Quotulatiousness

July 1, 2011

Canadian and US judicial differences

Filed under: Cancon, Law, Politics, USA — Tags: , , — Nicholas @ 11:49

Conrad Black, who is now very well-versed in the oddities of American court practices, contrasts them with their Canadian equivalents:

This brings me, most happily, to the subject of Canada Day, 2011. I regret to have to write that I have also discovered in this mundane Odyssey that Canada, too, has its share of obtuse judges. But it does not actively encourage pre-trial media lynchings; requires a plausible test before charges are laid and not just the mockery of the grand jury; has reasonably even and impartial procedural rules; the defence speaks last in trials; acquittals are not immediately reversible for sentencing purposes; few prosecutors revert to the private sector in Canada, and very few become politicians; and most judges are not, as they are in the United States, ex-prosecutors. And in Canada, the prison and prosecution industry is not a Frankenstein Monster that incarcerates 1% of all adults as in the United States (only about one-sixth of that, in Canada), or more African-Americans of university age than there are in university, as in the United States. And in Canada, the number of people with “a record,” (even if for impaired driving 10 years ago, or being disorderly at a fraternity party 30 years ago), is not 15% of the entire population, as it is in the United States (47 million people, none of whom is eligible, for that reason, to enter Canada, even on a family holiday to look at the Calgary Stampede).

Canada is not a prosecutocracy amok in a carceral state, and the United States, no matter how fervently tens of millions of Americans may stand, hand over heart, singing their splendid anthems on Monday, is. Above all other things, if I were in Canada this weekend, and a Canadian citizen, I would celebrate the country’s good fortune in having 33 million relatively well-adjusted people in a mighty treasure house of a country, a steadily more geopolitically enviable condition as the developing world, led by China, India, Indonesia, and Brazil, four of the five most populous countries, with 40% of the world’s population, consistently put up six to 10% annual economic growth rates, and buy Canada’s resources. Canadians can also celebrate their good fortune that there was never an economic justification for slavery in Canada; that its only close neighbour has not been militarily aggressive, and that it has the official languages of two of the world’s very greatest cultures.

June 30, 2011

Does exposure to porn increase the incidence of rape?

Filed under: Law, Media — Tags: , , , — Nicholas @ 14:54

In brief, it appears not:

But while theorising is all very well, it is necessary occasionally to fine-tune such theories by looking at the empirical evidence. And the most obvious fact about porn and rape is that reported rape incidence — at least in the United States, where a National Crime Victimization Survey takes place every year — has been falling in recent decades as porn becomes ever more available.

[. . .]

Now yes, it is absolutely true that correlation and causation are not the same thing. But at first glance we’d have a hard time claiming that the greater availability of porn led to more rapes: simply because there are fewer rapes reported while there’s definitely more porn.

[. . .]

In D’Amato’s paper, he uses Freakonomics-style statistics (one of his colleagues wrote the Freakonomics abortion and crime paper with Levitt) to try to tease out evidence of something more than just correlation.

What he found is that the lower the internet penetration in 2004 in a US state, the higher the rape rate had risen and that the higher the internet penetration, the lower rate had fallen.

We expect, for those societal reasons, that the reported rape rate will have risen over the time period. And where there’s no or limited internet access, it has. Where there is high internet access it has fallen, the fall being greater than the general societal rise.

Thus we have an empirical connection between internet access and lower rape figures. Whether it’s porn or not is a different matter: they could all be playing Second Life instead. An unlikely way to bet though really.

June 29, 2011

Canada’s constitution has the “notwithstanding” clause . . .

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 16:42

. . . but that’s just a loophole compared to the utter legal devastation contained in the American constitution’s Commerce Clause:

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers — all other powers, such a the police power, reserved for the people and the states — that the Commerce Clause generally is a “Take-Back” clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or “necessary and proper” to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it “affects interstate commerce,” which, as is often pointed out, applies to everything.

Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect — a child; a future one-man army of economic activity, labor, investment, and consumption — and even if you don’t, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.

