“How many times a day do you break the law?” That could be the title of a new Harvey Silverglate book, but it’s a concern that was already vexing Americans more than a century ago. [Kyle Graham]
Dangerous sleepers
“Philip Morris Not Liable for Fire Started By Cigarette” That title says it all, except for the part about it taking eight years for the defense to win a summary judgment. [Nick Farr, Abnormal Use]
“Hands off people’s choice of roommates”
The Ninth Circuit properly vindicates the constitutional principle of freedom of association in a clash with housing discrimination law. [Rigel Oliveri, Washington Post]
Stand Your Ground laws, cont’d
A media organization has asked me to take a closer look at the controversy over Florida’s Stand Your Ground (SYG) law, and I’ll be working on that over the next day or two. In the mean time, here are a few links you might want to check out if you’re following the controversy (earlier):
- Florida’s law on justifiable use of force, including the 2005 SYG changes, is here. As usual, there is no substitute for reading the statute if you want to know how it works. Links to other state SYG laws are here.
- Michael Mannheimer at PrawfsBlawg points out that some of the law’s reputed new burdens on prosecutors aren’t in fact new:
First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. …
So what are we left with that distinguishes Florida’s law? Well, obviously there is the “stand your ground” provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. …
- But Mannheimer also points to a more significant difference in the 2005 law, namely that the self-defense justification is couched as an immunity rather than as a defense to be raised at trial. This distinction does accord a significant advantage to some defendants, especially where prosecutors hold a factually weak hand at the outset. “Meg” from Cambridge, among the few constructive voices amid the NYT comments section’s baying mob, makes a similar point here.
- And a number of commentators raise plausible objections to details of the SYG legislation which do not appear relevant to whether George Zimmerman can escape prosecution for shooting Trayvon Martin. Thus Adam Winkler questions whether immunity should extend to situations where the user of deadly force acted in reasonable fear of lethal danger or forcible felony aimed at some third person other than himself (it would appear Zimmerman asserted danger-to-himself, not danger-to-third-parties, at the police station). And Anthony Sebok, writing at the time of the law’s passage, sharply criticizes the law’s expansion of immunity in home and car scenarios, again not at issue in the Martin case.
All of which is by way of clearing the decks for a closer examination of the provisions of SYG that do relate to Zimmerman’s claim of immunity, which will have to wait for a later post.
Michael Kinsley on age discrimination law
The Bloomberg columnist explains his qualms about the law, playing off the Nicholas Spaeth case, in which a 60-year-old lawyer who had achieved a distinguished career in public office was turned down by every law school at which he sought to teach, and is suing many of them. “Was the law ever intended to protect baby boomers in no particular financial distress looking for a suitable capstone to a successful career?” And suits over hiring are of course the exception; rather more often, the law supplies the legal leverage to obtain a larger severance when someone bows out of such a career. I’ve written on the subject here (in Chapter 8 of The Excuse Factory), here, and here.
“Shaken-baby” horror
More evidence that innocent parents are in prison over infant deaths [Emily Bazelon, Slate; earlier here, etc.]
“Reassignment as reasonable accommodation: mandatory or not?”
When employees request reassignment to other jobs within an organization as an accommodation to their disability, is the employer obliged to do so even though other more qualified employees are in contention those same jobs? Or is it enough to assure the disabled employee fair consideration in a competitive process? The federal circuit courts are split on the issue, which could tee things up for Supreme Court consideration at some point. [Jon Hyman]
“Iran remained concerned over human rights violations in Ireland”
Now there’s the UN process of universal periodic human rights review, conveniently summed up in one sentence. [OHCHR via Global Governance Watch]
March 23 roundup
- Tips for those facing vexatious-litigant proceedings [Lowering the Bar; U.K.]
- Credit card arbitration: “Plaintiffs’ lawyers protect their cartel by bringing antitrust suit” [Ted Frank, PoL]
- Just what European business needs: gender quotas for corporate boards [Bader, CEI]
- “Food sovereignty” movement: next, rediscovering freedom of contract? [Alex Beam, Ira Stoll]
- Much-assailed group for state legislators: “ALEC Enjoys A New Wave of Influence and Criticism” [Alan Greenblatt, Governing]
- Symposium on David Bernstein’s Rehabilitating Lochner [Law and Liberty, earlier here and here]
- Because rent control is all about fairness [Damon Root]
Don’t rush to repeal “Stand Your Ground” laws
The New York Times invited me to participate in a “Room for Debate” discussion of Florida’s controversial “Stand Your Ground” self-defense law, and my contribution is here. I elaborate on some of the issues at stake — including the failure of Florida’s violent crime rate to rise as predicted under the law — in this Cato post (& welcome Instapundit, Reihan Salam/NRO, Alex Adrianson/Insider Online, Aaron Worthing, David Codrea readers).