NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, September 24, 2003 ::
TheHill.com: GOP sees ‘obstruction’ of Bush nominees as 2004 campaign issue
:: David M. Wagner 4:25 PM [+] ::
...
Just when you thought it was safe to answer the phone...
...a federal judge rediscovers the nondelegation doctrine (though without citing it), and blocks the FTC's do-not-call registry. See decision here.
Actually, there may be some merit to the argument that the statute under which the FTC promulgated the registry, in contrast to a similar statute that gave power over telemarketers to a different agency (the FCC), did not give the FTC power to promulgate the registry. But it did give the FTC power to regulate telemarketing abuses, and under long-standing (though wrong) nondelegation precedents, that's a broad enough grant of power to allow the FTC to set up the registry.
The court's reasons for refusing to extend Chevron deference to the FTC in this matter is that the registry is constitutionally infirm as a regulation of speech. This is absurd: since when is your home or mine a public forum?
:: David M. Wagner 2:47 PM [+] ::
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:: Tuesday, September 23, 2003 ::
TO MY CRIMINAL LAW STUDENTS:
First, about Montana v. Egelhoff. The only part of it that was assigned was the part that's in the book
-- Justice Ginsburg's concurrence. And admittedly, she discusses mens rea (and that's what the chapter is about) more than the Scalia opinion does. But if you want a much clearer exposition of what the case was about, go read the Scalia plurality opinion. This is not an assignment -- it's for your enjoyment.
Btw, with all due respect, I think the editors of our book are flat-out wrong in characterizing the O'Connor opinion as "plurality" just because it has four Justices on it. Both its content and its placement in the official reports make clear that it is a dissent.
Also, I believe the editors mischaracterize the Scalia opinion. "[W]ith three others" --what kind of language is that? Like, he went down to Little Italy and picked up three paesans to join him? The "three others" are the Chief Justice, and Justices Kennedy and Thomas. Furthermore, last time I checked, "three others" plus one makes four, and with Justice Ginsburg's concurrence (concurring with Scalia, that is, not with O'Connor), that makes a holding (though not an opinion) of the Court.
In short, Egelhoff is as much a Scalia opinion as, say, Michael H. (remember that from Con Law or Family Law?), though you'd never know it from the summary in the book.
All right, now here's a question that one of you sent me, with my answers:
Q. 1. At common law, if a crime requires a specific intent (purposely or knowingly) then the accused may present a defense to negate that element of the crime?
A. First, remember that the state must prove every element of the crime beyond a reasonable doubt. Going into a trial, the defense has nothing to prove: it's the government, not the defense, that must prove stuff. That said, I should add this: when a legislature limits the ways in which defendants can defend themselves, it's sailing close to the edge of what Due Process allows. But, as Egelhoff shows, depending on the history of certain defenses at Common Law, states may disallow particular defenses.
Second, don't confuse the specific/general dichotomy with the four MPC categories of mens rea. "Specific intent" means "with intent to..." or "with knowledge of..." etc.; at any rate, statutory expressions like that are markers for specific intent crimes. Your question seems to assume that we don't have specific intent unless the mens rea is "purposely" or "knowingly." That's intuitively true, since the terms "recklessly" and "negligently" don't really describe intent at all. Yet crimes of recklessness and negligence are at least crimes of general intent, no? Anyway, the MPC drafters didn't like the specific/general distinction, and weren't trying to accommodate it. If you try to mesh "specific v. general" with the MPC categories, you'll end up with a headache and blue smoke coming out your ears. I know -- I've tried it.
Q. And if there is no specific intent listed in the elements of the crime then the accused cannot present evidence to negate intent?
A. Well, he can always present evidence to negate general intent, but because general intent is usually proved from the conduct itself, evidence against general intent will often also be evidence against actus reus; e.g., "it was a muscle spasm, not an action."
Also, other mens rea defenses against a general intent crime may be available, such as reliance on an authoritative official statement of law.
Q. 2. But if a state does not recognize the specific/general intent distinction [as] common law does, then how does the court determine whether to allow the accused to bring a defense or evidence negating his intent?
A. A mens rea defense is usually possible for a general intent crime -- just harder to pull off than with a specific intent crime. Also, state legislatures have leeway in allowing or disallowing certain defenses: that's what Egelhoff is about. Finally, note that the mythical common-law jurisdiction of Multistateland -- which is also where my exams take place -- does have the specific/general distinction.
Q. My next questions are about mistake of law.
3. From my reading of US v. Learned and the following notes, I concluded that a person is presumed to know the law and is liable for violation of the law unless his mistake of the law negates the required intent of an otherwise lawful act. Is this correct?