The US federal government clearly does believe that the Commerce Clause is the trump card in the deck. You play that and it doesn’t matter what the other cards may be: you win.

If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence —

Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?

In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all — why did no one think to elaborate upon it?

Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?

From the comments, where it’s been pointed out that if this decision is upheld, the government can mandate how many children you have to have:

Bob Saget: If you cannot afford a wife for bearing the Federally mandated minimum number of children, one will be appointed for you.

June 28, 2011

QotD: Combining stupidity, smugness, and the illusion of legal process

Filed under: Africa, Bureaucracy, Law, Military, Quotations — Tags: , , — Nicholas @ 12:13

Brendan Behan once said there is no situation so bad that it cannot be made worse by the arrival of a policeman. Well today there is no war so bloody that it cannot be made bloodier still by the intervention of the ICC. From the luxurious environs of The Hague, cheered on by liberals who get a cheap political thrill from seeing white lawyers stand up to evil Africans, the ICC has today issued an arrest warrant for Colonel Gaddafi, one of his sons and his security chief. This act of international moral posturing, designed to make the ICC look serious and superior, is likely to intensify the stand-off in Libya.

On one level, the issuing of the arrest warrant just seems barmy. These ICC bigwigs seem so removed from the real and messy world of politics and warfare that they seriously imagine it is possible to bring a war to an end by press-releasing a piece of paper saying: “Wanted for crimes against humanity: Muammar Gaddafi.” They seem to have confused the war in Libya with a nightclub brawl in Camberwell, imagining it is possible to resolve the whole miserable shebang by demanding the arrest of a few of the ringleaders. Once upon a time only spotty sixth-formers in turgid classroom discussions about conflict resolution would say things like “Hey, let’s just arrest the evil dude!” Now such political naiveté has been institutionalised in the ICC.

Yet on another level, the ICC’s game of cops and robbers, cowboys and Indians, the Enlightened West against the Dark Continent, can have unpredictable, potentially dangerous repercussions. If earlier instances of ICC interference into African conflicts are anything to by, the impact of the lawyerly intervention into Libya is likely to be twofold. Firstly it will further entrench Gaddafi and his forces, convincing them that it would be better go down with all guns blazing than to end up in The Hague alongside Karadzic and various other hated evil figures. And secondly it will remove the political initiative from the rebel forces in the east of the country, sending them the ultimately debilitating message that they would be better off waiting for outside forces to come and rescue them — in this instance, white, wig-wearing moral crusaders from the ICC — than to realise for themselves the liberation of their country.

Brendan O’Neill, “There is no war so bad that it cannot be made worse by the intervention of the ICC “, The Telegraph, 2011-06-28

When headline writers go feral, or a typical day at The Register

Filed under: Law, Media, USA — Tags: , , — Nicholas @ 09:44

I mean, really. How else can you describe an article headlined like this:

Drunken bust-up woman sprays cops with breast milk
Ohio jub juice bandit faces substantial rack of charges

An Ohio woman is facing a substantial rack of charges after allegedly getting drunk at a wedding reception, assaulting her husband and then spraying cops with breast milk.

Stephanie Robinette, 30, (pictured) was cuffed in the early hours of Saturday morning outside a banqueting hall in Westville. Delaware County sheriff’s deputies responded to a call that she was having a bit of a ding-dong with her other half.

Having allegedly whacked her husband various times, an “intoxicated” Robinette locked herself in their car, and refused to get out when officers moved in with the cuffs.

According to the Columbus Dispatch, Robinette loudly declared she was a breastfeeding mother, “removed her right breast from her dress and began spraying deputies and the car with her breast milk”.

The Daily Mail tries to drum up moral outrage (again)

Filed under: Britain, Law, Media — Tags: , , , — Nicholas @ 09:23

Patrick Hayes views with disdain the latest Freedom of Information trolling exercise performed by the Daily Mail in an attempt to spice up their “news” coverage:

Is Britain in the grip of a hidden crimewave? Are thousands of crimes being committed each year by feral youths, which the police know about but are powerless to prevent? Is Britain being stalked by troublemaking toddlers, committing vandalism with no comeuppance for their ‘crimes’ because of their tender age?

