Posts Tagged ‘law’

That’s what Bart Simpson told his family in “Homer v. the Eighteenth Amendment.” “I’ll go with you!” said Homer. Marge put a stop to it, and that was that—except, of course, that Bart’s drinking started a temperance campaign that led to prohibition. As the episode illustrates, things get complicated when the government gets involved.

That’s perhaps the moral of this story of a University of Michigan professor who takes his son to a Tigers game and buys him a lemonade—which, unknown to him, was hard lemonade. After a trip to the hospital, a couple of days in foster care, and a week during which dad was banned from his own house, things are back to normal.

That led me to wonder what the law is in my state about parents giving their own minor children alcohol. Here it is. Most states are not so lenient.

106.04 – Consumption of Alcohol by a Minor
(a–b) A minor commits an offense if they consume alcohol unless they are in the visible presence of, and have the consent of their adult parent, legal guardian, or spouse.
§ 106.05 Possession of Alcohol by a Minor
(a) A minor commits an offense if they posses an alcoholic beverage.

(b) A minor may possess an alcoholic beverage:
• while in the course and scope of the minor’s employment if the minor is an employee of a licensee or permitted and the employment is not prohibited by this code
• if the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court
• if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.

(Notice, by the way, the failure of anaphoric agreement and the gender confusion in the above: “a minor… they” as well as “a minor… his.” Thank you, gender-neutral language police.)

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Google Street View

I spent a day this week touring Pittsburgh via Google Street View, which is amazing. Now comes news that a Pittsburgh couple has sued Google for including their house in street view, claiming that it has harmed their property’s value. But you could already view a less attractive picture of their house on the Allegheny County assessment web site, and learn all sorts of other facts about it. (They bought it in 2006 for $163,000; current assessed value, $121,000; condition, Fair; Grade: D+; etc.) I would think that Google’s images increase the value of the house.

I’m reminded of the old lawyer joke: Scientists are starting to use lawyers in their experiments instead of rats. Why? Two reasons. First, they’ve found that, after a while, researchers start getting attached to the rats. That’s not a problem with lawyers. Second, they’ve found that there are some things that rats won’t do….

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Spitzer’s Boner

Eliot Spitzer has resigned as Governor of New York, giving the state its first African-American governor.

Michael Barone has reflections on the danger of selective enforcement when a law on the books generally goes unenforced:

When society has effectively legalized something that is still theoretically illegal, there is always the possibility of selective prosecution—targeting individuals who are in disfavor with someone in government. Selective prosecution is tyranny, and the possibility of selective prosecution is a powerful argument for legalization of the behavior that the society has chosen to condone.

I call this the Merkle problem. Fred Merkle was the youngest player in the major leagues in what may have been the game’s most exciting season. (Six teams finished within 1 1/2 games of the pennant.) On September 23, 1908, Merkle, first baseman for the New York Giants, was on first base after singling in the ninth inning of a game against the Cubs, sending Moose McCormick to third. Al Bridwell, the next batter, singled to center, scoring McCormick, and apparently ending the game. Merkle trotted to the dugout. Cubs second baseman Johnny Evers (of “Tinker-to-Evers-to-Chance” fame) noticed that Merkle hadn’t touched second base, and called to the center fielder Solly Hofman to throw him the ball. With many of the 20,000 fans present storming onto the field, Giants pitcher Iron Man Joe McGinnity found the ball before Hofman could get to it and threw it into the stands. Evers got a new ball from umpire Hank O’Day and touched second. O’Day called Merkle out, negating the run (and depriving Christy Mathewson of the win; he had 37 others that year). Darkness prevented resumption of the game, which was declared a tie.

The Giants and Cubs ended the season tied. On October 8, therefore, the game was replayed, and the Cubs won 4-2.  The Giants fell back into a tie with the Pirates for second place.  Chicago went on to beat the Detroit in the World Series for its third straight series win.

Merkle’s “boner,” as it came to be known, wasn’t the rookie mistake it was later thought to be. There was a rule that a force out would negate a run scored before the out, just as there is today. But nobody before O’Day enforced it; Merkle’s action was routine at the time.

The general moral: having unenforced laws on the books is a recipe for controversy, selective enforcement, injustice, and personal disaster. That may be an argument for dropping the law, as Barone notes; it may also be an argument for enforcing the law or delineating more carefully circumstances in which the relevant behavior is prohibited.

Is Merkle’s boner analogous to Spitzer’s? (I’m so sorry.) I don’t think so, for at least four reasons. First, prostitution is not routinely practiced. It is tolerated by police forces with more pressing problems, but it remains a fringe activity. Second, Spitzer was a prosecutor who made a reputation partly by going after prostitution rings; it would be as if Merkle had previously been the chief enforcer of the forced-out rule. Third, Spitzer, as prosecutor and then Governor, was an official in charge of enforcing the laws, whatever they happen to be. At the very least, he needed to abide by those laws himself. Finally, prostitution is exploitation, incompatible with respect for the other party as well as self-respect. That it is mutual exploitation doesn’t change that.

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I recently attended a talk by Hadley Arkes on jurisprudence in which, among other things, he criticized the reasoning of the Supreme Court in Brown v. Board of Education, the landmark school desegregation case from 1954. The Court declared the unconstitutionality of segregation on the basis of Kenneth Clark’s social science research on the self-esteem of black children, contending on that basis that “separate but equal” education was a myth: “Separate educational facilities are inherently unequal.” In addition to mischaracterizing the research, the Court’s decision was limited in several respects: (1) It failed to address the question whether separate facilities would be constitutional if they could be made equal; (2) It offered at best a contingent reason to reject segregation, finding nothing objectionable in segregation per se; and (3) it struck down segregation in education on grounds specific to education; its reasoning could not simply be duplicated in other cases involving segregation in other contexts.

What puzzles me is a question I have heard Robert Bork raise: Why didn’t the Court address segregation much more directly? Consider Chief Justice Warren’s introduction:

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.

Why not continue:

In every case, white students were permitted by law to attend the schools in question; black children were not, solely because of their race—a factor, all parties agree, of no relevance to providing or achieving the goal of education.

And then simply conclude, with Warren:

[S]uch segregation is a denial of the equal protection of the laws.

Arkes thinks the Court could not take this direct path because it had eschewed natural law. Undoubtedly natural law would reinforce the direct approach, but I don’t see why it’s necessary to it. I suspect the answer lies in the Court’s understanding of equality itself—roughly, in understanding it substantively rather than procedurally, as involving rights to equal things instead of rights to equal treatment under the same rules.

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Roger Kimball captures nicely why I can’t support John McCain’s candidacy, regardless of other virtues he may have.  “Congress shall make no law….”

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Hans Bader points out that diversity training, adopted by many employers for ideological reasons or for protection against lawsuits, actually encourages legal action and creates serious vulnerability for employers. A further point: Anyone can call him- or herself a diversity trainer. There appear to be no standards; employers don’t even require that such trainers have law degrees or PhDs in psychology, two qualifications that might seem essential to what they claim to be trying to do. Even if diversity training could be done well—a proposition I’m unsure about—it’s therefore no surprise that it’s often done poorly and counterproductively.

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