Chronicling the high cost of our legal system
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Because the important thing is to show that lawmakers have their hearts in the right place, which means not lingering over doubts about the constitutionality of the restrictions on speech or the implied rebuke to double-jeopardy norms or the nature of the delegation of federal power to tribal courts. Who cares about that stuff anyway when there’s a message to be sent about being tough on domestic violence?
P.S. In case you wondered, the U.N. is in favor.
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A new Massachusetts law that went into effect last year allows neighbors and other unrelated complainants to seek restraining orders against each other, a legal remedy formerly confined mostly to use between family members. But there’s been a surge of filings seeking the new “harassment prevention orders,” and according to the clerk of the Boston municipal court, the law has wound up empowering “every kook in the world” to “file a harassment order against their neighbor or landlord or someone who just annoys them.” Among cases: “One man took his neighbor to Malden District Court for allegedly blowing leaves on his property, and a woman in Boston Municipal Court insisted that actor Chuck Norris used high frequency radio transmissions to harass her at home.” [Boston Globe]
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A Florida man was arrested for violating a protective order prohibiting contact with his estranged spouse after he attempted to “friend” her on Facebook [Slatest via Josh Blackman]
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“Jane Doe” has sued a Missouri company, Foxtrax Vehicle Tracking Inc., in a Wisconsin court, saying it aided and abetted her domestic partner in tracking her whereabouts, thus enabling him to commit assault and battery on her. [Milwaukee Journal-Sentinel via Masnick/TechDirt and Siouxsie Law]
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Everyone else in the country has been talking about it, we may as well too. [Hanna Rosin, Slate via WSJ Law Blog] Another view: Cathy Young, Real Clear Politics.
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That’s a more controversial proposition than you might think; the Connecticut Supreme Court was split 5-2 in agreeing that a hearing was necessary to confirm the validity of a protective order against a defendant who has been accused but not convicted. The case pitted the state ACLU against the Connecticut Coalition Against Domestic Violence. [Connecticut Law Tribune via Amy Alkon]
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Such is the contention of Yoichi and Ayisha Shimamoto, who are suing UAL “for ‘negligently’ overserving alcohol during a flight from Osaka, Japan, to San Francisco, saying the carrier’s drinks fueled the domestic violence involving the two shortly after their plane landed.” (Julie Johnsson, “Couple accuse United Airlines of overserving husband, causing him to beat wife”, Chicago Tribune, Dec. 17).
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Jurists behaving badly dept.:
According to the commission report, [Niagara Falls, N.Y. city court judge Robert] Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. … After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.
The New York state Commission on Judicial Conduct removed Restaino from office Tuesday, calling his action “a gross deviation from the proper role of a judge.” (Janine Brady, “Panel gives judge a ringing rebuke”, CNN, Nov. 28; Elefant, Nov. 28).
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Something unusual in the Yale Law Journal: an article that takes a not entirely enthusiastic view of the continued spread of domestic restraining orders. Under such orders (some earlier posts) allegations of spousal abuse, whether or not eventually proven at trial and whether or not withdrawn by the accuser, can trigger highly burdensome sanctions against the accused spouse, including a prohibition on entering his or her own home. Harvard Law assistant professor Jeannie Suk says the process can amount to “de facto state-imposed divorce” and greatly increases the power of the state to reach into and reorder family life, sometimes against the will of both parties. (“Criminal Law Comes Home”, Oct., abstract leads to PDF of full version)(via Pattis). In response, a second law professor argues that current legal trends appropriately treat alleged domestic violence as a crime against the state and not just against the nominal victim, and that it is wrong to place too much emphasis on accusers’ supposed right to forgive abusive conduct (Cheryl Hanna, “Because Breaking Up Is Hard To Do”, The Pocket Part, Oct. 12)(& welcome Ron Coleman/Dean Esmay readers).
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Via R.J. Lehmann (Mar. 27), here are some figures indicating that the sum total of the alleged costs of other people’s bad behavior may well exceed the total sum of money in existence. To be more specific: start by adding up the claimed health expenses, productivity losses and other social costs of such indulgences as alcohol ($185 billion a year, it’s said with spurious precision), overeating ($115 billion), gambling ($54 billion), and so forth. Then throw in categories such as the costs of crime, time wasted by employees visiting web sites and watching sports events, and so forth. By the time you’re done, Lehmann says, you can “come up with a grand total of $7.39 trillion – well in excess of the $6.70 trillion that actually exists” — at least if you’re willing to include a few dodgy entries in the catalog, such as taxes. (Thomas C. Greene, The Register (UK), Mar. 16).