In a word, no. Though you’d never know that by reading yesterday’s hysterical news reports. ‘As many as 3,000 criminals, including rapists, robbers and burglars, escaped punishment last year because they were too young to be prosecuted’, declared the Daily Mail. The paper published the results of a pretty shameless trawling exercise, having placed Freedom of Information (FOI) requests to police forces around Britain about underage crime. It managed to dredge up various accounts of childish ‘criminal’ activity, including a ‘rape’ in Levenmouth committed by two eight-year-old boys, a ‘kidnapping’ in Rochdale also carried out by an eight-year-old, and a ‘spate of vandalism’ conducted by a three-year-old boy and four-year-old girl.

The Mail received responses to its FOI request from 30 out of 52 police forces, discovering that ‘1,605 crimes were blamed on someone aged under 10 in the last financial year’. Guestimating how many crimes might have been committed by kids in those parts of Britain policed by the 22 forces that did not respond to its requests, it came up with a total of 3,000 offences. And rather than caution its readers that these figures only cover accusations of a crime, rather than guilt having been proven, the Mail implies its findings could be the tip of the iceberg: ‘Many police forces do not even record crimes where they believe youngsters under 10 have been responsible.’

June 27, 2011

“A substantial expansion of the FBI’s power to monitor innocent Americans”

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 12:06

Julian Sanchez on the changes to the FBI’s domestic rulebook:

The change in the rules will remove a crucial deterrent for any of the 14,000 FBI employees who might be tempted to use their government access to all kinds of databases for improper personal ends, or to flout rules prohibiting religious, racial and political profiling. This is no hypothetical concern: Shortly after the new guidelines were announced, a former CIA official alleged that the Bush administration had asked the spy agency to dig up dirt on academic and blogger Juan Cole, whose fierce criticism of the war in Iraq earned the ire of the White House.

The new manual will also give agents who have opened assessments greater authority to employ physical surveillance teams. If the FBI thinks you might make a useful informant, agents will be free to dig through your garbage in hopes of finding embarrassing trash that might encourage you to cooperate. And they will be able to do this without first having to show any evidence that you are engaged in wrongdoing.

The FBI, predictably, is downplaying the changes in its rulebook, characterizing them as “clarifications” and “tweaks.” But all these tweaks add up to a substantial expansion of the FBI’s power to monitor innocent Americans — power Congress wisely curtailed in the 1970s in light of the bureau’s ugly history of spying on political dissidents. The law set broad limits on the most intrusive investigative techniques, such as wiretaps, but the details of who could be investigated and how were largely left to executive branch regulation. As statutory restraints on surveillance have been peeled back over the last decade, Americans have been asked to rely more than ever on those internal rules to check abuses.

June 26, 2011

Skype’s PR problem over their sneaky options plan

Filed under: Economics, Law, Technology — Tags: , , , , , — Nicholas @ 13:35

Over my career in the software industry, I’ve worked for several companies who provided a stock option plan as part of their employee compensation scheme. Exactly one of those companies’ programs ever provided me with any actual tangible benefit (the company was bought, and the options were bought back at market rate). It netted me a couple of thousand dollars. Options may have been a way to get rich in the early 1990s, but they’re pretty much a longshot lottery ticket now.

Skype has found a sneaky way of making that longshot chance even more unlikely to pay off:

Employees aren’t even able to keep the vested portion of their stock options. The vast majority of stock options granted to startups have a vesting period, typically four years, with chunks of those options becoming vested during that four year (or whatever) period. If options are vested you can exercise them, pay for the stock and own that stock. At least that’s the way things have been done over the decades.

Skype did things differently. With Skype stock options the company has the right to not only terminate unvested options, but also vested ones. And any vested options that you’ve exercised (meaning you paid cash for them) that were turned into actual shares could simply be bought back by the company at the price you paid, regardless of their current value.

Turning your potentially lucrative stock holdings (if the value was higher than your strike price) into a mandatory zero-interest savings account. Nice.

The fact that Skype adopted this plan in the first place isn’t in itself “evil.” But they’ve done two things wrong from what I can tell.

