicide, then figure how whodunnit.  What we have here is the government monitoring every citizen for evidence of a crime, then slapping the appropriate criminal sanctions against those it finds guilty.  This is backwards: free countries do not start with a person to look for evidence of a crime, but start with a crime and look for a perpetrator.

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Subtitled: “How to find your best friend in law school.”

Back in 2005, when I was taking administrative law, our class discussed the fact that about 90% of our laws are made by administrative agencies, not by Congress.  At one point during this discussion, I stuck my hand up in the air and said, “The problem is that we are not voting these people [agency heads, etc.] in, and if they make laws that we abhor, we can’t vote them out.”  My professor said that we can vote out members of Congress if they keep appointing these problematic agency heads, or vote in Congressmen who promise to replace the agency heads. I replied that it was far too attenuated, and our Constitution is set up so that we vote for the people who make our  laws, not vote for the people who appoint the people who make our laws.

My professor then said that it’s impractical to expect that Congress can make all the laws and the regulations that we have now: the federal government does too much.  Immediately, a hand shot up in the air behind me, and dark-haired woman said, “If Congress doesn’t have time to regulate all of those things, maybe it’s because it shouldn’t be sticking its fingers in there anyway. The federal government is one of limited powers, and if Congress doesn’t have time to regulate something, maybe it shouldn’t be doing it anyway.”

At this point, the other 18 people in the class were rolling their eyes.  The professor said something along the lines of, “Ladies, it’s been the law for over seventy years; let it go”  – as if this were merely some abstract principle, not the essence of freedom and representative government.

Fast-forward to 2013.  The dark-haired woman is one of my best friends, and we should open up a psychic business together.  Today, in Instapundit, we have this:

Benghazi. The IRS targeting of conservative groups. Secret e-mail accounts used by top federal officials — such as former EPA administrator Lisa Jackson and Labor Secretary nominee Tom Perez — to conduct official business. HHS Secretary Kathleen Sebelius’s efforts to promote Obamacare with a private slush fund solicited from companies she regulates. Subpoenas for records of journalists. The NSA revelations.

How many warning signs — emerging virtually all at once — do we need to realize that the American people have lost control of their government? Not only that, but large sectors of the government have lost any ability to provide checks and balances or even monitor the bureaucracy.

Hey, I could have told you all of this as a 1L in 2005.  I would also like to add to John Fund’s excellent article and point out that if administrative agencies didn’t exist, then some person in Congress would have to have approved these debacles – and that person’s career would be over in November of 2014.  Fund says that Congress can no longer control the Leviathan bureaucracy; I think that has been true for eighty years, just to varying degrees of bad results.


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In which I disagree with a unanimous Supreme Court ruling

Contra yesterday’s ruling, human genes should be patentable.  No, seriously, is there any reason why God can’t apply for a patent on the human genome, or parts thereof? Shouldn’t Satan be allowed to patent mutations that cause psychosis?  C’mon, Justices, allow these guys to get their period of exclusivity – twenty years from the date of patent application.  There are issues regarding the length of time that the genetic code has been in the public domain, and how this should interact with international patent applications, but really, no reason to not allow God, Mother Nature, Buddha, or the deity of your choice to apply for a patent on human genes.  Sorry, SCOTUS, but the human genome is potentially patentable – just not by a human.

A very quick patent law overview: you can patent devices or new compositions (e.g. a widget or a drug) or methods (e.g. “a method of isolating genes”).  You cannot patent ideas (e.g. “e=mc^2”) or scientific progress (e.g. quantum mechanics).  Only the inventor(s) can apply for a patent; mandatory assignment clauses in an employment contract might require the inventor(s) to hand over the rights to the invention to his employer, but the inventor(s) is the only rightful applicant.

I just don’t know how you would patent part of the genome.  Neither does any Justice on the Supreme Court.  SCOTUSblog called this a “patent truism” because Myriad Genetics did not create anything; it discovered something.

Some commentators have suggested that the underlying public policy is to make health care more available to people (not subject to the high prices caused by patent exclusivity).  I hope this is not the case: the motivation for investing in and creating a new drug or medical device is the profit that comes from patent exclusivity.  Myriad’s problem is that it didn’t create anything new; it only discovered a natural process. There are certainly public policy issues surrounding the protection of scientific advances, but the solution is to not make everything unpatenable.

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Belgian Parliament: kids can consent to euthanasia

The Belgian Parliament will soon vote on a bill that would enable children to consent to euthanasia, so long as their doctors think that their consent is mature and that their condition is dire, and would also allow incompetent Alzheimer’s patients to be euthanised:

A consensus among members of the legislative body has reportedly formed in support of legislation to allow children to choose to undergo euthanasia in certain dire cases, according to a report in the Belgian daily newspaper Der Morgen, as translated by the Paris-based news agency Presseurop. [….]

The bill, introduced by the Socialist party in December, would lay out guidelines for doctors to decide on a case-by-case basis whether or not a child is mature enough to make the decision to end his or her own life, as well as whether a child’s health is grave and hopeless enough to warrant euthanasia. [….]

The bill would also likely allow euthanasia for patients suffering from Alzheimer’s and other diseases leading to advanced dementia, who may otherwise be deemed incompetent to make the decision to die.

Doctors may already perform euthanasia on children, so long as they act in accordance with medical guidelines.

Fundamentally, this bill destroys any idea of meaningful, informed consent, and it highlights how fast euthanasia degrades into the standard for dealing with tough medical situations.  Alzheimer’s is a horrible, frightening, disease, one that many people would rather die than live with; however, once we remove the idea of meaningful consent, weighed against all other options, we’re well on the road to dystopia.

Children and teenagers cannot give meaningful consent, not because they aren’t mature for their ages, rather, because a kid who has only been on the planet for fifteen or so years lacks a meaningful understanding of ‘forever’ and ‘hopeless’.   Remember being a teenager?  Remember when ‘six months’ seemed like an eternity?  Remember when you thought that life would never change? And you didn’t even have a deadly disease.  A child’s short time on earth means that his perspective on ‘forever’ and ‘for the rest of your life’ is inherently limited, which is why we don’t allow children to make life-altering decisions.

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Filed under Bioethics

Hilary Jane Margeret White’s epic “choice” rant

It’s not a rant, per se, but Miss White discusses everything from the problems with schools turning into the arbiters of healthy eating to gun control and sexuality. It’s also not a blog post about “choice” so much as one about personal responsibility.  She argues that the whole “safe sex” mindset triggered this madness, wherein teenagers were encouraged to indulge their whims, treated as if they lacked self-control, and (with taxpayer funded abortion and contraception) other people are responsible for the consequences.

My only addition to her spectacular essay is that we’ve inverted the normal range of choices that we expect that people can make.  Back in the dark ages, we assumed that a fourteen-year-old could figure out how to fix a healthy dinner for herself (ergo, she knows what is healthy and what is not, and is capable of putting a piece of chicken in the oven and a salad in a bowl).  We also assumed that she wasn’t able to make any  meaningful choice about sexual activity, i.e. the only rational choice would be to not have sex at the tender age of 14.   Now, society has decided that a fourteen-year-old can give valid consent to sexual activity with a voting-age adult, but can’t be responsible for reading a nutrition label.

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Filed under Bioethics, Food, Miscellanea