It’s not hard to see the relevance of this line of logic to themes often dealt with in this space. In the utopia of the litigators we would succeed in charging the social costs of our overeating to the food business, the costs of our gambling to the casinos and lotteries that led us on, the costs of 9/11 to assorted banks, airlines, building owners and Saudi nabobs, the costs of street crime to deep-pocketed entities guilty of negligent security, and so on and so forth for the costs of auto accidents, pharmaceutical side effects, failure to learn in school, domestic violence, etc. It would not be surprising if the sum total of all the different injuries, insults and indignities dealt out to the human race, if monetized at the rates prescribed by advocates, handily exceeded the sum total of wealth on hand to pay, even were the whole wealth of the world placed at the courts’ disposal.
The official recruitment of cosmetologists as informants (and as intermediaries steering customers to approved “domestic-violence” programs) continues, with programs reported in Florida, Idaho, Oklahoma, Virginia, Ohio and Maine, as well as Nevada and Connecticut (see Mar. 16 and Mar. 29, 2000). It’s not just black eyes or lacerations that the salon employees are supposed to be on the lookout for, either. A customer’s protestation that “he would not like that”, as a reason to turn down a new hairstyle, might be a sign of “controlling behavior” that needs watching. (“Salons join effort to stop violence”, Bangor Daily News, Jun. 15) (via van Bakel).
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Colleen Nestler, a resident of Santa Fe, N.M., alleges that late night TV host David Letterman has communicated with her in coded words in his broadcasts, has tormented her and driven her into bankruptcy, and has promised to marry her. So far, nothing terribly unusual as regards the problems celebrities face from fixated fans; Letterman himself long endured the attentions of a female stalker suffering from mental illness, Margaret Mary Ray, who repeatedly was arrested for entering Letterman’s property. This time, however, the law has taken a different attitude: according to the Santa Fe New Mexican, Judge Daniel Sanchez of the district court in Santa Fe late last week granted Ms. Nestler a temporary restraining order against Letterman, which the entertainer’s lawyers are now attempting to get lifted. Ms. Nestler’s application for the order
requested that Letterman, who tapes his show in New York, stay at least 3 yards from her and that he not “think of me, and release me from his mental harassment and hammering,” according to the application.Nestler’s application was accompanied by a typed, six-page, double-spaced letter in which she said Letterman used code words, gestures and “eye expressions” to convey his desire to marry her and train her as his co-host. Her story also involves Regis Philbin, Kathie Lee Gifford and Kelsey Grammer, whom Nestler says either supported or attempted to thwart her “relationship” with Letterman, according to the letter….
When asked if he might have made a mistake, Sanchez said no. He also said he had read Nestler’s application.
(Jason Auslander, “Letterman lawyers: End Santa Fe claim”, Santa Fe New Mexican, Dec. 21) Discussion: Volokh, TalkLeft, and a hundred others. On judges’ over-readiness to grant restraining orders in cases of alleged domestic violence and its threat, see this set of links. Updates Dec. 23 (discussion); Jan. 2 (judge lifts order).
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In San Mateo, Calif., Katina Britt was nearly jailed a few days ago for her refusal to testify against the ex-boyfriend who allegedly battered her. (He was convicted anyway and the charges were dropped.) Under present California law, sexual assault victims cannot be jailed for refusing to testify against their attackers, but domestic violence victims can. Chief Deputy District Attorney Steve Wagstaffe said the court order compelling Britt to testify was “for her own protection”. (Malaika Fraley, “Ultimatum in abuse case: Testify or go to jail”, San Mateo County Times, Dec. 10; Michelle Durand, “Assemblyman to back abuse testimony bill”, San Mateo Daily Journal, Dec. 20; more coverage via Google News). Wendy McElroy wonders: “How has the issue of DV drifted from its early roots of empowering ‘victims’ and encouraging their voices toward imprisoning them and coercing their testimony?” (“Don’t jail domestic violence victims”, Enter Stage Right, Dec. 19).
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Welcome news from New York’s highest court: “A battered woman’s failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion.” (John Caher, New York Law Journal, Oct. 27). Four years ago (see “Battered? hand over your kids”, Jul. 12, 2000) the New York Times reported that city child protection authorities were removing children from homes in which one parent was found to have committed an act of domestic violence on the other, including such actions as slaps and shoving. “The rules encourage victims of abuse to conceal it, fearing their kids will be taken from them if they tell medical or social workers.” Update Dec. 19: New York City agrees to change policy.
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