Why is the Borgata Closed?

dice.jpgAlthough rumors are swirling of an end to New Jersey’s government shutdown, as of this hour the state, and its casinos, are closed for business. It is pretty remarkable, when you think about it, that a huge and productive industry has been closed for lack of immediate government oversight. Linda Kassekert, chair of the New Jersey Casino Control Commission (CCC), lamented the turn of events:

Today, I had to do something that none of my predecessors ever had to do…..and something I hope and pray none of my successors will have to do. Today, New Jersey shut down its casino industry. This is something that no one ever wanted to see happen, but, as you know, Gov. Corzine ordered the shutdown of non essential state services on an orderly basis. On Sunday, after consulting with casino executives, security officials, with the Division of Gaming Enforcement, New Jersey State Police as well as Mayor Levy and Chief of Police Mooney, I issued an order for the cessation of gaming as of 8 o’clock this morning.

Why did the Borgata, and like-palaces of bad decision-making, have to close?

The easy answer is that gambling is presumptively illegal, authorized by 24-hour operation of the CCC. Easy, true, and boring.

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Hiding Behind The Fourth Amendment

As I mentioned in an earlier post, a Birmingham suburb is considering an ordinance that criminalizes possessing a house in which an “open house party” occurs. An open house party occurs whenever two or more underage people consume alcohol in the home. As a consequence, any time parents allow their two kids to have wine at dinner they’re hosting an illegal house party. Mountain Brook’s police chief suggests that this won’t be a problem because the police can’t enter the house without some suspicion of misconduct and “no one really calls and says, `my mom lets my brother drink at dinner.'”

I’m not sure I like seeing the Fourth Amendment used in this fashion. It seems to me that a criminal law should be narrowly drawn to address the problem at hand. If we really think that it should be a crime for two or more underage kids to drink at home, regardless of the circumstances, we shouldn’t find excuses for why the law won’t be enforced at inopportune times. We should exclude those situations. And if we don’t exclude them, it seems to me that we want to find ways to stop those evil-doing parents who toast the new year with their underage issue.

While this law is minor, it’s relatively easy to see how hiding behind the Fourth Amendment becomes a way to encourage unnecessary lawmaking: the consequences of overbroad new laws are explained away as unlikely and irrelevant to selected citizens. At the same time, these provisions can be used, selectively, to generate a justification for entering homes that might otherwise be of interest to police. In my view, the only acts that should be crimes are those that a family in Mountain Brook – or Scarsdale or Winnetka or anywhere else – would be willing to forego in the privacy of their home. If the regulation seems to intrude too much on personal or family matters, it’s probably a bad law.


Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.


NY Court of Appeals Decides Same-Sex Marriage Case

New York’s highest court handed down its eagerly anticipated decision in Hernandez v. Robles this morning. The court first decided that New York statutes did in fact limit marriage to opposite-sex couples, then proceeded to analyze that restriction under a rational basis test, defining the relevant right as not the right to marry a person of one’s choosing, but “[t]he right to marry someone of the same sex.” It found that the New York legislature could have had rational bases for drawing a line between opposite-sex and same-sex couples:

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Ken Lay: R.I.P.

Ken Lay, R.I.P. at 64. A few thoughts.

1. I’m not running for office, and I don’t think this blog counts as journalism, so I must be a fool. I think that Lay deserved prison time. (Whether or not Lay would have been sentenced to a life term, as Larry Ribstein claims here, or its functional equivalent is unclear). Now, did he deserve as much time as a murderer? (Assuming that murder was a federal crime). It is a tough question, as I admitted in January. Ribstein describes Lay’s crimes as follows:

He was convicted for lying about [Enron being a Ponzi scheme] at the tail end. Some people bought in at that point because they didn’t know the truth, and maybe that was partly Lay’s fault. But others (not Lay) got out – the gains and losses of these traders net out.

Alot of the people who feel hurt here simply hung onto their stock too long. But did they get hurt by Lay? If he had told the truth at his first opportunity, or even just remained conspicuously quiet, they just would have gotten hurt sooner.

Let’s put aside the factual disputes [But note: weren’t the locked-in employees owed some sort of duty by their boss?], and also put aside the point on timing [But note 2: if the truth had been revealed earlier, perhaps JKS wouldn’t have quit, or the firm would have been saved, etc. Lies fester.] Larry’s argument would seem to prove too much – there will often be non-wrongdoer “winners” from fraud, as there are winners from murder, theft, etc. Does this mean that fraud ought not be criminal in the ordinary case?

