August 11, 2006

Why the New York Times Can't Prepare You For the Bar Exam (or your CrimLaw Final)

Compare and contrast this New York Times editorial on "castle doctrine" laws with this fisking. As those who just took the New York bar will recall, New York requires someone in fear of their life to make reasonable efforts to retreat before using deadly force in self-defense, while maintaining a "castle doctrine," wherein there's no requirement to retreat if the defendant can prove they were in reasonable fear of their life or great bodily harm. However, the requirement to retreat is a minority rule.

The primary change in Florida (and some other state's) "stand your ground" laws is a mere presumption. (Though apparently one report to a Florida committee suggests that this presumption is "conclusive," this seems more a counsel against the use of legislative history, if it's not out and out scaremongering.) [1]) The castle doctrine generally required a defendant to prove that they were in fear of their lives. The stand your ground laws grant a (almost certainly rebuttable) presumption to homeowners that, if a burglar or other intruder breaks into their house, they were probably in fear of their lives, and that someone breaking into a home is willing to use violence. For most of us living in homes, particularly those of us who have lived in bad neighborhoods, this isn't much of an intuitive stretch.

Liptak deals with this change wholly unpersuasively: "[Homeowners] no longer need to prove that they feared for their safety, only that the person they killed intruded unlawfully and forcefully." What he leaves out, of course, is the fact that a homeowner who did not fear for their safety can still be convicted: the state merely has to prove this as part of its case.

Once you get out of the castle doctrine business, Liptak glosses over the fact that retreat statutes were a minority jurisdiction rule in any event. In other words, Florida (and similar states) are becoming a bit more like everywhere else where the sky hasn't fallen. So far as the presumption goes, it's really not all that frightening. Is it really so worrisome that a homeowner who will almost certainly be found to be neither guilty or liable is spared the expense of preparing a defense?

UPDATE: Some of the cases used as sob stories for why this law is so horrible don't really push my buttons. Take, for instance, the case of 23-year-old prostitute Jacqueline Galas, who won't be facing a murder charge. Even according to the St. Petersburg Times (in an article not at all sympathetic to Ms. Galas) describes the situation as follows:

Galas, a 23-year-old with a known history of prostitution, said Labiento was a frequent client. She told authorities that on June 11, at his home on Christina Lane, he pointed a .357 at her and threatened to kill her.

She managed to calm him down, and he put the gun on the kitchen table. When the phone rang, he walked to pick it up.

Galas picked up the gun.

When Labiento approached her, she fired the fatal shot.

"She didn't know if he had another gun," Halkitis said, "because she always saw him with two guns."

If the new law creates an additional zone of risk for Johns who invite hookers into their home and threaten them with handguns, well, so what? I think it's safe to say that this risk is easily avoided by the common sense advice that pointing a gun at someone is generally not good for one's health.

From Ms. Galas's point of view, she had a decision to make: risk running from the home, knowing that a suicidal man might take pot shots at her as she escaped to the car, or kill a man advancing on her as she's holding a gun. A law requiring her to take the risk seems a bit harsh.

When I lived in England, I remember being surprised by the requirements to retreat in British law. On the other hand, I also recall that at my college's introductory public safety lecture (given by a female member of the Thames Valley Police), the response given to a gentleman who asked whether he would be liable for injuries to a mugger if (the questioner being a rather big guy well trained in judo, and hence not a likely victim anyway) the villain was injured. She replied, "The law says you probably should run if you think you can do so. On the other hand, I'd remind you of the old saying that 'It's better to be tried by twelve than carried by six.' So don't give that requirement too much weight."

[1]: The concern by Anthony Sebok that the statutory presumption might be conclusive flies in the face of a lot of good Florida constitutional law, at least in civil cases. See, e.g. Public Health Trust v. Valcin, 507 So. 2d 596, 599 (Fla. 1987) ("[A conclusive presumption] violates due process in its failure to provide the adverse party any opportunity to rebut the presumption of negligence"); Straughn v. K & K Land Management, Inc., 326 So. 2d 421, 424 (Fla. 1976) ("The test for the constitutionality of statutory presumptions is twofold. First, there must be a rational connection between the fact proved and the ultimate fact presumed. . . . Second, there must be a right to rebut in a fair manner.") So while the report to which Sebok refers (here) does describe the presumption as "conclusive," it gives no reason for assuming this to be the case, the Florida courts don't make presumptions conclusive by default, and such a presumption seems to be on shaky due process ground.

Once you abandon the idea of a conclusive presumption, Sebok's fears become a bit sillier:

So let's go back to Lisa and Bob. Under the old law, Lisa would have had to prove not only that Bob was in her home, but also that she was afraid for her life (or the lives of others in the house). In reality, that was often easy to do -- usually juries would take the word of a living homeowner over a dead burglar (even if the burglar was unarmed). But now Lisa, in theory, has a free hand to shoot even a plainly unarmed burglar as to whom he or she, in fact, felt no fear at all.

