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, December 27, 2006 ::
"We must obey God rather than men." -- Acts 5:29
"Finally, the article questions the critics' premise that when religious and professional expectations do conflict, religious expectations are necessarily better." -- Prof. Bruce A. Green, Fordham University School of Law
:: David M. Wagner 3:09 PM [+] ::
...
:: Friday, December 22, 2006 ::
Here is how WSJ assistant editorial features editor and MSM die-hard Joseph Rago attacked blogs the other day; here is Iowahawk's take on what he really meant.
:: David M. Wagner 4:50 PM [+] ::
...
:: Friday, December 15, 2006 ::
Two more Criminal Law questions
Prof. Wagner,
In regards to mens rea, there is a rule from one of the cases that a criminal statute that is otherwise silent as to intent should not be strict liability unless is was a crime known to the common law. Another case, as well as the MPC, says that strict liability should never be inferred from silence. How should we treat this difference for exam purposes? Thanks.
Ummm, actually, the rule is that a criminal statute that is otherwise silent as to intent should not be read as imposing strict liability AS LONG AS it was a crime known to the Common Law. Have another look at Morrissette.Do we need to know MPC Section 204? I don't think we talked about it in class, but I'm not sure, and it's very confusing.
I don't (at least not by section number), so I don't see how I could expect you to! Otoh, if 204 refers to a concept that we talked about in class, you may need to know that concept.
:: David M. Wagner 12:10 PM [+] ::
...
:: Thursday, December 14, 2006 ::
CRIMINAL LAW EXAM Q&A -- Your questions answered!
Professor Wagner~
Could you give our class some idea of what the final will be like? Will we need to know case names, names of specific rules/tests, or just criminal law rules applied to facts? Any insight you could give would be much appreciated. Thanks!
In general, no case names. The exceptions would be those few rules that we covered that are known by their case name (e.g. the "Redline rule," the "M'Naghten test"). There weren't many of those.Prof. Wagner:
When an individual is actually an actor (active participant) in a crime, is it true that they are not liable as an accomplice, but rather as a principle in the 1st degree? Consider the following: A and B enter a house for the purpose of killing everyone insider. A enters the room of the children and kills them both, B enters the room of the parents and kills them both. In this hypo, is it true that A and B are liable for 1st degree murder of the respective victims, but also guilty under accomplice liability for the murder of the victims to which they didn't pull the trigger?Or is this simply felony murder to the victims to which they didn't pull the trigger?
I'm having a hard time drawing a distinction between when the liability of the "accomplice" is cut off for acts by the principle in the 1st. For example, if A goes into the bank to rob the bank, and B sits outside to drive the get-a-way car, it seems that if A kills someone while inside, both could be guilty of felony murder. However, what if A, finding the teller attractive, decides to rape her after robbing her. It seems as though B would not be liable as an accomplice to the rape, only the robbery b/c he didn't intend the rape. Is this correct?
They're accomplices to the crimes they did not directly commit. Remember, we're doing without "degrees" of complicity. (Of murder, yes; but not of complicity).
If I get more, I'll answer them.
:: David M. Wagner 3:32 PM [+] ::
...
:: Monday, December 04, 2006 ::
New avenue of attack on originalism? Cornell's Prof. Bernadette A. Meyler says, yes, the Constitution presumes certain Common-Law background rules -- but those rules were themselves fluid! Their function was only that of "supplying the terms of a debate about certain concepts, framing questions for judges but refusing to settle them definitively."
To which judges should say: Well, if 18th century Common Law didn't 'settle them definitively,' then neither will we. Back to the legislature with you!
But what judges probably will do is to take up Prof. Meyler's invitation to be "be responsive to certain alterations in external conditions, rather than static and inflexible." (This despite the fact that the invitation may well be addressed by Prof. Meyler to all who have to interpret the Common Law, and not only to judges.)
:: David M. Wagner 1:31 PM [+] ::
...
:: Saturday, December 02, 2006 ::
Cert also granted in this -- the "Bong Hits 4 Jesus" case. I love it: a little bit of Cohen, a little bit of Tinker and Hazelwood, and maybe a splash of Free Exercise. Far out!
:: David M. Wagner 10:49 PM [+] ::
...
Cert granted today in this case. A chance to clarify Flast v. Cohen, or even, perhaps, to get rid of that anomaly in the doctrine of standing.
:: David M. Wagner 10:47 PM [+] ::
...
