The Life of the Law Still Requires Logic

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3 Responses

  1. Colin Miller says:

    Thanks for the interesting post. Justice Scalia accused the majority in the recent Confrontation Clause case, Michigan v. Bryant, of doing a similar thing. As he noted:

    The Court also wrings its hands over the possibility that “a severely injured victim” may lack the capacity to form a purpose, and instead answer questions “reflexive[ly].”…How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court’s proposed answer—to substitute the intentions of the police for the missing intentions of the declarant—cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more. The inquiry under Crawford turns in part on the actions and statements of a declarant’s audience only because they shape the declarant’s perception of why his audience is listening and therefore influence his purpose in making the declaration….But a person who cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to say. As far as I can tell, the Court’s substituted-intent theory “has nothing to be said for it except that it can sometimes make our job easier….”

  2. Brett Bellmore says:

    The life of the law isn’t logic OR experience, most places. It’s sophistry in the pursuit of making sure whoever gets to pick the judges isn’t inconvenienced by this pesky “rule of law” concept, while denying those subject to the law the moral certainty that the game is rigged they’d need to revolt. Problem is, the sophistry feeds off of itself, as the lawyers seek to persuade each other, and nobody else, and gets progressively less persuasive to anybody without a motive for pretending to find it valid. Until finally some kind of correction takes place, and the law gets re-grounded in reason for a short while.

    Considering how disconnected from anything a layman would find even vaguely rational the law has gotten in this country, I suspect that correction won’t be too much longer in coming.

  3. Joe says:

    I like my brief sketches a bit briefer.

    Just to be clear here, the police here weren’t just randomly knocking on doors and listening. They smelled marijuana first in the middle of a pursuit of someone involved in a drug buy they observed, the guy reasonably in one of two apartments. He was in the other, but again, the police had reasonable cause of believing an ongoing crime was going on inside.

    And, basically, opposition to the ruling seems to be a matter of being concerned with overall rules. The police are allowed entry for various reasons. These reasons weren’t the point. The point was if they could not use one of them even if they carried out perfectly benign normal police procedures. Here knocking on a door in the midst of a drug bust in the search of a suspect and smelling marijuana inside. If the underlining rule of being allowed to enter w/o a warrant is bad, fine, but that is the true problem, I think.

    I might have missed something, I realize, given the “brief” sketch here. As to Brett, I don’t see much rationality in the general “layman” these days either, and find life itself is fixed in various ways, so singling out lawyers in either respect seems like special pleading.