The punishment point is more troubling to me. Is fraud as bad as murder? On considered reflection, of course not. But that doesn’t mean that fraudsters ought not be punished like murderers. Ordinary deterrence intuitions suggest that punishment needs to be ratcheted up as enforcement goes down. Thus, murder is almost always prosecuted. Stock market manipulation and lying to banks to secure loans almost never are. Larry would have punishment in corporate law instantiate lex talonis. But punishment in this arena dances to Becker’s drum, not Markel’s. To make the laws against securities fraud work, we need tough penalties, or many more prosecutions. I’d rather the former than the latter.

2. Peter Henning says that the criminal conviction has now been expunged,and that “the plaintiffs cannot rely on it as proof in their case, if my dim memory of collateral estoppel serves me right.” My memory of CE is also obscure, and I wonder if any of our regular and/or expert commentators care to weigh in on this civil procedure problem. Separately, can the civil plaintiffs use Skilling’s conviction against either Skilling or the Lay estate before it becomes final? It is hard to believe that the civil trial has to be stayed for the pendency of the coming appeals, but such would seem to be the consequence of the rule that Henning has unearthed.


Our Founding Fruitcakes?

Trumbull, The Declaration of IndependenceHello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.

My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.

Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.

I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?

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More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday’s Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury’s factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury – grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering – as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia’s move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can’t be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there’s nothing the Supreme Court can do about it.


How A Public Defender Keeps Death (Sentences) At Bay

Some people have expressed surprise, and even doubts, that the Philly PD has managed to keep all of its clients off death row. The explanation is less grand, but perhaps more important, than one might think. The PD’s – lawyers, social workers, and others assigned to these clients – simply work these cases harder than most appointed counsel. And they don’t just do thorough investigations. They do the work that so many defense lawyers appear to dread: they spend serious time with their clients. (Let me say at the outset that, notwithstanding my broad criticisms of lawyers who handle indigent appointments, there remain many such attorneys who do good work. Many, but not nearly enough.)

Most criminal cases settle with a plea bargain. The same is true for the Philly PD. But to make a plea bargain work in a capital case, you have to do two things. First, you have to sell the DA on a deal. This means you must investigate the case thoroughly – and early on – so that you can explain to the DA why your client does not deserve death, and why you would have a good chance of getting either an acquittal on the capital charge, or a life sentence, if the case proceeded to trial. In non-capital cases, defense lawyers will often be far more secretive about some of these details, figuring that they’ll do better with a jiury than with the prosecutor. Because trying capital cases is so risky, the better approach – with a DA who will talk (i.e., one who does not use every case as an opportunity to advance his or her political fortunes) – is often to bring out many of these factual and equitable claims in the negoitation process.

Perhaps even more than doing great investigation, you have to build close relationships with your client. One might assume that every defendant would be looking for a way to plead to a life sentence, in order to avoid death. But it turns out (no surprise, really) that the prospect of voluntarily accepting lifetime incarceration is a whopper. Death penalty advocates may believe that “life doesn’t mean life”, but most defendants think it does. And particularly for the 18 or 19 or 23 year old defendant, a life sentence may feel comparable to death. So the staff of the Philly PD’s homicide unit actually create strong relationships with their clients, in order to garner the trust necessary to sell a plea bargain. It turns out that this is not only good from an instrumental view – getting a better sentence – but it’s also better for the client’s psyche. Rich or poor, most defendants are the same: they’re afraid and unsure and need a great deal of information and reassurance from their lawyers. Unfortunately, few indigent clients ever receive that kind of treatment.

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Summertime for Hitler, Right Here In The U.S. of A.

If your summer plans included a pilgrimage to the Hitler Shrine in southeastern Wisconsin, it turns out that you’ll need an invitation from its owner.

But not to worry! Your daughters can download the “nationalist” music of Prussian Blue (a/k/a Mary-Kate and Ashley Eichmann), pictured above, at the click of a mouse! As this fan notes in his review of the dierndel-draped darlings’ music, “the first three songs on the new CD have nothing to do with race at all. They are geared more toward the young teen set and of course a young girls favorite topic, boys.”

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