First it appears that employees had no idea what they were signing and they probably expected it would be a normal stock option type deal that everyone in Silicon Valley has done for decades. If Skype wasn’t crystal clear with them, and explained it in normal human language that they understood, then these employees were intentionally misled. Skype had an incentive to make things unclear, because employees would demand far more compensation if they had understood. The fact that employees are so surprised that this is happening suggests that they didn’t understand the agreement. This is what lawyers call fraud.

The second thing Skype did wrong was not to waive this clause with the looming acquisition. The company can deny all day long that they fired these employees for cause, not to save a few dollars on stock options. But the appearance is the exact opposite.

Product warnings

Filed under: Humour, Law, Technology — Tags: , , , , — Nicholas @ 11:46

Many weird and whacky warnings get attached to products as a result of product liability concerns, but some of them must be generated without legal prompting:

Warning #2: Booze Blues

Seen on a Terrestrial Digital outdoor antenna: “Do not attempt to install if drunk, pregnant, or both.”

Of course, if you’re drunk and pregnant, you probably have bigger problems.

Warning #3: Three-Dimensional Danger

Seen on a Samsung 3D TV disclaimer: “Pregnant women, the elderly, sufferers of serious medical conditions, those who are sleep deprived or under the influence of alcohol should avoid utilizing the unit’s 3D functionality.”

Man, those drunk moms-to-be just can’t catch a break!

Warning #4: Options, Options

Seen on a computer software package: “Optional modem required.”

The writer’s mandatory English language class, incidentally, was not completed.

June 25, 2011

Reason.TV reporter arrested for “disorderly conduct” and “trespassing”

Filed under: Government, Law, Liberty, Media — Tags: , , , — Nicholas @ 11:15

June 24, 2011

QotD: Defending the indefensible

Filed under: Books, Law, Liberty, Media, Quotations — Tags: — Nicholas @ 12:09

If you accept — and I do — that freedom of speech is important, then you are going to have to defend the indefensible. That means you are going to be defending the right of people to read, or to write, or to say, what you don’t say or like or want said.

The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don’t. This is how the Law is made.

People making art find out where the limits of free expression are by going beyond them and getting into trouble.

Neil Gaiman, “Why defend freedom of icky speech?”, Neil Gaiman’s Journal, 2011-06-24

June 23, 2011

Shock, horror! Dutch court clears Geert Wilders of hate charges

Filed under: Europe, Law, Liberty, Politics — Tags: , , , — Nicholas @ 09:05

Perhaps there is still a faint bit of hope for freedom of speech in Europe after all:

A Dutch court has acquitted rightwing politician Geert Wilders of hate charges, saying his anti-Islam statements, while offensive to many Muslims, fell within the bounds of legitimate political debate.

Judge Marcel van Oosten said Wilders’ claims that Islam is violent by nature, and his calls for a ban on Muslim immigration and the Qur’an, must be viewed in a wider context of debate over immigration policy.

The judge added that the remarks could not be directly linked to increased discrimination against Dutch Muslims.

Wilders unmoved as the verdict was read, but his supporters in the public gallery hugged one another and clapped after the acquittal.

Wilders, one of the most powerful and popular politicians in the Netherlands, was accused of inciting hatred and discrimination against Muslims through numerous public statements, and with insulting them by comparing Islam with Naziism.

“I’m incredibly happy with this acquittal on all counts,” Wilders said outside the courtroom. “It’s not only an acquittal for me, but a victory for freedom of expression in the Netherlands.

June 21, 2011

In unrelated news, Georgia now has farm issues

Filed under: Americas, Food, Law, USA — Tags: , , — Nicholas @ 10:14

After a passing a hugely successful bill to exclude illegal immigrants from the state, politicians are astounded to find that actions do have consequences:

After enacting House Bill 87, a law designed to drive illegal immigrants out of Georgia, state officials appear shocked to discover that HB 87 is, well, driving a lot of illegal immigrants out of Georgia.

It might be funny if it wasn’t so sad.

