Job after law school?

69% of my blog readers are worried about their job prospects after law school!

What are you all doing to find jobs? I know it took me about 6 months or so to find a full-time job and the job I found is not even a legal one. Are any of you willing to find a semi-legal job just to pay the bills? Law firms are reducing their number of new hires or even firing. But the economy has to improve, right? Good luck to all you job seekers out there!

More on Posner & Strict Liability

Tim Lynch dropped me an email concerning my review of part of his book "In the Name of Justice" (his blog post is here). He comments:

Btw, thinking it over some more, I'm not quite sure we can say that Posner is oblivious to the unjust cases and is therefore wrong. He's a smart guy and may just really believe that the "benefits" outweigh the "costs." We can say he's wrong but for a different reason. See p. 196 note 31.

This, I'm certain, is a comment on my "wisdom of ignorance" appellation to statutory rape strict liability argument. Let me clarify this. I don't believe that Judge Posner is an ignoramus. I do believe, and this is a conceit on my part (probably shared with most criminal law attorneys), that Judge Posner has an academic, theoretical knowledge as opposed to an on the ground, knowing it in your bones, fighting the fight, experiential knowledge. It's all well and good to stand on high and decide that you will sacrifice 5 people who did nothing immoral in order to catch 20 who did and discourage 100 who might. Yet, if you're the prosecutor who faces a command from your legislature to sacrifice 5 innocents, because the steer clear function of strict liability doesn't work if you don't, or the defense attorney watching your innocent being sacrificed "for the greater good" it's despicable.

As well, when I speak of the wisdom of ignorance I'm not just speaking of Posner. In fact, I'm mostly speaking of the emotional basis of the statutory rape argument. Statutory rape, because of its emotional, irrational trigger - harm against the young - is always the strongest case for strict liability. If there was ever anything someone would be willing to sacrifice an innocent in order to protect its his daughter. No thought need be applied. Protect. Period.

Try that same rationale with the truck driver scenario and people will look at you like you are stoned. "You're saying each and every UPS driver is committing a felony when he delivers the drugs that are shipped thru UPS without his knowledge Really? You're serious?" And you'll notice that the government isn't exactly going around and arresting package delivery drivers in job lots.

Gotta go to work. Hope to further discuss this tonight as to other, non-ignorance reasons why strict liability is wrong.

Introducing "Little Red"

Not sure what kind of dog he is, but "Little Red" here adopted into the family last week. He's 15-20 pounds, has a little bushy mane, and is young. I'm hoping he's still got some growing to do since his paws are big for his body, but I suspect he'll max out at maybe 30 pounds. The little guy is fearless and on the first night stood nose to nose with my hound a couple times (both growling) until I broke them up (my lab just ignores him).

In the Name of Justice: Posner v. Hart

{1}About 3 weeks ago, CATO sent me a copy of "In the Name of Justice" so that I could read through it and comment here on CrimLaw. It's a series of replies to Henry Hart's 1958 article "The Aims of the Criminal Law." As such, it's difficult to review the book as a whole, so I thought I'd discuss Professor Hart's article and Judge Posner's reaction.

Hart

{2}Hart is an idealist. His overarching ideal is that the purpose of criminal law is to instruct people as to what society views as the absolutes of proper behavior (this far and no further). His definition of criminal law is "community condemnation of antisocial conduct" combined with "the imposition of unpleasant physical consequences." He walks a line between deterrence and rehabilitation, rejecting both as the ultimate goal of criminal law. Deterrence is rejected as negative while the purpose of the law is positive; a person is to make his own moral choices and the knowledge of the consequences of his acts shall train him to make the proper choices. Rehabilitation is rejected because it views the offender as someone who is defective and removes the responsibility of his choices from him; one cannot make moral choices without being responsible for the act and consequences flowing from that action. Succinctly, criminal law lays down the minimal societal parameters within which moral actors can, of their own free will, choose to act and, if they fail in their choice, have knowledge of the consequences they face.

{3}Hart posits two corollaries to his theory. The first is that strict liability has no place in the criminal law. This boils down to lack of knowledge and thus lack of intent. A moral actor cannot make a free will choice if he does not know there is a choice to be made. Hence, the entire purpose of the criminal law is made void.

{4}The second corollary is that punishment should be no more severe than necessary. It should both express the community's condemnation and be tailored to returning the offender to society as soon as possible as "responsible and functioning member of the community."

