I’m inclined to agree with my friend who said that Panetti was "playing up his crazy" in order to avoid execution, but overall I like the death penalty discussions going on in the SCOTUS.
Here’s an idea I didn’t invent: Americans really love the idea of pulling yourself up by your bootstraps, or conversely, singlehandedly throwing yourself onto a hypodermic needle full of pancuronium bromide (among other things). We think: free will is more powerful than circumstance, and so any individual should pay the price for his actions. Most of the rest of the world disagrees, at least to some extent, and finds that criminals are at least partly a product of their family and societal circumstances. Scalia would rather not look around the world for guidance (see part III of his Roper dissent) but the rest of the Court seems open to the idea that people develop in some other setting than a vacuum, so maybe it's not really fair to kill them back.
Earlier this year, the SCOTUS said in Smith, Abdul-Kabir and Brewer: "mitigating factors are super important, punks. Stop executing everyone in Texas." Even a story of a bad childhood is significant enough that it could overturn a death sentence and needs to be considered by the jury. Now, in Panetti, SCOTUS says: "people might go crazy awaiting their execution, so you shouldn’t kill them." (There’s a little more procedure involved, but I like this part the best.)
How many people whose crimes qualify them for the death penalty aren’t 1) mentally ill; 2) crazy after awaiting their execution; 3) victims of abuse or an otherwise "bad childhood"; or 4) have some factor in their lives/brains that reduces their culpability in part? Intuitively enough, it turns out to be somewhere around none of them.
To be fair, there are probably a handful of Scott Petersons/Chris Wiltons whose circumstances we don’t find all that sympathetic. But let’s say that 94% of people eligible for the death penalty were severely physically and sexually abused. At what point does the cost of maintaining the death penalty infrastructure just to punish a handful of the otherwise perfectly normal murderers become absurd?
Thursday
Town of Oconto v. Frost
It's unpublished, but you can westlaw it at 289 Wis.2d 219. It contains the greatest footnote in legal history:
"FN1. Two of Frosts' arguments do not merit individual attention. Their claim that Judge Jeske [trial court] was not licensed to practice law based on their limited definition of "license" has no merit. Their argument that the court lacked subject matter and personal jurisdiction because the Town paid the filing fee and service charges with federal reserve notes rather than gold or silver is frivolous."
The asshole in me would love to walk into court with "I win because you paid the filing fee in cash and not gold bullion."
"FN1. Two of Frosts' arguments do not merit individual attention. Their claim that Judge Jeske [trial court] was not licensed to practice law based on their limited definition of "license" has no merit. Their argument that the court lacked subject matter and personal jurisdiction because the Town paid the filing fee and service charges with federal reserve notes rather than gold or silver is frivolous."
The asshole in me would love to walk into court with "I win because you paid the filing fee in cash and not gold bullion."
Frida's
Ant and I hit up Frida's for an early lunch today, and I was kind of impressed. The Chef's Burger has avocado slices, bacon and a fried egg, meeting my recommended daily allowance in three food groups. Ant seemed to be happy with the veggie burger too. It was a little pricy ($8.50 for a burger makes me cringe a bit) but I'd go back again.
New Favorite Westlaw ALR Category
You know those things: Whenever you search for something in Westlaw, on the right hand side of the screen you get this list of Corpus Juris Secondum and ALR write-ups on topics supposedly similar to the thing you just searched for/retrieved. Anyways, without further ado: "Liability for Injury or Damage Caused by Escaping Gas". The tort of flatulence!
“It’s a classic American marriage between food and law.”
The NYTimes is the forum for poor, poor Rebecca Charles. You see, she owns this restaurant, Pearl Oyster Bar in the West Village, and her former sous-chef Ed McFarland, the slimy bastard, opened up Ed's Lobster Bar in SoHo. You own a restaurant, your sous-chef finally gets enough experience to start his own dilly-o across town, so this article is about the little fete Charles threw for McFarland to help him celebrate his gastronomical upward mobility, right?