Miller-Jenkins case. Lisa Miller made a legal mistake very early in this case when she applied to a Vermont court for dissolution. Arguably, this means that under PKPA and UCCJA, Vermont has to retain jurisdiction of the case. Including all its incidents, such as child visitation? Maybe, maybe not: according to my colleague Prof. Lynne Marie Kohm, the fact that the (artificial) conception of Isabella took place in Virginia should give Virginia jurisdiction over custody and visitation. But it's close.
Also, the recent success of the marriage amendment in Virginia may have had a paradoxical effect. Until then, a holding such as the the Court of Appeals has handed down might have implied legal recognition by Virginia of same-sex relationships in some form. The new amendment cuts off that potential collateral meaning, so the Virginia court was freer than before to defer to Vermont.
:: David M. Wagner 4:45 PM [+] ::
...
"Finally, the article questions the critics' premise that when religious and professional expectations do conflict, religious expectations are necessarily better." -- Prof. Bruce A. Green, Fordham University School of Law
:: David M. Wagner 3:09 PM [+] ::
...
:: David M. Wagner 4:50 PM [+] ::
...
Prof. Wagner,Ummm, actually, the rule is that a criminal statute that is otherwise silent as to intent should not be read as imposing strict liability AS LONG AS it was a crime known to the Common Law. Have another look at Morrissette.
In regards to mens rea, there is a rule from one of the cases that a criminal statute that is otherwise silent as to intent should not be strict liability unless is was a crime known to the common law. Another case, as well as the MPC, says that strict liability should never be inferred from silence. How should we treat this difference for exam purposes? Thanks.
Do we need to know MPC Section 204? I don't think we talked about it in class, but I'm not sure, and it's very confusing.I don't (at least not by section number), so I don't see how I could expect you to! Otoh, if 204 refers to a concept that we talked about in class, you may need to know that concept.
:: David M. Wagner 12:10 PM [+] ::
...
Professor Wagner~In general, no case names. The exceptions would be those few rules that we covered that are known by their case name (e.g. the "Redline rule," the "M'Naghten test"). There weren't many of those.
Could you give our class some idea of what the final will be like? Will we need to know case names, names of specific rules/tests, or just criminal law rules applied to facts? Any insight you could give would be much appreciated. Thanks!
Prof. Wagner:They're accomplices to the crimes they did not directly commit. Remember, we're doing without "degrees" of complicity. (Of murder, yes; but not of complicity).
When an individual is actually an actor (active participant) in a crime, is it true that they are not liable as an accomplice, but rather as a principle in the 1st degree? Consider the following: A and B enter a house for the purpose of killing everyone insider. A enters the room of the children and kills them both, B enters the room of the parents and kills them both. In this hypo, is it true that A and B are liable for 1st degree murder of the respective victims, but also guilty under accomplice liability for the murder of the victims to which they didn't pull the trigger?Or is this simply felony murder to the victims to which they didn't pull the trigger?
I'm having a hard time drawing a distinction between when the liability of the "accomplice" is cut off for acts by the principle in the 1st. For example, if A goes into the bank to rob the bank, and B sits outside to drive the get-a-way car, it seems that if A kills someone while inside, both could be guilty of felony murder. However, what if A, finding the teller attractive, decides to rape her after robbing her. It seems as though B would not be liable as an accomplice to the rape, only the robbery b/c he didn't intend the rape. Is this correct?
If I get more, I'll answer them.
:: David M. Wagner 3:32 PM [+] ::
...
To which judges should say: Well, if 18th century Common Law didn't 'settle them definitively,' then neither will we. Back to the legislature with you!
But what judges probably will do is to take up Prof. Meyler's invitation to be "be responsive to certain alterations in external conditions, rather than static and inflexible." (This despite the fact that the invitation may well be addressed by Prof. Meyler to all who have to interpret the Common Law, and not only to judges.)
:: David M. Wagner 1:31 PM [+] ::
...
:: David M. Wagner 10:49 PM [+] ::
...
:: David M. Wagner 10:47 PM [+] ::
...
Also, the recent success of the marriage amendment in Virginia may have had a paradoxical effect. Until then, a holding such as the the Court of Appeals has handed down might have implied legal recognition by Virginia of same-sex relationships in some form. The new amendment cuts off that potential collateral meaning, so the Virginia court was freer than before to defer to Vermont.
:: David M. Wagner 4:45 PM [+] ::
...
