What’s Up With Hartley v. Sanchez?

It went to the SCOTUS conference on September 26 and there’s no docket entry after that. It wasn’t granted.  It wasn’t denied.

It wasn’t anything.

Does that mean relisted?  Rescheduled?


As we predicted, the Manuel argument was pretty much a disaster.  There seems to be a consensus that there is a consensus of some kind, but we hope they don’t do anything with Manuel.  At least not yet.

The real muddle of Manuel is that it’s trying to fit the square peg of malicious and malevolent government conduct into the round hole of “unreasonable” conduct under the 4th amendment.  The government conduct complained of in Hartley is less egregious (“knew or should have known”) but we think that’s also a poor fit for the 4th amendment.

Malicious and malevolent conduct is worse than “unreasonable” and violates due process. This is a distinction we must recover, and which Manuel threatens to bury further.  We don’t think Hartley is very useful here, either, although maybe in conjunction with another case where things are made a little clearer.

We have some ideas about such a case, but that’s for another time.  In the meantime…





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“Extremely Complicated”

Or, say, “analytically complex”.  Take your pick.

We are discussing, of course, the upcoming argument in Manuel v. City of Joliet.  And we are quoting from SCOTUS Blog’s write up about the whole thing.

Indeed this is, as the Brits were wont to say, a “sticky wicket”.  You have an area of constitutional law that is very confused, commanding pages and pages of dissertation in a recent 5th circuit case that for some reason none of the parties or amici in Manuel even cite.  Then you have statute of limitations problems, because Wallace v. Kato, one of the late Justice Scalia’s more unfortunate contributions.  Then you have state-federal court “tensions” and the Parratt doctrine.

Why, oh why, did the SCOTUS ever take up Manuel, a 1983 case out of the 7th circuit, when the cause of all these problems was another 1983 case out of the 7th circuit, namely Albright v. Oliver?  Maybe this is more of a “vehicle” problem than anything else.


Our offering for this morning is simply this:  we need to return to the basic constitutional issue here, uncluttered by issues of immunity, civil liability, statutes of limitation, accrual of causes of action, arrest v. “detention pursuant to legal process”, Parratt doctrine abstention, Younger abstention, 1983 this, 1983 that, Buckley v. Fitzsimmons (Egad another messed up 7th circuit 1983 case).  We think that when we finally focus on the constitutional issue simpliciter the formerly obvious principle – that “due process” applies to the entire process by which criminal convictions are obtained – will be restored to its rightful place in the firmament of constitutional adjudication, and this ultimately mindless parsing of that process into arbitrarily designated segments so that officials can be held liable for their perfidious and criminal conduct* – or then again not held so liable, which is more often the point – will be cast into the intellectual waste-bin where it belongs.

But obviously, the Manuel case is not going to accomplish any of that, and we’ll be lucky if it doesn’t make matters worse.

Considerably worse.  Ugh.

*Among the fundamentally misguided aspects of Manuel is this:  that they’re all trying to fit truly malevolent and criminal official conduct like suborning perjury and fabricating evidence into the 4th amendment’s proscription of “unreasonable” official conduct.  It’s a category error.  Meh.

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Thank You, Judge Kozinski

…for taking to the pages of the Wall Street Journal, not only to point out the perils of junk science in the courtroom, but also to succinctly highlight the enormous difficulty of righting our justice system once it has gone wrong and convicted someone who is innocent, and noting the obvious, if unheeded, moral obligation the country has to right these wrongs:

Preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any…As for past convictions obtained through discredited methods, the outlook remains grim… Setting aside wrongful convictions has become exceedingly difficult under a 1996 law called the Antiterrorism and Effective Death Penalty Act, which severely limits the ability of federal courts to review state-court decisions. Congress should amend the legislation to authorize swift federal relief to prisoners who make a convincing showing that they were convicted with false or overstated expert testimony…Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

One of the commenters to the piece of course suggests that Judge Kozinski should be put on the Supreme Court.  The article isn’t going to help that cause any, and the fact that Judge Kozinski harbors such thoughts is probably one reason he wasn’t in the running for the current vacancy, even in the opinion of the Obama administration.