No. Presuming we weigh actual Florida caselaw over some random legislative report, Lisa doesn't have a free hand to shoot anybody. However, the state will have to prove that the burglar was plainly unarmed and that Lisa had no reasonable fear for her life. (Or at the very least, a civil plaintiff will have to do so.) This is difficult to do, and as Sebok notes, juries give homeowners a wide latitude anyway. Hence, the actual effect of the law may be too spare homeowners the expense of a trial, rather than to alter anyone's rights.

May 02, 2004

Negative Words

Criminal Law outlining makes a nice break from Con Law panics. Nonetheless, I think I'm burning out.

Forget the fact that I was seriously considering spending lunch marking up Fiona Apple's Criminal with notation from the Model Penal Code. (Don't look at me like that. It came on the radio while I was working.) No, it actually made me think about English.

You see, I knew a long time ago that there was in fact a concept called ruth: "The quality of being compassionate; pitifulness; the feeling of sorrow for another; compassion, pity" according to the OED. Note that if you have no ruth, you are 'ruthless.'

What I didn't know is that there is a concept called reck, as in you can 'reck of' something: "To take care, heed, or thought of some thing (or person), with inclination, desire or favour towards it, interest in it, or the like; to think (much, etc.) of." Which makes sense, of course, because often in criminal law, you do not reck of something. In which case you are reckless.

I promise, more substantive posts when I'm not studying any longer. Well, OK, this vignette, which has sustained me through the day. I was chatting with a friend on Friday about how busy I was, and said, "My girlfriend is coming over to cook me dinner at eight, which means I only have a few hours to study today before I'm off the clock." And there was quite a lot of stress in my voice.

The lady I was talking to quite properly upbraided me. "Someone who cares for you is coming over to cook you a meal. You're making it sound like an invitation to a firing squad. Is that the person you want to become?"

Quite right. Sure, it's the all-important 1L exams. Except there will always be the all-important something coming up. The bar exam. My first review. The big case. The big promotion. Whatever hoop is coming up the next time. Whereas if it's taken for granted, there might not be a next meal.

In the end, the food was delightful. (I must learn to do interesting pasta dishes.) Meanwhile she showed a marvelous patience in letting me describe the various silliness or absurdities of cases under the criminal law, and helped me clear away some other tasks. So all in all, a good evening. And a nice perspective that has little to do with Perspectives in Legal Thought.

February 15, 2004

The Evil That Men Do

I've spent the last two hours reading my Criminal Law for the week. With no disrespect to the class, I have to say that I'm not about to become a criminal lawyer. The cases are an endless parade of nastiness, which average a level of malice on the order of murder and which (in the case I'm reading now) seems to include kidnap, rape and torture. Others may have a stronger constitution, but I shudder to think what it would do to my psyche to deal with these things as my profession on a regular basis. The reading alone is enough to make one ill...

February 10, 2004

So Was There Intent?

If you were in my CrimLaw class this week, you'll get the joke. If you weren't--well, there's a lot of other entries on this blog for you to read.

A Very Distracted Dancer

January 27, 2004

Wormwood, I Haven't Forgotten You

Dear Wormwood:

Please do not think that I've not heard your plaintive moaning with regards to our correspondence. "Yes, yes, we understand you like the technical aspects of blogging, and RSS is nifty tech. True, true, a postmodernism generator is cute. But you do remember, once upon a time, that you promised to blog about law school, correct? Have you really grown so big-headed that the point of our project has escaped you?" And your complaint has a great deal of merit, for which I have to apologize. My heart really hasn't been in it.

Partially, I think it's just the glumness one gets from attending a law school in a city with a harsh but graceless winter. New York doesn't have the Januarys I've loved in the past: cold, clean snows blanketing the horizon, wind whipping white 'dust' devils over ice-topped lakes.

Winter in the city is summer in the city with the annoyance of cracked lips and muddy boots. Even in a blizzard, it's almost as if snow falls from the sky pre-grey. Walking outside at night is an education in natural selection: oil-black rats are much more visible hopping through drifts of white. Frozen landscapes in the countryside are accompanied by a clean, almost filtered scent to the air, but here winter's only mercy is that large bags of trash left out on the street are too frozen to rot.

As I said, Wormwood, I've been writing about technology largely to spare you in case what I'm suffering is some seasonal depression. No point in inflicting upon you what is probably more vitamin deficiency than rational thought.

With that in mind, what has been happening?

Classes: I think most of my classmates would agree that the classes in the second semester at Columbia are much more theoretical than practical. Of the four major classes, Regulatory State and Perspectives on Legal Thought remind me more of undergraduate lectures in economics and philosophy. Not that this isn't interesting in itself, but it's territory that many of us have covered before. Indeed, my 12th grade government class read Hobbes, Locke, Aquinus, Rawls, Bentham. [1] Even in the face of good lectures or interesting reading, there's a certain 'been there' feeling that keeps me from feeling the same degree of excitement I felt when this was all fresh. (Then again, perhaps I'm temporarily jaded.)

