Qwertz

I recently put the kibosh on a plan to do one of these floated by several members of a law school student organization of which I am Treasurer. They are not a good idea for promoting good ideas. ~Q

Only a lawyer can give you legal advice; it is illegal for non-lawyers to engage in the practice of law. If you are intent on fighting a speeding ticket on principle, it will cost you. In all likelihood much more than the ticket. Keep in mind that if you contest the charges, you will be subject to additional, expensive court costs. If you insist on taking it to trial your court costs will balloon. Add to this the necessary costs of hiring a lawyer if you want anything more than a hypothetical chance of winning. Some of your proposed evidence is inadmissible, and some of it (video evidence of yourself driving over the speed limit again) will get you into more trouble. The deck is stacked against you. If it is important to you, you will need counsel. ~Q

More evidence that juries do not achieve justice when society is philosophically corrupt. I hope E.ON doesn't let them get away with it. Fortunately E.ON can still sue. A criminal acquittal doesn't preclude a civil suit. But what is this 10-2 nonsense? Has British law moved away from unanimous jury verdicts? In the US, a hung jury results in a mistrial. I wish there were more details. Specifically, what kind of damage the hippies caused. ~Q

Short answer: Probably not. Longer answer: Ask a licensed attorney. General idea, which should not be taken as legal advice, and is merely a general statement about the law in this area: Many states (including mine) have similar constructions for their speeding laws. They state that it is unlawful to operate a vehicle in a manner unreasonable under the circumstances, and then go on to say that operating a vehicle in excess of the posted or statute-defined speed limit is prima facie evidence of unreasonable operation. This means that all the prosecutor has to prove is that you operated your vehicle at a speed in excess of the legal speed limit in order to win. If he proves this, then you will only be able to win if you can prove, by at least a preponderance of evidence, that despite your speed in excess of the posted limit, you were not operating your vehicle in an unreasonable manner under the circumstances. You have to overcome the presumption of unreasonableness that arises out of the prima facie evidence against you. This is a difficult presumption to rebut. I have seen it done by good lawyers, and even by one very very smart law student defending himself. But other than that law student, I have never seen that defense succeed when argued by a pro se defendant. ~Q

Kirk Cameron and the Divine Banana are old hat. They also did one on peanut butter - the fact that new life doesn't evolve inside peanut butter jars proves god exists. They've been around the Internets for a while now. ~Q

This is a minor thing, but selling a drug that doesn't work isn't fraud. Fraud is a knowing misrepresentation of material fact, reasonably relied upon by another to his detriment. Both civil and criminal fraud require a knowing misrepresentation of fact, and it is that wrongful misrepresentation that constitutes fraud, not the sale itself (though the sale is often offered as evidence of detriment). If selling a drug that doesn't work were fraud, no one would sell drugs, because no drug works for all patients. ~Q

JASKN: You should try subscribing to less stressful feeds, then. <grin> ~Q

We had a thread on LHC and the Sancho suit. I read the complaint. It is scientifically and legally without merit. ~Q

Meh. But the end was precious: "John McCain courted black churchgoers with a large beautiful hat today..." ~Q

Volco, What you describe is not properly called "zoning". there is no "zone" involved. What you are talking about is land use restriction by covenant. It requires horizontal privity of contract and vertical privity of estate. Such restrictions apply one by one, property by property; not to anything that could be called a "zone". Also, they can be defeated by private action - landowner may purchase the rights back from neighbors. This is as it should be. The people who decide on land use restrictions are, ultimately, the buyer and the seller. Property subject to a land use restriction is only subject to such restrictions as are on the deed to that property. Thus the restrictions on a piece of property do not extend beyond the borders of that property. Your neighbor might have an identical restriction in his deed, but the restrictions are as separate as the properties. ~Q

It is not the role of government to eliminate hypothetical threats to individual rights. It is the role of government to protect individual rights; that is, to protect them from actual harm. The factory spewing dangerous chemicals into the air does not harm anyone or violate anyone's rights. The government has no right to interfere. When those chemicals actually cause or actually threaten to cause demonstrable harm, the law of tort (for personal injury) or nuisance (for injury to property) kicks in to govern the suit after the fact. Zoning is a means of protecting against hypothetical threats to individual rights. There is no moral justification for such government action. ~Q

There is a big difference between pollution and an accident. Accidents would be addressed under negligence. ~Q

Aha. That explains it. It's a short, not a feature. And it is MPI's very first non-documentary production. Based on MPI's release track record, it won't see major theatres. Other MPI shorts (e.g. the Free Market Cure series; The Libel Tourist) have been officially released on the web following a festival premiere. Looks interesting, though. The trailer succeeds in making me want to see it. ~Q

Eeee. I don't think it's a good idea to start treating pollution as assault. Pollution should be a property issue, not a personal issue. The students do not have any right to the property - it is owned by the school. Pollution by the factory might be a violation of the school's property rights (in nuisance), if the school can show harm as a result of the pollution. The students don't factor into it. If they are harmed by the pollution, they may sue the school. Not the factory. ~Q