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Mutual Admiration Society

…for the positivistrelativist approach to law practice and, we suppose, life in general.

The members of this particular troupe are none other than SHG and Judge Kopf.

A few choice quotes:

As the old (and obviously sexist) saying goes, “women feel, priests believe, lawyers think.” The problem is that those who put too much emphasis on their beliefs are blind to thinking. Belief, by definition, requires neither proof nor thought; it’s just what you belief, even if there is absolutely no basis for it. That’s what makes it belief.

The concept of justice has taken on a life devoid of reason, a life based on belief.

That’s the beauty of belief. It requires no logic. It just is, no matter how absurd and irrational.

The law creates rules to be applied, when they work, based on logic and reason.

And finally, where does one search for this elusive concept called “justice”?

The seminary is the right place to do so, as there is no place for such questions in the courthouse.

Yep.  Banished from regular society, justice is confined to theological study among the cloistered.  This coming from a lawyer, cheered on by a judge.


It seems that any educated person should have a passing acquaintance with the subject of epistemology.  And perhaps that’s the main problem:  neither SHG nor Judge Kopf do.

To someone with at least such a passing acquaintance, the rejection of the idea that there is a radical dichotomy between “reason” and “belief” is so elementary that it’s barely worth discussing.  One progresses almost immediately to ridiculing the notion:  reason explains most everything but itself.  That is, we believe in reason.  We know that reason works, and to a large extent how it works, but we don’t know why it works and cannot, under the most rigorous analysis, justify elevating reason over emotion, or random impressionism, or the will to power, or any other basis for human belief and action.

“Lawyers think”?  Not very well, it seems.

Some beliefs are reasonable.  The belief in reason itself, for example.  The belief in God.  The belief in justice, and truth.

Some beliefs are unreasonable.  The belief in unicorns.  This or that “conspiracy theory”.  The belief in evolution.

Just kidding about evolution.  Sort of.

Now, a real student of epistemology might take issue even with these assertions.  You can get to a place in epistemology where you deny the validity of reason, too.  It gets a little circular (By what reason do you deny the validity of reason?), but it’s this kind of thing that has nothing to do with the law, which is – at least in theory – reason applied to the world we all live in, or at least appear to live in.  Practical reason, as Immanuel Kant might say.

Which is to say, SHG and Judge Kopf really don’t know what they’re talking about, because they apparently don’t know anything about epistemology, which probably means they were “political science” majors in college.

About which we might offer some more opinions later.  Political science, that is.

But the bottom line is this:  “justice” may be an elusive concept but in the same way so is “reason”, so is “logic”, so is “love”, so is “truth” and yet all of them – not one of them entirely knowable – are indispensable to human life as we know it.  There is no more reason to banish justice from courtrooms than there is to banish reason or logic or for that matter “law”.  The idea is frankly foolish and has long since been thoroughly discredited, both intellectually and morally.  Its persistence in the legal profession is not a sign of sly cleverness, as its proponents like to pretend, but rather a depressing degeneracy.  The trials at Nuremberg in the middle of the last century were basically about this very thing:

Deficiencies in intellect and education normally have consequences only for the deficient and mal-educated person.  But make such people lawyers and judges and it’s like two six year olds playing with a loaded revolver:  they know just enough to really hurt themselves or others.

In any event, to make the obvious retorts to the truly pedestrian assertions:  reasonable beliefs require both “proof” and thought, or at least rational thought; a life based upon belief – which is to say, every single life of every rational person – is not “by definition” “devoid of reason”; reasonable beliefs cannot defy the principles of logic, but even though logical they are still beliefs and not empirical knowledge or axioms.

SHG often complains that what others write makes people stupider.


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The Suicide Of Bill Nojay

At one point in the offertory of the traditional latin mass the priest says this:

Domine, dilexi decorem domus tuae: et locum habitationis gloriae tuae. Ne perdas cum impiis, Deus animam meam: et cum viris sanguinum vitam meam. In quorum manibus iniquitates sunt: dextera eorum repleta est muneribus.

which at times translates as follows:

O Lord, I have loved Thy beauteous house, and the place where Thy glory dwelleth. Destroy not my soul with the impious, O God, nor my life with men of blood. On whose hands injustice abideth, whose right hand is full of bribes.