Thanks to the resulting labor shortage, Georgia farmers have been forced to leave millions of dollars’ worth of blueberries, onions, melons and other crops unharvested and rotting in the fields. It has also put state officials into something of a panic at the damage they’ve done to Georgia’s largest industry.

Barely a month ago, you might recall, Gov. Nathan Deal welcomed the TV cameras into his office as he proudly signed HB 87 into law. Two weeks later, with farmers howling, a scrambling Deal ordered a hasty investigation into the impact of the law he had just signed, as if all this had come as quite a surprise to him.

Driving out competing labour from illegal immigrants has created a lot of farm labour jobs for Georgia’s unemployed citizens, but for some unexpected reason, they’re not moving into those jobs:

According to the survey, more than 6,300 of the unclaimed jobs pay an hourly wage of just $7.25 to $8.99, or an average of roughly $8 an hour. Over a 40-hour work week in the South Georgia sun, that’s $320 a week, before taxes, although most workers probably put in considerably longer hours. Another 3,200 jobs pay $9 to $11 an hour. And while our agriculture commissioner has been quoted as saying Georgia farms provide “$12, $13, $14, $16, $18-an-hour jobs,” the survey reported just 169 openings out of more than 11,000 that pay $16 or more.

In addition, few of the jobs include benefits — only 7.7 percent offer health insurance, and barely a third are even covered by workers compensation. And the truth is that even if all 2,000 probationers in the region agreed to work at those rates and stuck it out — a highly unlikely event, to put it mildly — it wouldn’t fix the problem.

June 20, 2011

Radley Balko dispels a few myths about the justice system

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 12:50

In his new column at the Huffington Post, Radley Balko discusses some common myths in US criminal justice:

Myth 1: You Can’t Be Tried More Than Once For The Same Crime

The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.

But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.

Second, the U.S. Supreme Court has ruled that the government can charge a defendant with both a crime and the conspiracy to commit that crime without violating the constitutional prohibition on double jeopardy. This gives the government two opportunities to convict for is essentially the same offense. Conspiracy is often easier to prove than the underlying crime. It also gives prosecutors a way to rope in alleged offenses they can no longer charge separately due to statutes of limitations.

Finally, there is the “separate sovereigns” exception to double jeopardy. This allows a defendant to be tried, convicted and sentenced for the same crime in both state and federal court. The most well-known example of the separate sovereigns exception is when the Los Angeles police officers who beat Rodney King were acquitted in state court, then convicted in federal court of violating King’s civil rights.

SpaceX and the rogue consultant

Filed under: Law, Space — Tags: , — Nicholas @ 08:48

SpaceX is going to court over a would-be consultant’s claims that their rockets are unsafe:

According to SpaceX’s filing with the Fairfax County circuit court in Virginia, Joseph Fragola, veep at tech consulting firm Valador, tried to obtain a hefty deal from SpaceX at the beginning of June:

     Fragola attempted to obtain a consulting contract from SpaceX worth as much as $1 million. He claimed that SpaceX needed an “independent” analysis of its rocket to bolster its reputation with NASA based on what he called an unfair “perception” about SpaceX. SpaceX did not respond favorably to Fragola’s offer.

The rocket company — which as everyone knows is helmed, CTO’d and in part bankrolled by famous nerdwealth kingpin Elon Musk — says it then found out that Fragola had subsequently done his level best to create such a perception:

     SpaceX subsequently leamed that Fragola has been contacting officials in the United States Government to make disparaging remarks about SpaceX, which have created the very “perception” that he claimed SpaceX needed his help to rectify.

     For instance, in an email he wrote on June 8, 2011, to Bryan O’Connor, a NASA official at NASA’s headquarters in Washington, DC, Fragola falsely stated: “I have just heard a rumor, and I am trying now to check its veracity, that the Falcon 9 experienced a double engine failure in the first stage and that the entire stage blew up just after the first stage separated. I also heard that this information was being held from NASA until SpaceX can ‘verify’ it.”

SpaceX for its part says that this rumour is “blatantly false… as a purported ‘expert’ in the industry, he should have known that the statements were false.”

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