Posner

{5}Posner is of a different stripe. It's difficult to suss out exactly what Posner's position is, but he very clearly, and rather crudely, opposes Hart. He rejects out of hand Hart's premise of criminal law as a positive instructive force for teaching people to act as society expects.

{6}As to Hart's first corollary, the rejection of strict liability, Posner's having none of it. He strongly embraces a "steer clear" credo. If it's strictly liable people will steer very wide of anything which might cross that line. Posner also rejects the balance to which Hart attaches to the second corollary. He sees the punishment as far more important than any stigma attached to a conviction. "[T]he function of punishment is to deter crime by subjecting the criminal to a degree of disability that exceeds the utility he would obtain from the crime."

{7}He eventually gets to his rejection of Hart's premise. The government cannot press morality upon the public. Rather, the public condemnation of certain acts forces the government to illegalize them and attach a punishment appropriate to the public's level of condemnation of these acts. He ties all this to vengeance as a utilitarian tool for the implementation of retributive justice (although now supplanted by professional career incentives with the development of professional law enforcement and prosecutors). Posner never defines criminal law himself, but seems to adopt James Fitzjames Stephens': "[B]efore an act can be treated as a crime . . . it ought to be of such nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it."

{8}As a parting shot, Posner inflates Hart's position to one of Kantian/Protestant moral responsibility and then shoots down this straw man by pointing to the fact that different people performing exactly the same act can be punished differently depending upon the consequences of that act.

Lammers

To begin with, esthetically Hart's article is much better written than Posner's. Part of this is because Hart's article is less cramped at 6 times the length of Posner's and is an argument in favor of a position, rather than a reaction. Part of it is that Posner's response is just poorly written. Still, the important considerations are actually the arguments being made so let's consider them.

Hart's basic premise of criminal law as an incentive and stigmatizing tool to train people to be honest is true in the great majority of cases {1}. Honest people knowing an act to be illegal do not partake of that act. Posner's argument against Hart's social organization principle is that {7} the government can't do this because the violative acts are things which the populace already condemns and forces the government to adopt because of its condemnation. This is a distinction without a difference. Social training is not something which ends at a particular moment. It is a continuing process. There will always be outliers and youths who have not yet learned proper societal behavior. When the populace presses upon its government criminal laws it is setting up a continuing set of rules by which these people will know the consequences of their choices and thus fall under Hart's premise.

However, while Hart's second corollary is solid in concept, I think Posner is correct in rejecting the method by which Hart envisioned its implementation for offenders. Hart is entirely too optimistic about the continuing ability of the mere stigmatization of an immoral choice being able to affect the choice of a moral actor. Stigmatization works to keep honest people honest and perhaps with those convicted the first time (maybe the second). Thereafter, it is almost certainly a failed endeavor. As I've previously stated, "Once a person has demonstrated that he cannot, or will not, conform to basic societal norms removal from society as a protective measure becomes the only way to deal with the offender." Posner is also correct in his assertion that in serious cases the way in which society shows the act to be morally reprehensible is through the imposition of stiff punishment and that a failure to do so damages the system.

Nevertheless, Posner's consequetialist argument is a red herring {8}. The fact that different punishments can flow from the same act depending on the consequence does not remove the possibility of conviction as a moral consequence to an immoral actor. In actuality, the moral actor faces the most severe punishment every time he makes an immoral decision which might result in more than one punishment depending on consequences.

Turning to strict liability in criminal law, Hart has by far the better argument; it does not make sense to punish people for things they did not intend or intend to recklessly risk. However, Posner's position is at least prevalent here in Virginia.

[C]ourts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime.

Posner roots his anti-intent argument in the "intent's hard to prove" vein and the it'll make people steer clear justification (the Virginia Supreme Court's reasoning is basically "'cuz we said so"). It is, of course, sometimes hard to prove intent. In fact, trials are often held because a pesky defendant has decided to assert that his intent was other than to commit the act of which he is charged.

Posner's critique rings hollow. UPS, FedEx, Postal drivers (et cetera) should not be held strictly liable for the fact that drugs are, most assuredly on a daily basis, being shipped illegally in their trucks. There are, of course, other situations in which a driver might act in a manner indicating willful ignorance and that's why we have juries and jury instructions

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

1. Actually suspected that (he/she) might be involved in criminal activity;

AND

2. Deliberately attempted to avoid taking steps to confirm or deny those suspicions;

AND

3. Did so in order to provide (himself/herself) with a defense in the event of prosecution.

This is why we put 12 people in the box - to use their combined experiences and apply their common sense to real world situations in order to decide whether the driver has engaged in deliberate ignorance.