The world has its temptations.  Then again, a man should go where he won’t be tempted.

We recall being told, on too many occasions, that the point of it all – life, that is – is to benefit one’s family.  We have retorted – also on too many occasions – “Shall we shoot another man in the head if that will benefit our family?” a rhetorical question, of course, but usually spoken without the rhetorical device of speaking in the first person plural.

It’s the morality of “The Godfather“.  People seem to forget that the Godfather and his “family” were, in the end, murderous criminals:


Taking your own life is one way out of a federal criminal prosecution and the almost certain conviction that attends it.  If you’re an elected public official who wants his state pension to go to his family, something that might very well not happen if you’re convicted on federal fraud charges, it’s one way to eliminate that risk, too.

If the point of life is to benefit your family, Bill Nojay’s choice was a no-brainer.  Indeed, it could be seen as a heroic act.

Of course, this is another theme right out of the Godfather, Part II:


Legend (and The Godfather, Part II) has it that among the ancient Romans suicide was the honorable way out.

Bill was nothing if not an aspiring member of America’s ruling class.  He punched the Ivy League ticket and involved himself in international affairs, an odd pastime for a state legislator.  Perhaps his trip through Columbia led to CIA involvement through some obscure group known as “Foundation for Democracy in Iran“, for which he was apparently the director and – not at altogether fortuitously at this point – treasurer.

Let’s assume, with ample reason, that the alternative outcome for Bill Nojay was a huge scandal, shame, criminal conviction and impoverishment for his family, and death in federal custody.  Why not off yourself?

To the ancient (pre-Christian) Romans and we’d guess pagans in general it’s hard, or maybe impossible, to come up with a good reason.   Are we become pagans, then, if not explicitly then at least in practice?

Then again some people say that suicide is always cowardly.

But the circumstances here do not suggest cowardice or despair or any overwhelming emotion.  No, to us this appears to be a cold, calculated, pragmatic and fundamentally pagan act.  We don’t know if Bill Nojay was a Christian.  What we do know is that his action in taking his own life was the act of a worldling, a person not so much opposed to Christianity as someone who believes in the end that Christianity doesn’t matter.

Maybe it doesn’t, of course.  You pays your money and you takes your chances.  And Bill took his.

Even so.  RIP Bill.

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The Fed Under Fire

This time for not raising rates.

We’re at “full employment” except the Wall Street Journal seems to disagree with that, citing an “army” of unemployed men, and this isn’t comforting either:

That was largely because the biggest jobs gains came in bars and restaurants, which added 34,000 positions. Social assistance grew by 22,000, professional and business services added 22,000 and Wall Street-related positions grew by 15,000. Health care also contributed 14,000.

Nor is thisNor this.  The American “economy” is increasingly the “service” and government sectors.  Bureaucrats and the waitresses that serve them lunch.  Ugh.

What does “economist” Ed Yardeni have to say about it all?

“Apparently, it hasn’t dawned on Fed officials that their ultra-easy monetary policies might have contributed greatly to the forces of global economic stagnation and deflation,” says Yardeni.

Yardeni is right, but probably not for the right reasons.  There’s a reason the Fed isn’t raising rates:  it will destroy the balance sheets of the world’s creditors.  The Fed is not particularly concerned about its nominal mission of full employment and low inflation; it is trapped into keeping rates low because the “assets” of lenders – that is, the market value of what they are “owed” by borrowers – declines when prevailing lending interest rates rise.  First and foremost, the Fed has to preserve the institution of lending.

We’ve been over this.  In 2013More than onceIn 2014And in 2015.  We’re not unsympathetic to the Fed’s plight, but we have no solution for them other than the one we have already offered.

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From time to time articles like this appear in the Washington Post or the New York Times with casually definitive statements like this:

Earth, along with the other planets in our solar system, formed about 4.5 billion years ago from a cloud of dust and gas swirling around the embryonic sun. For hundreds of millions of years, ours was a harsh, molten world, heavily bombarded by debris. At one point, a Mars-sized object slammed into the Earth and blasted into space the material that eventually cohered into the moon.

…as if none of it could possibly be questioned.

What if it can be?

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