Sunday, August 29, 2004

bartleby and i.
There is a classic story, Bartleby the Scrivener. It might be by Melville or one of those cats.
It is about a clerk in a law office, london i think [wall st?], before computers and typewriters,
who does less and less and eventually nothing, but won't leave.

*curiously i found the text on www.bartleby.com, which has great books online, a public domain repository. i'm all into those.

When I first read it, I wasn't sure quite what to make of it, comedy, horror, suspense?
Knowing a bit more now, it's a classic decription of clinical depression.
That's my situation.
I was brought up in a neo-victorian environment of high expectations, marked as a failure, a B student in household of A students, back when that meant something. Random beatings, well-intentioned, created leaned helplessness, while, since backtalk was verboten, i learned to suppress my rage, turning it inward, and became adept at being a passive-agressive brat.
This is a recipe for depression and introversion, probaby building on a genetic aspect. It was the 60s. Johnson was the tyrant in charge. Dad's home was his castle.
I was not diagnosed with major depression until I was 40, so my early years were painful, setting high goals, failing wildly. Drugs eased the pain and made life bearable, but didn't add to my coping skills. I limped along. Had a girlfriend for a few years and got through law school on the basis of that emotional support, now gone. Never made a go of it as a lawyer, it's more of an expensive hobby. Worked hard at a warehouse job, bought a house in the ghetto. Came into some family money which gave me the freedom to go crazier, lose everything over about 5 years. So at 44 i'm lost, drifting, in crisis.

I've been staying for 2 months with a guy whose condition is a lot like mine, and it gives me insight I've lacked, about what a bad roommate I've been during my more depressed times.
He won't get out of bed to work, so he's lost his job. he wont clean up after himself or the dogs, so there's a bug problem. The leaking pipe in the basement goes unfixed. And it seems like this month's rent won't get paid, but like bartleby he won't leave. The funny thing is he's the closest thing I have to a friend in real life right now; my other friends are on the computer or far away.

I need to kick him out, because the horror the horror, of the bugs and the dog smell, and that my being angry at him about these things is not healthy for me right now.
It is the age old problem - I can't stand people, people aren't comfortable around me,
without them i'm so lonely i can't stand it.
So if I were to re-read Bartleby, I would have a deeper understanding - of Bartleby, and of his co workers not understanding. But I don't have time to read. I'd stopped reading the morning paper. Stopped having it delivered because it just piled up on the porch.
I'm too busy not working. Like Bartleby.

Friday, August 27, 2004

Crescat Sententia: August 26, 2004 Archives baude on posner. in which it is revealed baude worked for posner, didn't know that part. see also bond, heidi.
as for me, i was offered a job in the real world today, and hope to turn it down.
waiting on callback from other place.

why i am a baudeholic:
And remember: once you read one sentence, even this one, you'll be driven to read more and more until your eyes give out!

Do you steal from your children's piggy banks to buy books?
No, didn't have kids, too busy reading.
Have you lost literally dozens of friends who died as a direct result of over-reading?
Have you ...lost your driver's license?
Has your doctor told you to either stop reading or die?
Nope, don't have a doctor.
Do you buy your books at different stores so the clerks won't say, "You back again?"?
Do you hide books in the garage and tell Irene you're going to get something there, in order to sneak a chapter?
Not irene specificly.
Have you ever been threatened with end-stage cirrosis of the eyes?
My mom is there. the glasses, the heavier glasses, the laser surgery, the glasses, the heavier glasses, the reading by magnifying glass.
If so, let's talk! Maybe you ought to get a sponsor in RA (Readers Anonymous) that you can call in the middle of the night when you get the urge to read.
once you read one sentence, even this one, you'll be driven to read more and more until your eyes give out!
I figure, by the time the singularity rolls around in 2012, I can get new eyes.

Thursday, August 26, 2004

This is a test of the nifty 'blog this' button on my google toolbar.
What i'm supposed to be doing instead is looking up info for my roommate to be a lilly test subject, so he could pay the rent, but one thing leads to another.

