Cory
373 posts
Cory
@corychansen
Impersonal Account. Not advice. Opinions not attributable to myself or others.
DC Katılım Kasım 2009
1.3K Takip Edilen218 Takipçiler
After having watched The Devil Wears Prada for the first time, my take away is this: It's well done, passes the Bechdel Test, and unrealistic because Andy would never get a good recommendation as a body-person who left her boss as they were going into a big media event.
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@Superninfreak @DennisPeasant_ @dilanesper Right, these would be fact questions that would be settled case by case. And a reasonable inference at least some times may be that the owner was driving.
I would also wonder if there could be a negligent supervision theory, though you’re the actual criminal lawyer here.
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@corychansen @DennisPeasant_ @dilanesper Sure, you could have a trial. But the defense has an extremely strong argument, “the prosecutor never proved that my client drove the car.”
If the prosecutor tells the jury that the defendant should have testified then that’s an immediate mistrial issue for burden shifting.
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I got this response a few times and I think we should be a little more clear about the relationship between speed cameras and proof.
Let's do a thought experiment. Imagine a speeding ticket is a misdemeanor, with a jury trial. How will a state prove you were speeding?
Rath@mak3333
The driver is undetermined. It's a camera ticket against the car not the person. The owner of the car pays a civil fine. I suspect it might be problematic to impute criminal liability on him though. NYS is going to impose a speed limiter on vehicles with more than a certain amount of such tickets. I don't really see much of a down side to that.
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@DennisPeasant_ @dilanesper I would think the idea is that starting with the owner is a reasonable starting point. And if the owner wasn’t driving, they can then say so.
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@corychansen @dilanesper Liability is different than criminal guilt.
And I'm not even talking about that either. My point is that if you see a car being driven, it's not a reasonable inference to say "well, that must be the owner"
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@Superninfreak @DennisPeasant_ @dilanesper That’s what trials are for. But using ownership as a starting place seems reasonable. And if the owner wasn’t driving, they have a pretty high incentive to say so during trial. Higher if it’s criminal liability. And then the fact finder will decide who is right.
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@corychansen @DennisPeasant_ @dilanesper “This is your car so you are probably responsible for the damage it caused” is easier to establish than “this is your car so we know beyond a reasonable doubt that you were definitely the one driving it, even though we have no evidence of that other than the vehicle registration”
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@corychansen @DennisPeasant_ @dilanesper Civil liability and criminal convictions with jail time are very different situations with different standards of proof.
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@DennisPeasant_ @dilanesper I’m not sure this is actually responsive. Joint liability is not novel. The idea that duties accompany (property) rights isn’t either. There are many roads to Dilan’s point.
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@dilanesper Who assumes that?
People drive cars that don't belong to them all the time. Cars have multiple owners.
That a car was being driven by its owner, at a specific point in time, does not seem like a fact that could be reasonably inferred by anyone, absent further information.
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@ClarenceMaximus @HabCorpLinguist It’s never really made sense to me to try to project the modern debates onto the past. There are similarities definitely but also differences. There’s no need to be anachronistic.
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Public meaning textualism/originalism has a longer pedigree than this article suggests I think.
From Chief Justice Marshall in Ogden v. Saunders:
“Much, too, has been said concerning the principles of construction which ought to be applied to the constitution of the United States. On this subject, also, the Court has taken such frequent occasion to declare its opinion, as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;—is to repeat what has been already said more at large, and is all that can be necessary.”
Certainly has shades of intentionalism, but firmly grounded in public meaning as well.
Lawrence Solum@lsolum
Scalia's textualist muses weren't the Framers—they were antebellum jurists of the 1830s–50s who reframed law as ordinary communication and laid the groundwork for judicial supremacy. Marco Basile (Boston College) in NYU Law Review. papers.ssrn.com/sol3/papers.cf…
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@ClarenceMaximus It’s been a minute since I’ve looked at the ex ante view of its legality tbh. I do think there’s a difference between intent to unconstitutionality and legislating in a gray area. And in the latter camp you could see avoidance serving a role under a rationalist presumption.
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I think while that worry is definitely there, the countervailing motivation is that if the alternative is simply not to pass their signature accomplishment in the first place, they will probably shoot their shot. See Obamacare, which I think basically every member of Congress understood would face the wrath of the courts to some extent.
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After thinking about it more, here is what I think is the textualist basis for opposing constitutional avoidance while abiding by the presumption against implied repeal:
Repealing a law is an act Congress is actually capable of and can do with ease. It is also a major and consequential act, and so in the absence of a statement that they are repealing a law, the ordinary reader does not expect that they are doing it. It isn’t that the public presumes Congress to legislate consistent with past statutes; it’s that they presume Congress will say when they aren’t. There is no such assumption that Congress will “speak clearly when they choose to violate the constitution.” Which means you can’t infer it from the “elephants in mouseholes” reading that you can get the presumption against implies repeal from.