A. Learned is in the book as an illustration of an older approach. Balance it out with Bray. Should this issue come up on the exam, analyze the problem both ways, and tell me which one you think is better, and why.
Q.4. Is there a distinction between mistake of governing and non- governing law? Or are they both not excuses or defenses to crimes?
A. One thing I said on Wednesday was that you can interpret the terms "governing law" and "non-governing law" as, respectively, "the statute under which the defendant is charged" and "some legal rule, external to that statute, that has an impact on the defendant's case." Mistake about the latter is much more likely than mistake about the former to function as a defense (see Bray), but the former may also do so, especially if it negates the mens rea of a specific intent crime.
:: David M. Wagner 8:29 PM [+] ::
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:: Monday, September 22, 2003 ::
ATTENTION STUDENTS: Interesting post here about law firm interviews on campus. (From Sapere Aude, a blog by students at Indiana University School of Law.)
:: David M. Wagner 2:15 PM [+] ::
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:: Tuesday, September 16, 2003 ::
The full 9th Circuit is taking the recall election decision en banc.
Say, Bush v. Gore found an Equal Protection violation where different counties used different standards for determining voter intent, didn't it? Does it follow that there's an Equal Protection violation when different counties use different types of voting machines? That would be a novel wrinkle in constitutionalized election law -- one that Robert Bork foresaw (in a short article in FIRST THINGS, I think), but not one that Bush v. Gore requires.
Sorry for lack of links, but there's this hurricane, see....
:: David M. Wagner 3:36 PM [+] ::
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:: Monday, September 15, 2003 ::
Hurricane Isabel and American legal education
My school, Regent, is going to get it first, and on the chin. But then the thing moves on to the Washington D.C. area, where there's a tempting smorgasborg of law schools: George Mason (my alma mater legis), Georgetown, Catholic, American, Howard, GWU. (Did I leave anyone out? I didn't mean to.)
Then it's up through the Maryland panhandle and into central Pennsylvania, like it thinks it's Robert E. Lee or something. Perhaps U. of Pittsburgh Law will get nicked. Finally, on to Syracuse, alma mater legis to various Regent faculty members over the years.
Then, even if the thing still has any power, it passes further north, and ceases to be of interest to American legal education.
:: David M. Wagner 6:23 PM [+] ::
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The 9th Circuit has forced a postponement of the California recall election on equal protection grounds, citing, of course, Bush v. Gore. (En banc and S.Ct. action still possible.)
Well, I said it back then too: I don't really think the Equal Protection Clause has anything to do with voting -- but my side lost that fight back in the '60s, and does anyone really expect the Supreme Court in 2000, or the 9th Circuit now, to resolve these cases as if Baker, Reynolds et al. were not good law?
:: David M. Wagner 6:13 PM [+] ::
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:: Tuesday, September 09, 2003 ::
Ever have a client like this? (Via Zorak.)
:: David M. Wagner 12:09 PM [+] ::
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:: Monday, September 08, 2003 ::
Stanley Kurtz in NRO: The Federal Marriage Amendment gets the silent treatment. Not just your basic aint-media-bias-awful piece. The Alliance for Marriage doesn't fit the media script, and some of them don't want you to know that.
:: David M. Wagner 2:14 PM [+] ::
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:: Friday, September 05, 2003 ::
Solum on Estrada
Good post here by Prof. Solum on the Estrada withdrawal (via Eve Tushnet).
One of my lingering questions: a real 24/7 filibuster may be rough for the majority, as Larry indicates, but isn't that in part a function of how important you think the issue is? Also, the hardships can be smoothed out, you know. You can move cots into the cloakrooms, send staffers to and from your house for changes of clothing and David Baldacci novels, and Capitol Hill is full of restaurants that would just love to cater a filibuster! Greek food from Taverna, and Chinese from Young Chow, 'round the clock? Yum yummm!
What about judges and "ideology"? Larry says:
If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine.
That would be true if the so-called right-wing nominees of the past three Republican administrations were activists, as they are portrayed. But for the most part they are precisely the jurists who reject the instrumentalization of law for political purposes -- and that's what gets them in trouble! Larry's "neoformalism" is what Chuck Schumer calls "right-wing extremism," because it excludes, on principle, the use of judging for the advancement of leftist (or rightist, but it's the leftist stuff that Schumer cares about) political goals. Thou canst not win.
:: David M. Wagner 3:42 PM [+] ::
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:: Thursday, September 04, 2003 ::
Estrada withdraws, for now.