Wednesday, August 25, 2004

Why someone would need to embalm 25 bodies, pass a licensing examination, and complete a specified 60-credit program of undergraduate training for the required funeral director's license just to sell a box remains unclear to me. volokh
I had a hunch this might be an www.ij.org case; it is.

Back to “The Matrix”
First example: how technology will bring us to the world of The Matrix.
The matrix is a video online world that is so realistic that if one’s “avatar” (one’s electronic self, the player in the video world) is killed, one dies of shock. The current video online worlds, in which you create and manipulate your avatar by means of a computer screen and a mouse or joystick, are insufficiently realistic to cause many deaths; I know of only one, described in a great article by James Meek: ‘In October 2002 a 24-year-old man, Kim Kyung-jae, died of a DVT-like illness after playing an online game, Mu, virtually nonstop for three and a half days. “I told him not to spend so much time on the internet,” his mother told the BBC. “He just said, ‘Yes, Mum’, but kept on playing.” (According to Lance Stites of NCsoft the company has taken steps to encourage players to keep the distinction between real and virtual worlds clear. Now, messages appear periodically on screen reminding subscribers to “stretch your legs and see the sunshine once in a while”.)’ But already there is a video game in which you wear a headset that enables you to manipulate your avatar by brain waves. More matrix-like still is a technology under development whereby chips implanted in the brains of paralyzed people will enable them to operate computers by thought alone: they ‘will have a cable sticking out of their heads to connect them to computers, making them look something like characters in “The Matrix.”’ Implants.
Even in the current, primitive stage of online video world technology, literally millions of people are participating, many obsessively; the use of real money to purchase game money with which to buy equipment, clothing, and other assets in the video world is already a big business. A few years hence, people will be interacting in the video world by brainwaves alone, and in that “no hands” context they may forget who and where they are. The social consequences could be immense, and the political as well if government obtains control of the chips implanted in people’s brains to enable them to play and of the signals communicated to those chips. It will take many years to create a video online world as complex as that of The Matrix, where millions of avatars interact in a stunningly realistic simulation of a 20th century big city. But short of that, people will find it increasingly difficult to distinguish between the actual and virtual worlds in which they participate.
The law is slowly beginning to notice the video online world phenomenon; there is even a recent case in China in which an online player sued the video game company for allowing a hacker to steal the player’s virtual possessions!
The big question--what if any social controls should be placed on the evolution of video online worlds--is baffling and as far as I am aware has attracted little attention.
posted by [ Richard Posner ] on [ Aug 25 04 at 3:58 PM ] to [ ] [ 1 comment ] [ post diffusion: No trackbacks + technorati ]
(i haven't read crescat lately, but i have a hunch baude will already have blogged about this.)
update: shockingly, no. well, i'm off to kill time at the grocery store - i'm bugbombing my house, the $250 rental with no hot water - don't tell the zoning thugs.

Tuesday, August 24, 2004

i've been feeling a litte stressed lately.
part of what helps is i'm exploring some new creative outlets,
personal blogging over in the myspace universe,
and now digital photography.
photo will go here shortly.

Monday, August 16, 2004

i read yesterday about an important case decided recently by the 9th circuit.
it validates the positions i took in majors v abell.
i blog about it elsewhere, at ballots.blogspot.com amd majors.blogspot.com, but i'll note it here too. my life has been falling apart lately, in part because i spent several years getting majors ready to take to the supreme court, and then failed, and i've been depressed and upset about that, and some other personal catastrophes. so it's nice to get some validation from another circuit, if only the 9th, that i was i was right and they were wrong.

today's webcomic.
continuing our all baude all the time theme,
i frankly had never heard of milosz, except when will quotes his on pablo neruda.
i'm not even familiar with neruda's work, but i am aware of the problem of intellectuals,
french and otherwise, being too fond of communism.
particularly when it's no longer called communism, but 'metropolitian development', 'comprehensive planning' and so forth.