Of course not, this is New York City (voice-in those old Pace salsa commercials). Charles slapped McFarland with an intellectual property suit, claiming that the menu, decor, and otherwise in Ed's Lobster Bar is the same as Pearl Oyster Bar, down to "the packets of oyster crackers placed at each table setting." Charles also makes the dubious statement that "That restaurant [the Pearl Oyster Bar] is me.” All of the sudden the dispute swings from restaurant parrotry to cloning the owner against her will: I'll have the stem cells and cole slaw, please.
Ms. Charles needs to realize two things. First, if other restaurants start doing what she's doing, it's likely a sign that demand for her product is increasing. If the whole seafood bar market is expanding, wouldn't you want other restaurants to be similar to yours? Sure, there'll be people who go to the other place instead of yours, but vice versa too: Franchises require uniformity among restaurants so you don't have to think about whether you want the Big Mac from Jim's McDonalds or the chicken fingers from Susie's. There is value in uniformity throughout a set of restaurants for everyone involved, as long as the quality is maintained. If Charles were suing McFarland for making a shitty copy of her restaurant, I'd be more sympathetic.
Moreover, good luck proving damages. If I'm McFarland's defense attorney, I'm gonna make sure Charles factors in that she'll be getting business from people who like McFarland, over time, as much as the other way around (think Coase: initial distribution of entitlements becomes irrelevant over time with good information and transaction costs). In the restaurant business, convenience (transaction costs, how long does it take me to get there) is a huge selling point. If McFarland can show that more people who live around where he is take visits to Charles' side of town than vice versa, he can argue that she's actually getting more pecuniary benefit from his restaurant than she is from hers.
I think the moral of the story is that someone needs to call a whambulance for Ms. Charles: We know, you feel used and abused by your former sous-chef. He staged (plated?) a coup d'etat and is now oystering all over town on his own. About the best she could do is to quote the honorable Mr. Lebowski ("You're Mr. Lebowski, I'm the dude"): "The bums will always lose!"
Of course not, this is New York City (voice-in those old Pace salsa commercials). Charles slapped McFarland with an intellectual property suit, claiming that the menu, decor, and otherwise in Ed's Lobster Bar is the same as Pearl Oyster Bar, down to "the packets of oyster crackers placed at each table setting." Charles also makes the dubious statement that "That restaurant [the Pearl Oyster Bar] is me.” All of the sudden the dispute swings from restaurant parrotry to cloning the owner against her will: I'll have the stem cells and cole slaw, please.
Ms. Charles needs to realize two things. First, if other restaurants start doing what she's doing, it's likely a sign that demand for her product is increasing. If the whole seafood bar market is expanding, wouldn't you want other restaurants to be similar to yours? Sure, there'll be people who go to the other place instead of yours, but vice versa too: Franchises require uniformity among restaurants so you don't have to think about whether you want the Big Mac from Jim's McDonalds or the chicken fingers from Susie's. There is value in uniformity throughout a set of restaurants for everyone involved, as long as the quality is maintained. If Charles were suing McFarland for making a shitty copy of her restaurant, I'd be more sympathetic.
Moreover, good luck proving damages. If I'm McFarland's defense attorney, I'm gonna make sure Charles factors in that she'll be getting business from people who like McFarland, over time, as much as the other way around (think Coase: initial distribution of entitlements becomes irrelevant over time with good information and transaction costs). In the restaurant business, convenience (transaction costs, how long does it take me to get there) is a huge selling point. If McFarland can show that more people who live around where he is take visits to Charles' side of town than vice versa, he can argue that she's actually getting more pecuniary benefit from his restaurant than she is from hers.
I think the moral of the story is that someone needs to call a whambulance for Ms. Charles: We know, you feel used and abused by your former sous-chef. He staged (plated?) a coup d'etat and is now oystering all over town on his own. About the best she could do is to quote the honorable Mr. Lebowski ("You're Mr. Lebowski, I'm the dude"): "The bums will always lose!"
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