Dagger in hand |
|
|
A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand. --Michel de Montaigne, Of the art of discussion. Stab back: cmnewman99-at-yahoo.com Home
Archives
Oriana: la sibilla eremita The Sage of Baltimore: Browbeating the booboisie. Reason: As in voice of. Lileks: Il miglior fabbro Volokh: Dean of Kozinski clerks Olympia: I read her only for her literary qualities. Really. Say it isn't so!: Do you think it's the lumpy oatmeal? Our girl Jane: Keep em flying, Miss U.S.A. My man Baruch: Amor dei intellectualis. Hubba hubba. Scrofula: With a name like Scrofula, it has to be good. The Idler: No frills. IJ: Fighting the good fight. ACLU: Good when they remember what the L stands for. Yourish: Meryl smash. Heidi's letters: I think she does reprisals, too. Her pinkness: Each time she falls she shall rise again! And woe to the wicked! In Context: Lynn provides it. Andrea: One spleen to rule them all. Still Waiting: Don't believe the hype. The Droll Weevil: Posts, pedantry, and pie(?) Perugia: Second home. Craven Road n.7: His name is Dog. Dylan Dog. Tom Bell: Internet law, online where it should be. Just the place for a snark: I've told you but once, but it's true. Greed is Good: And doesn't look too shabby in a T-shirt, either. Translator's Buddy: Didn't have "gliridi" though. CGFA: Favorite source of desktop material. Fallacies: Check yourself. Cosmo for men.: Implementing our equal right to feelings of inadequacy. Caplan: Visit the Museum. There's just one hitch: But it's a good one. Samizdata: Libertarian lexicographers. Unqualified Offerings: But quality assured. She is Wendy: Hear her roar. The Divine Blogroll: Entrate, che troverete speranza. Like the corners of my mind: Read it and weep. Aziz: Providing perspective. IJTIHAD: The future of Islam. I hope. Himishi: Where I acquired that raw fish addiction. My generous sponsors Alan Moore: Quis custodiet? Spoonerism: A blushing crow to tyranny. The Onion: Scary thing is, they're not far off. ScrappleFace: More important news. Day by day: Trudeau Schmudeau. Fumento: Brockovich Crockovich My alma mater: Not basketball. Croquet. The Capitol Steps: providing their fodder is the government's only indispensible function Randy Andy: Get used to it. Vasco Rossi: When they're in Italy, the Stones open for him. The Shadow: Useful counterpoint. Italiani liberi: Dr. D. Vider's Italian minions. Friendly Neighborhood Sinners: Swim the warm waters. Yuppies of Zion: The blog with two backs. Hobbit's repast: I'm partial to onesies, myself. The Friesian School: going Diderot one better Head spinning?: They can help. Looking sinister: Brian is watching. Murray's ghost: Stalking the state. Hell, no.: So anti it's not always clear what they're pro. Bureaucrash: takin' it to the streets Joe Cartoon: Indulge your inner 12 year old boy. There's a light: Rand sans droid. The Fake Detective: Rescuing damsels in dis-dress. Stromata: Amazing how much good stuff some people leave just lying around. The VRWC: Conspiring at a law school near you. The VLWC: Practicing the sincerest form of flattery. Corriere della Sera: Haven't sued me yet. Who am I?: Che ti frega? 
|
Thursday, October 16, 2003
This hilarious recounting of a recent Supreme Court argument reminds of something I've thought for a long time. No, not that the 9th Circuit is wacky. I actually think its wackiness is largely overstated. It's that the "reasonableness" of a search should be decided by a jury. It's precisely the kind of context specific, sensibility-of-the-community kind of question that juries are supposed to decide. When courts decide these things they have to worry about precedential value, which leads to either an absurdity like the "leave in conditioner" rule, or (more often) a rule that is so deferential to cops it has hardly any teeth at all. In reality things are more nuanced, and juries are the ones who should be supervising whether their public servants are striking the right balance between respecting their rights and protecting them from crime. Of course, it couldn't be the same jury that was supposed to try the case. What we should have is an evidence jury, drawn from the community in which the search took place. It gets presented with evidence as to the circumstances in which the search took place, what the cops knew before they performed it, and how they went about doing so. It does NOT get told what the cops found, or what the defendant is being charged with. The evidence jury decides whether, under all the circumstances, what the cops did was "reasonable." Then based on that the court excludes or admits the evidence, and off we go to the other jury who will try the merits. The main objection I can see to this proposal is that it doesn't give the cops sufficient guidance as to what they can or can't do. I don't know. I suspect that the cops serving a particular community will get a sense as to the kinds of things those people consider "exigent" and the kinds of intrusions they consider unwarranted. They'll also have a strong incentive to build up the trust of the people in that community, so that their actions will be given more benefit of the doubt. And if a certain community tends to think you should need someone screaming bloody murder before the cops can bust a door in, then that's the standard the cops will be held to. Of course, the result of all this is that the goals and methods of law enforcement would have to be more attuned to the priorities of the community than those of the state. When it comes to the investigation of victimless crimes for example, juries would presumably tolerate less intrusion than they will when someone is in danger. So the community's view as to the importance of a particular law will affect the amount of leeway police have in enforcing it. Personally, I regard that as a good thing.
Comments:
Post a Comment
|