The answer is: yes, if A does it correctly. These are called covenants, and they are not zoning. They will be enforced by courts so long as enforcement does not violate rights (e.g., racially restrictive covenants will not be enforced). In order to do it correctly, A doesn't sell B the right to build anything over 2 stories on the property, and sells the right to enforce the covenant to all the other properties he carves out of his 30 acres. Such covenants are said to run with the land, so that the bind the owners of the land, whoever they may happen to be. Responding to other stuff: Property law recognizes a few rights that restrict what neighbors can do with their property. They are very limited: lateral and subjacent support. The common law used to also recognize the free circulation of air and light, but it no longer does. The right to lateral support means your neighbor cannot dig a gravel pit next to your property if the gravel pit will remove support from your property, threatening or causing collapse. The right to subjacent support means that if you sell the mineral rights in your land to a coal miner, he cannot mine out the coal in such a way as threatens or causes collapse. These rights are special, in that they give rise to strict liability, and there is no requirement of a covenant between adjacent landowners or an express encumbrance on a mineral deed in order to give them effect. Common law also recognizes nuisance: intentional interference with the use and enjoyment of land owned by another. It requires interference with the property: sound waves can be nuisance, but erecting a tall building that blocks the sun cannot. It's like trespass, except for things instead of people, and it actually has to cause a disruption (whereas trespass by a person does not). ~Q

My sister asked me this just two weeks ago. The way she put it was: If you could have a song that would play whenever you walked into a room, what would it be? As a joke, I said 「新仁義なき戦い」 by 布袋寅泰, popularized in the US as "Battle Without Honor or Humanity" from Quentin Tarantino's Kill Bill Vol. 1 soundtrack. Then I thought of the instrumental version of Santa Esmeralda's rendition of "Don't Let Me Be Misunderstood," also from Quentin Tarantino's Kill Bill Vol. 1 (although the vocal version on the soundtrack CD is not so good, on account of the obnoxious vocals). Then I thought of "Sette Note in Nero" by Vince Tempera, for the score of the 1977 Italian horror film of the same name, again popularized in Kill Bill Vol. 1. Then I realized that I had just watched Kill Bill Vol. 1 a few nights previous and that maybe I just liked a lot of the music in it. So next I thought of "The Promise" from Michael Nyman's score for Jane Campion's masterwork, The Piano, starring Holly Hunter who learned to play Nyman's difficult piano score for herself instead of using a hand double. Sticking with Nyman, I next considered the main theme from Gattaca, "The Morrow." I realized then that I was seriously avoiding vocals, and vocals are, I think, important to calling something an "anthem." I don't listen to a lot of vocal music because the vocalists nowadays sing badly, sing crap, or both. I briefly considered Bonnie Tyler's "Holding Out for a Hero" and Paula Cole's "Where Have All the Cowboys Gone?" but rejected them as altogether too campy. So it turns out that, of all the things I was willing to consider, the first - 「新仁義なき戦い」 - was probably the best, even though it has no vocals. If I had to have a backup, it would be "The Morrow" from Gattaca because of how much that particular film means to me. ~Q

When you say "justice system," you seem to be referring to the criminal justice system. Do you mean to distinguish between the civil and criminal justice systems, or are you arguing for a fusion of the two? Our civil justice system is almost entirely restorative, with the exceptions of a) punitive damages and pseudo-criminal cases where the state (or other government body) is the plaintiff, neither of which I think are appropriate. Our criminal justice system is almost entirely retributivist, with the exception of the occasional court-ordered restitution in certain money-related crimes, something I also do not think is appropriate, at least where the plaintiff has a civil remedy. The two systems work together because they overlap (at least as to proper crimes; victimless crimes do not have an analogue in the civil system), and the criminal standard of proof is high enough to subsume the civil suit, so that res judicata will bar relitigation of guilt at a subsequent civil suit brought by the victim. Do you think the systems should be fused? Or should the criminal justice system, as it exists, be entirely eliminated? I'm very interested in this topic, because after two years of law school, I am still unable to come up with a coherent philosophical basis for distinguishing between civil wrongs and criminal wrongs. I do have some ideas about it, but I'd like to hear more about what you have to say before I try to set them out. ~Q PS: Qwertz is now a patron. Woo hoo!.