On the other hand, Hart's theory has no problems with willful blindness. It's not even an exception to the rule. Willful blindness is a violation of minimal societal rules in that it is a purposeful omission of action in the face of likely criminal activity in order to allow one's own ignorant participation in that same criminal activity.

Posner's strongest argument is born of the wisdom of ignorance: the statutory rape argument. The statutory rape, best-interest-of-the-child, absolute strict liability is a creature born of emotion divorced from logical thought. We must protect the children at all costs. Therefore, anybody who crosses the line gets convicted no matter the circumstance. "The effect is to induce men to steer well clear of young-looking women, a form of care they would be less likely to use if ignorance were a defense." (p. 97)

This pretty much brands Posner as someone who has not had actual trial experience. He's never seen that trial wherein the immature 18 year old defendant (looking all of 14) has "raped" the 14 year old predatory girl (who looked 20) who had a list on her bedroom door of men she aimed to have sex with and had crossed several names off as she achieved her goal. Y'know, the same girl who turned the defendant in because she got mad at him when he found out her age and refused to have sex with her anymore. Guilt via strict liability. I've seen at least two cases with facts similar to this in my 8+ years practicing (none at my current locale); persons in larger jurisdictions can probably relate more of the same. This is how the "justice" of strict liability plays out in real life and anyone who thinks that is the proper way for the law to work is clearly engaging in faulty reasoning. Ignore the facts; ignore justice as it applies to a particular situation; chug along with statistics and plow under any sap stupid enough to get in the way of that broad prophylactic line meant to protect innocents from evil doers by destroying anyone (moral or not) who gets near the line.

In the Name of Justice

Now you see why I couldn't do a review of the entire book. Just imagine this same sort of post repeated for each and every author who replied to Hart's article. I commend this book to you all and hope you spend some time thinking about the theory behind the things that we do.

Judicial Reviews Are Dead

So, I'm sitting, eating lunch with a group of the sharpest local legal minds and someone mentions that the judicial review program is dead. The Chief Justice has so announced it. I look over at the gentleman and asked, "But wasn't there a statute requiring the program?" "Yeah, but the General Assembly didn't fund it after the problems this year and the Chief Justice now says it's dead."

Hmmm . . . Now, I wasn't the greatest fan of the program. I didn't have much of a problem with the judges getting reviewed, but I was concerned about the problems which could come from the system. Still, when Dave Albo, chairman of the House of Delegates Courts of Justice committee, left a comment I couldn't come up with a better alternative. All the solutions I can think of would rely on checks and balances and require a change in Virginia's constitution.

Still, I was pretty sure a program couldn't just be ended because the Supreme Court's budget was cut, so I looked up the statute.

§ 17.1-100. Judicial performance evaluation program.

The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By September 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice. The reporting requirement of this section shall become effective when funds are appropriated for this program and the first justice or judge is evaluated.

So, the program became law in '02 and was not funded until '07 (?). Funds were appropriated; the first judge was evaluated. What authorizes shutting the program down? Not sure, unless you read that last sentence as a continuing dual requirement. I know it seems a stretch, but I suspect the Chief Justice might win an argument about how a court should construe a statute.

Who knows, maybe next time they'll rewrite the statute so that the Supreme Court is entirely out of the loop.

Chief Justice Leroy Rountree Hassell, Sr.The Man, The Myth, The Legend

Controversy, controversy everywhere. I think I've only blawged about one intervention of the Chief Appellate judge in the operation of the trial courts.

Virginia Standard of Review: Sufficiency of the Evidence

When considering a challenge to the sufficiency of the evidence on appeal, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original; citation and internal quotation marks omitted). Instead, we ask only '"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original). See also McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, ___ (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009). These principles recognize that an appellate court is "not permitted to reweigh the evidence," Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority "to preside de novo over a second trial," Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). This deferential standard of review "applies not only to the historical facts themselves, but the inferences from those facts as well." Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a fact finder may "draw reasonable inferences from basic facts to ultimate facts," Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted), unless doing so would push "into the realm of non sequitur," Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).

Kenneth Anthony Clanton v. Commonwealth, Va. App., no. 1018-07-2 (deciding whether moving a child to another room while you beat his father for information in the first room is abduction)