Clarence Maximus@ClarenceMaximus
Here's a question. I am someone who's generally against constitutional avoidance if it is ever going to have you depart from ordinary meaning (Scalia and Thomas have both endorsed this position). But is it reasonable to take that position while also endorsing the presumption against implied repeal? Is there reasoning motivating the presumption against implied repeal that does not apply to constitutional avoidance?
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@ClarenceMaximus Maybe? It would be interesting to know the views of the legislators and staff. Anecdotally, people worry about having their signature accomplishment undone.
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@corychansen I think that relies on a bit of an unnecessary legal fiction that Congress believes the courts will never let them get away with passing an unconstitutional law
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@ClarenceMaximus Fair enough. Though if we’re assuming Congress’ rationality, it’d be rational to only pass laws that would be upheld. That would seem to get to avoidance.
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I’ve always been trying to focus on the expectations of the reasonable reader, I might not have made that clear earlier.
My point here is that I don’t think there is an analogous assumption. The assumptions are rooted in different things. The presumption against implied repeal is rooted in rationality alone, whereas avoidance is rooted in an assumption about Congress that they don’t want to stretch the boundaries of their constitutional authority. And the textualist rule is generally that the only assumption about Congress which we ascribe to the ordinary reader is that they are rational.
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@ClarenceMaximus Well, I think it’s more straightforwardly semantic to say ‘we have legislation that says X. We don’t have legislation that says not-X-anymore. So still X.’ But IMO the Barrett view of the MQD could be similar to a textualist defense of constitutional avoidance.
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@corychansen I think that’s maybe getting at the elephants in mouseholes point which I definitely agree with. But is there a reason we don’t also say that the ordinary reader presumes Congress legislates consistent with the constitution?
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Here's a question. I am someone who's generally against constitutional avoidance if it is ever going to have you depart from ordinary meaning (Scalia and Thomas have both endorsed this position). But is it reasonable to take that position while also endorsing the presumption against implied repeal? Is there reasoning motivating the presumption against implied repeal that does not apply to constitutional avoidance?
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@ClarenceMaximus I guess the point I was gesturing at is that if it’s implied, it’s not textual, so no bicameralism and presentment. It’s perhaps a little question begging, but it’s consistent with textualist presumptions.
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@corychansen But even an implied repeal has the force of bicameralism and presentment. So I don’t know if that would be a distinction.
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@BarExamTutor @KennethKirkPC People in general seem to have an unnaturally linear idea of success. In theory, success in law school predicts success as an associate predicts success as partner. But we all know rainmakers who were less good at law school than many associates (who may not even make partner).
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@KennethKirkPC And people who might need extra time on an exam might be perfectly capable of meeting these deadlines. The fact that these things are not identical makes a comparison very difficult.
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To be clear, I don’t think anyone can reasonably argue that having extra time on a strictly timed test is not an advantage.
The relevant question, though, is whether that given advantage provides a test taker an advantage over others or instead counterbalances the disadvantage of the disability such that now it’s a more equal field.
Those who think the disability itself is a farce will of course deem the advantage unfair. But those like myself who accept that people start at a disadvantage due to a variety of diagnoses will believe in the counterbalance theory.
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Really an under appreciated dimension of the argument today.
Dan McLaughlin@baseballcrank
Is "jus" pronounced with a j, or like "yoos"? I assume the latter, if you do Latin. Gorsuch pronounces the former, Barrett the latter.
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@norbertjmichel I’m not selling anything. And I haven’t read the full book admittedly. But it seems at least newsworthy if the expectations that we all seem to share are unmet, greater than before. It seems like an important economic phenomenon worthy of study.
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@corychansen No. And that’s not what i said. And im not trying to sell books based on the idea that promise was broken to those teenagers. So check the original post again thank you very much.
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First of all, who told them that? Second of all, if they heard it, who believed it?
Shame on anyone for saying or believing that placement in the upper middle class, or any other place, is automatic.
That’s not the way life works. It never has. It never will. If parents tell their kids otherwise, shame on them too.
Let’s start “fixing” this problem by adhering to reality instead of trying to turn the US into Cuba.
Noam Scheiber@noamscheiber
A generation of people in their 20s and 30s was told that if they do all this homework and take these AP classes and run up this debt and get their degree, their place in the upper-middle class would be secure. And suffice it to say it hasn’t worked out that way for a lot of them
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@norbertjmichel You think it’s ludicrous that teenagers took AP classes, rather than do any number of the other things teenagers might rather do, because it was supposed to be good for their futures? You think it’s ludicrous that college debt was suppose to have an ROI?
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@corychansen Read again Cory. Do x to secure y. That’s what it means. And it’s ludicrous.
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I really don't get this. Mills could easily have retired at the end of her governorship with a fine legacy. Even now, she could withdraw from the race, frame it as "passing the baton," and be remembered fondly for that. Instead, she insists on waging this knock-down, drag-out campaign for yet another office at 78-years-old — and with visibly flagging support to boot. Why? Just why?
Janet Mills@JanetMillsforME
Today, I launched my “Women for Janet” coalition, a growing group of incredible Maine women and leaders who have endorsed me in this race and who I’m proud to fight beside. I have always fought for our freedoms and rights, and I always will.
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