July 29 roundup

by Walter Olson on July 29, 2014

  • Say nay, laddie: Unsettling new Scotland law will assign each child state interest guardian (“named person”) [BBC, Scottish government, Josie Appleton/Spiked Online, opposition group and another] More: Skenazy.
  • Why Judge Alex Kozinski doesn’t like jury nullification [Reason interview last year]
  • “Asbestos Ruling Boosts Transparency —- and Threatens Plaintiffs’ Attorneys” [Paul Barrett, Business Week, on Garlock ruling]
  • Winona, Minn. town cap on rental conversions violates property owners’ rights [Ilya Shapiro, Cato]
  • Challenger claims Ohio attorney general’s hiring of debt collection firms amounts to pay to play [Columbus Dispatch]
  • Mixed verdict in Philadelphia traffic court prosecutions [Inquirer, ABA Journal, earlier]
  • Save the date! Cato’s annual Constitution Day returns Wed., Sept. 17, with panelists and speakers like P.J. O’Rourke, Nadine Strossen, Tom Goldstein, Judge Diane Sykes, Roger Pilon, and a host of others [details]


1 ras 07.29.14 at 12:31 am

Kozinski’s answer was a non sequitur. Jury nullification is not about writing new laws, it literally means nullifying existing ones, at least for a single trial. Did I miss a deeper meaning in his answer or something, or was he just venting somewhat incoherently?

2 En Passant 07.31.14 at 3:10 pm

Yes, it was a non sequitur.

He forgets that an instruction permitting nullification requires that the jury first find the law under which defendant is charged to be unconscionable. Then he twists that misunderstanding into the jury believing they can convict defendant even if they believe he didn’t violate the law, just because they don’t like the defendant.

3 Hugo S Cunningham 07.31.14 at 4:32 pm

Jury nullification– partially in reply to Alex Kozinski

Many of us have our lists of “good” and “bad” jury nullifications, eg

Colonial era:
defense of truthful speech (Zenger case)
rejection of customs prosecutions

since 1787:
rejection of Fugitive Slave Act
rejection of Alcohol Prohibition
rejection of other drug prohibitions
rejection of death-with-dignity prosecutions (A series of prosecutions of Dr. Kevorkian were rejected, until he became a publicity-crazed kamikaze on national television.)

libel verdicts against truthful political speech the jury disagrees with (partially shut down by USSC’s NY Times v. Sullivan decision)
refusal to convict KKK terrorists up until 1980s.

Posner’s horrors focus on offensive nullification (convicting an innocent person), while the public are readier to support defensive nullication (acquitting someone who violated an unjust law).

The most important jury nullification, however, is almost never discussed: the courts’ unworkable insanity-defense theory. In a peacetime society like the USA today, virtually all criminals are mentally impaired in some way. Rather than turn criminals loose to victimize again, however, juries refuse to accept an insanity defense. The courts quietly go along with this subterfuge, except in death penalty cases.

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