Yes, under Rule 12( of the Federal Rules of Civil Procedure, the court may not consider evidence beyond the pleadings when ruling on a motion to dismiss for failure to state a claim upon which relief may be granted. If one party or another attaches additional evidence to a memorandum in support of or in opposition to a motion to dismiss, the court may consider it (discretionary), but if the court chooses to consider it, it must (mandatory) convert the motion to one for summary judgment under Rule 56(, which is a different standard and has a different effect on the case. Courts are very reluctant to convert 12((6) motions into 56( motions before discovery is complete. The show will be evidence later, for substantive motions or for trial, but not for this procedural matter relating to the sufficiency of the pleadings. ~Q

Claiming it was lost when in fact it was not lost would be a lie. You haven't provided circumstances that would morally justify such a lie, and paying for the book would still be obtaining a value by fraud. ~Q

Ah. I just remembered that post I made bringing up eggshell skull in the other thread, and remembered I never actually explained the doctrine. Eggshell skull says that if you do a wrongful thing, you are liable for all the damages that ensue, even if the victim was especially sensitive. Thus, if you batter someone in a way that would not break a normal person's arm, but your victim, unbeknownst to you, had weak bones, you still pay for the broken bone, even if the extent of damage wasn't foreseeable before you battered the victim. Applied to psychological harm, the doctrine would hold a tortfeasor liable for the full extent of psychological harm, even if the tortfeasor had no idea the victim was so psychologically fragile. But only if the tortfeasor actually did something wrong that actually caused some injury. ~Q Ooh, and I meant to add: negligent infliction of emotional distress also exists as a cause of action, and is even less favored than IIED. I'll see if I can look up some stuff on it, since it is really quite rare and I don't remember much about it from first semester torts.

No. Because it isn't his property. He did not create or earn it. Chattels aren't like real property (where anyone can claim unowned property if they do it correctly). Absconding with the book would be an immoral taking of unearned value. ~Q

You're absolutely right about the real problem being the CWA itself, and its total disrespect for property rights. But our legal system prohibits questioning well-settled law, and the constitutionality of CWA, w/r/t its regulation of designated wetlands, is well-settled law, which only the Supreme Court can correct (since it settled the law in the first place). My point isn't that this situation is any less wrong, but merely that the problems run deeper than the article Gus cites suggests. ~Q

Comments like this smack of unfortunate naivité about liberal academia. In this case, however, the instructor at issue is not smart enough to be a professor at a decent university. He is smart enough to be an adjunct instructor at a state university. But no matter. Kevin's comment is merely an application of the principle "let reality be the final arbiter of truth" to the facts of this situation. ~Q

Re: Jury selection in long trials -- Yes, it is very likely that professionals will be unable to sit for a long jury. However, the Constitution guarantees a jury drawn from a representative pool, not a representative jury. I don't think the jury-related arguments the article makes are relevant. Juries are supposed to be common-sense rational finders of fact. The idea of intentionally placing specific kinds of people (e.g., people of a certain background/age/gender/race/profession/education/income/&c.) on a petit jury runs counter to that. And the idea that jurors who are compensated for their time by the government will be less likely to acquit is absolute bull, based on my personal experience with juries and discussing this exact issue with judges, jurors, and attorneys. Most jurors who get seated on a petit jury take the role very seriously. I do not think juries, as such, are bad; even in long cases. Hard cases are different. Where there is a factual question, or in some cases a hybrid question of law and fact, that is epistemologically complicated, e.g., the jury is asked to decide between two competing scientific theories and then evaluate the evidence under their chosen theory, there is a problem. Because the jury is asked to choose a theory based solely on the evidence at trial and then to evaluate the evidence at trial under that theory, there can be no rational basis for their decision. Cases like Daubert and Markman have helped reduce these situations immensely, but courts need to recognize what the epistemological problem is, rather than avoid them on the basis of "complexity," as they have been doing. The overriding problem with the jury system today is the culture. Bad philosophy. A few weeks ago, I saw a juror talking with a judge after a criminal case had been dismissed because the state failed to present enough evidence that the jury could have convicted. She told the judge that she couldn't have convicted on the evidence presented because the eyewitness testimony presented was "just his [the witness'] perception" and had nothing to do with reality, because perception is unreliable. And just today, in a high-profile rape case, defense counsel asked the forensic witness whether it was "possible" that, during the time between the alleged incident and the time the DNA evidence was collected, someone "could have deliberately placed" the blood at the scene to frame his client. It was an arbitrary suggestion - one for which the defense has no evidence at all, and yet the witness testified that "anything is possible." As long as the culture accepts these kinds of epistemological fallacies, any judicial system can only ever approximate justice. ~Q

The "wetlands" issue didn't go unquestioned. It was reviewed by the jury, the trial court, and the Court of Appeals. The jurors found, based on the evidence presented at trial, that the lands in question met the statutory jurisdictional definitions beyond a reasonable doubt, and the trial and appellate courts both found that there was enough evidence presented that the jury could reasonably have come to that conclusion. The idea that courts should accept a wetlands designation unquestioned comes from the dissent in Rapanos. The Court of Appeals made reference to the Rapanos dissent, but didn't hang their hat on it. Also, under the Rapanos dissent, it is the Army Corps of Engineers' determination that is binding, not the EPA's. I left a longer comment addressing this issue over at Gus' blog. ~Q