Don't get me wrong: there's a good and solid argument for these courses, and I'm sympathetic to it. Given the role of lawyers in our society, as not only advocates but judges and politicians, it's for the good that we get a broader historical view, and that this is informed by economics. But they're not the 'classic' law school courses: property, evidence, etc. They're more familiar, and they don't inspire the same feeling of terror. (To be fair, that one is a lecture course, and the other rather kind in its Socratic method, goes a long way to explaining this feeling. I imagine that as exams get closer, the trepidation level increases.)

That said, there's still Crim Law and Con Law, with plenty of reading for them, particularly the latter. I'm certain that Con Law will become more engaging as the semester progresses. No matter how important Marbury v. Madison or McCulloch v. Maryland may be, they're difficult to read with any passion. So much seems so settled. [2] Still, these courses remind me more of last term, so that's good.

Grades: Finally all my grades are back. All I can say on this is that overall I'm pleased, and that so far the great law school maxim is true: you do best in the classes you were sure to do worst in, and vice-versa.

Job Search: A task on which I should have spent far more time already, I'm getting a few resumes out the door every day. One thing I'd advise, Wormwood, is that you start the process far more quickly than I did, because otherwise it will become that nagging task that you leave at the bottom of your list, buried under a huge pile of reading. It's just as important, and you should treat it as such. Progress on this front remains hopeful: I've had my share of interviews, and we'll see how it goes.

I hesitate to go further, Wormwood, as already I wonder if the blizzard that is rumoured to be arriving tomorrow and my chronic lack of sleep are combining to make what I'm writing less encouraging than it ought otherwise to be. In any event, I'm glad I did bring myself to mention a few of the things happening here at law school, before this descended into a purely political blog.


[1] Admittedly, my high school government teacher was a bit unusual: he taught a 'great books' curriculum and used Socratic method at least as well if not better than many of my professors at Columbia. But then, I'm not criticisizing the Columbia program as much as I'm explaining why I'm not feeling as engaged as in months past.

[2] At this point, I'd like to break with my common habit of not being overly critical of my courses to be scathing in one respect: the textbook Constitutional Law by Kathleen M. Sullivan and Gerald Gunther should never be inflicted upon any student, anywhere, possibly under 8th Amendment restriction. First, it has all the weaknesses common to the University Casebook Series. The book itself is a physically unhelpful size, nearly 8 1/2" x 11", impossible to fit alongside a notebook on a classroom desk. The formatting of the text is diabolical: it's extremely difficult to figure out what is a heading, a sub-heading, or what is not within a hierarchy of headings to begin with. By the time you get to the fourth or fifth levels, there is no way to keep things straight. A simple table of typefaces would go a long way to curing this defect. If a single effort was made in terms of helpfulness to the student, it certainly doesn't show.

While the weaknesses of the series aren't helpful at the best of times, the writing in Constitutional Law makes no effort at all to be accomodating. Even outside the cases (Con Law will never be for those who like plain language), the wording is unnecessarily prolix (two uses of 'exegesis' is sure to please wordhounds like me, but it's sadistic for a casebook), complicated, and in some cases just downright confusing. For anyone who has the casebook at hand, I put forward the second full paragraph of p. 78 of the 14th edition, a paragraph which would be better structured if the order of sentences within it were reversed. I'll concede that Constitutional Law is almost certain to be cryptic in many respects--no one who ever read Gasparini would accuse Supreme Court Justices of silver-tongued clarity, and their task is often more one of precision--but shouldn't a good casebook help, not hinder this?

Perhaps I'm missing something and the book will grow on me, but after 150 page, it's easily my least favorite casebook thus far.

January 20, 2004

Here, here!

Puddles at 110 West 3rd complains about the poor spelling in my Criminal Law textbook.

No kidding. Let's hope Aspen does better next time--the spelling errors are getting annoying even to me, and I'm generally fairly relaxed about such things.

(In case anyone is wondering about the lateness of the hour of the posts: I have a fever, I've spent most of the day in bed, and I can't sleep at the moment. Upside is, I've finished half my reading for the week. Downside is, I won't remember it.)

Giving The Devil His Due

Why the New York Times Can't Prepare You For the Bar Exam (or your CrimLaw Final) (3)
Anthony wrote: Sean: Your example will be relevan... [more]

Negative Words (1)
JCA wrote: The world is charged with the grand... [more]

The Evil That Men Do (4)
chris huie wrote: Dear sir, I have recently coming ... [more]

So Was There Intent? (1)
David Mercer wrote: I once similarly almost knocked a s... [more]

Wormwood, I Haven't Forgotten You (6)
A. Rickey wrote: Mark: Granted, the paper's nicer... [more]

Here, here! (4)
A. Rickey wrote: That was meant to be the joke, PG. ... [more]

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Signing Off

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Legal Ethics Forum
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the imbroglio
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Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year

The Republic of T.
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links for 2007-04-04
Where You Link is What You Get

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