The speculation about "backlash at the polls" strikes me as though Napoleon had rejoiced that Waterloo had made his forced leaner and meaner.
Given more time I could probably come up with a better metaphor, but even if a great many Latinos do vote Republican as a result, the fact remains that the Democrats have effectively altered the Constitution to require sixty votes for confirmation of an identifiably conservative judge, and that the Republicans have done diddlysquat about it. (A few desultory cloture votes do not rise above the level of diddlysquat, imho.)
:: David M. Wagner 6:26 PM [+] ::
...
:: David M. Wagner 4:25 PM [+] ::
...
...a federal judge rediscovers the nondelegation doctrine (though without citing it), and blocks the FTC's do-not-call registry. See decision here.
Actually, there may be some merit to the argument that the statute under which the FTC promulgated the registry, in contrast to a similar statute that gave power over telemarketers to a different agency (the FCC), did not give the FTC power to promulgate the registry. But it did give the FTC power to regulate telemarketing abuses, and under long-standing (though wrong) nondelegation precedents, that's a broad enough grant of power to allow the FTC to set up the registry.
The court's reasons for refusing to extend Chevron deference to the FTC in this matter is that the registry is constitutionally infirm as a regulation of speech. This is absurd: since when is your home or mine a public forum?
:: David M. Wagner 2:47 PM [+] ::
...
First, about Montana v. Egelhoff. The only part of it that was assigned was the part that's in the book
-- Justice Ginsburg's concurrence. And admittedly, she discusses mens rea (and that's what the chapter is about) more than the Scalia opinion does. But if you want a much clearer exposition of what the case was about, go read the Scalia plurality opinion. This is not an assignment -- it's for your enjoyment.
Btw, with all due respect, I think the editors of our book are flat-out wrong in characterizing the O'Connor opinion as "plurality" just because it has four Justices on it. Both its content and its placement in the official reports make clear that it is a dissent.
Also, I believe the editors mischaracterize the Scalia opinion. "[W]ith three others" --what kind of language is that? Like, he went down to Little Italy and picked up three paesans to join him? The "three others" are the Chief Justice, and Justices Kennedy and Thomas. Furthermore, last time I checked, "three others" plus one makes four, and with Justice Ginsburg's concurrence (concurring with Scalia, that is, not with O'Connor), that makes a holding (though not an opinion) of the Court.
In short, Egelhoff is as much a Scalia opinion as, say, Michael H. (remember that from Con Law or Family Law?), though you'd never know it from the summary in the book.
All right, now here's a question that one of you sent me, with my answers:
Q. 1. At common law, if a crime requires a specific intent (purposely or knowingly) then the accused may present a defense to negate that element of the crime?
A. First, remember that the state must prove every element of the crime beyond a reasonable doubt. Going into a trial, the defense has nothing to prove: it's the government, not the defense, that must prove stuff. That said, I should add this: when a legislature limits the ways in which defendants can defend themselves, it's sailing close to the edge of what Due Process allows. But, as Egelhoff shows, depending on the history of certain defenses at Common Law, states may disallow particular defenses.
Second, don't confuse the specific/general dichotomy with the four MPC categories of mens rea. "Specific intent" means "with intent to..." or "with knowledge of..." etc.; at any rate, statutory expressions like that are markers for specific intent crimes. Your question seems to assume that we don't have specific intent unless the mens rea is "purposely" or "knowingly." That's intuitively true, since the terms "recklessly" and "negligently" don't really describe intent at all. Yet crimes of recklessness and negligence are at least crimes of general intent, no? Anyway, the MPC drafters didn't like the specific/general distinction, and weren't trying to accommodate it. If you try to mesh "specific v. general" with the MPC categories, you'll end up with a headache and blue smoke coming out your ears. I know -- I've tried it.
Q. And if there is no specific intent listed in the elements of the crime then the accused cannot present evidence to negate intent?
A. Well, he can always present evidence to negate general intent, but because general intent is usually proved from the conduct itself, evidence against general intent will often also be evidence against actus reus; e.g., "it was a muscle spasm, not an action."
Also, other mens rea defenses against a general intent crime may be available, such as reliance on an authoritative official statement of law.
Q. 2. But if a state does not recognize the specific/general intent distinction [as] common law does, then how does the court determine whether to allow the accused to bring a defense or evidence negating his intent?
A. A mens rea defense is usually possible for a general intent crime -- just harder to pull off than with a specific intent crime. Also, state legislatures have leeway in allowing or disallowing certain defenses: that's what Egelhoff is about. Finally, note that the mythical common-law jurisdiction of Multistateland -- which is also where my exams take place -- does have the specific/general distinction.
Q. My next questions are about mistake of law.
3. From my reading of US v. Learned and the following notes, I concluded that a person is presumed to know the law and is liable for violation of the law unless his mistake of the law negates the required intent of an otherwise lawful act. Is this correct?
A. Learned is in the book as an illustration of an older approach. Balance it out with Bray. Should this issue come up on the exam, analyze the problem both ways, and tell me which one you think is better, and why.
Q.4. Is there a distinction between mistake of governing and non- governing law? Or are they both not excuses or defenses to crimes?
A. One thing I said on Wednesday was that you can interpret the terms "governing law" and "non-governing law" as, respectively, "the statute under which the defendant is charged" and "some legal rule, external to that statute, that has an impact on the defendant's case." Mistake about the latter is much more likely than mistake about the former to function as a defense (see Bray), but the former may also do so, especially if it negates the mens rea of a specific intent crime.
:: David M. Wagner 8:29 PM [+] ::
...
:: David M. Wagner 2:15 PM [+] ::
...
Say, Bush v. Gore found an Equal Protection violation where different counties used different standards for determining voter intent, didn't it? Does it follow that there's an Equal Protection violation when different counties use different types of voting machines? That would be a novel wrinkle in constitutionalized election law -- one that Robert Bork foresaw (in a short article in FIRST THINGS, I think), but not one that Bush v. Gore requires.
Sorry for lack of links, but there's this hurricane, see....
:: David M. Wagner 3:36 PM [+] ::
...
My school, Regent, is going to get it first, and on the chin. But then the thing moves on to the Washington D.C. area, where there's a tempting smorgasborg of law schools: George Mason (my alma mater legis), Georgetown, Catholic, American, Howard, GWU. (Did I leave anyone out? I didn't mean to.)
Then it's up through the Maryland panhandle and into central Pennsylvania, like it thinks it's Robert E. Lee or something. Perhaps U. of Pittsburgh Law will get nicked. Finally, on to Syracuse, alma mater legis to various Regent faculty members over the years.
Then, even if the thing still has any power, it passes further north, and ceases to be of interest to American legal education.
:: David M. Wagner 6:23 PM [+] ::
...
Well, I said it back then too: I don't really think the Equal Protection Clause has anything to do with voting -- but my side lost that fight back in the '60s, and does anyone really expect the Supreme Court in 2000, or the 9th Circuit now, to resolve these cases as if Baker, Reynolds et al. were not good law?
:: David M. Wagner 6:13 PM [+] ::
...
:: David M. Wagner 12:09 PM [+] ::
...
:: David M. Wagner 2:14 PM [+] ::
...
Good post here by Prof. Solum on the Estrada withdrawal (via Eve Tushnet).
One of my lingering questions: a real 24/7 filibuster may be rough for the majority, as Larry indicates, but isn't that in part a function of how important you think the issue is? Also, the hardships can be smoothed out, you know. You can move cots into the cloakrooms, send staffers to and from your house for changes of clothing and David Baldacci novels, and Capitol Hill is full of restaurants that would just love to cater a filibuster! Greek food from Taverna, and Chinese from Young Chow, 'round the clock? Yum yummm!
What about judges and "ideology"? Larry says:
If judicial selection is all about political ideology, there is a cost to be paid. Ideological judges are legal realists. They vote on the basis of their political preferences and not on the basis of the law. Ideological judges can be highly skilled in the craft of judging, but this is unlikely. If you see the law as a mere instrument of power, you are unlikely to care enough about the law to spend the long hours required to achieve true mastery of intricate and interconnected web of legal doctrine.
That would be true if the so-called right-wing nominees of the past three Republican administrations were activists, as they are portrayed. But for the most part they are precisely the jurists who reject the instrumentalization of law for political purposes -- and that's what gets them in trouble! Larry's "neoformalism" is what Chuck Schumer calls "right-wing extremism," because it excludes, on principle, the use of judging for the advancement of leftist (or rightist, but it's the leftist stuff that Schumer cares about) political goals. Thou canst not win.
:: David M. Wagner 3:42 PM [+] ::
...
The speculation about "backlash at the polls" strikes me as though Napoleon had rejoiced that Waterloo had made his forced leaner and meaner.
Given more time I could probably come up with a better metaphor, but even if a great many Latinos do vote Republican as a result, the fact remains that the Democrats have effectively altered the Constitution to require sixty votes for confirmation of an identifiably conservative judge, and that the Republicans have done diddlysquat about it. (A few desultory cloture votes do not rise above the level of diddlysquat, imho.)
:: David M. Wagner 6:26 PM [+] ::
...