will, mill, milosz:
so this guy is dead.
what will become of his legacy?
will he be forgotten?
he seems pretty obscure to start with.
like most of the 6 billion people on the planet, i lack disposable income to go buy all his books.
is anything online?
at one point, i'd gotten the address of robert heinlein's literary executors, so i could pitch them the idea of putting a taste of his work into the public domain, so we could give a copy to every jumior high library. but i never got around to it.
there's alot of things i've never got around to.
it's the eldred problem. stuff is tied up in copyright hell, goes out of print. by the time it eventually, if ever, enters the public domain, it's been forgotten or lost or no longer speaks to us.
there's a guy, phillip deane gigantes, a greek journalist who writes about being a captive of the north koreans, and then living through an lbj-backed coup in greece. deeply moving stuff.
gigantes probably died of cancer last year, retired from the canadian senate. his books are not likely to be big sellers. it's a similar problem - this book came to me very much out of the blue, someone was throwing it away, and i got to share a bit of this amazing man's life and values.
he has other books, but i lack time and money, and will probably not read them, and who else will? and they will go out of print, and be forgotten. but if i could get off my ass, write a few letters, convince someone to release them online, make them free to the 1 billion who are wired,
they might sell more copies and stay in print longer, or could use the cafe-press one copy at a time model.
we are in a transition to a post-scarcity economy. the new washes away the old. that, among the old, that has memetic durability, survival value, will live on, at least here and there.
but that will take some effort from we, the living.
how many libertarians does it take to change a lighbulb?
none, the free market will take care of it.
that's a joke, because, you can just picture the libertarians sitting around in the dark.
the libertarians are running only 200 some candidates this year, about a 1/3 of which are indiana. It's like they've given up, I don't know why. I am no longer among them, my troubles would not reflect well on them.
I was going to talk about Mill, about the exchange jim leitzel and i had about whether john stuart or harriet taylor mill wrote on liberty, but i see i haven't gotten around to that.
note to self: put that new heinlein book on my wishlist.
note to self: have coffee, wake up, make a daily task list, get a job, get a life.

Saturday, August 14, 2004

Toe sucking,
and the Indiana battery law, problems with.
This is a rather important post, although it starts out friviolously.
This morning, a myspace friend wanted a duck, so naturally i went to heidi bond's site,
and did not find the duck-ordering link, but did find a discussion of dutch toe-sucking.
The subject under discussion here is the drafting and interpretation of legislation, and finding the intermediate level of specificity.
On the one hand, if legislation is too precise, there can be gaps - it seems the dutch claim they have no law against toe sucking, and the toe-sucking bandit , er, gets off.
On the other hand, legislation that is too general destricts liberty in ways that run up against lawrence v. texas issues. html://laws.findlaw.com/us/000/02-102.html
A rule that says "people may never touch each other" is too broad. Some kind of a rule against battery is desireable in order to protect people from each other.
The clerk* sets out the california and texas standards.

This post discusses the Indiana statute. This is not a hypothetical discussion. I'm working with an indianapolis lawyer. His client has been charged with battery, on some facts about horseplay on a playground. I have sent him a roughly drafted memo arguing that the Indiana statute is unconstitutionally vague, vagueness that must be cured through a limiting construction, or it runs into Lawrence-type problems.
The lawyer i'm working with is a very good criminal lawyer who doesn't do a lot of constitutional law, while i'm a not very good constitutional lawyer who hasn't done any criminal law, and we are having some issues in communication. I would welcome the blogosphere's thoughts on this.
gtbear at gmail dot com.
The indiana statute, 35-42, reads
1. Battery. I.C. 35-42-2-1. The crime of Battery is defined as knowingly or intentionally touching someone in a rude, insolent, or angry manner, and is a Class B misdemeanor.
If the battery results in bodily injury to another person, it is a Class A misdemeanor. If the battery involving bodily injury is committed by an adult against a child less than 14 years of age, it is a Class D felony.

Note that consent is not a defense, and key terms, rude or insolent or angry, are undefined.

(bodily injury is defined, in case law and statute, as no bodily injury at all, merely a fleeting sensation of pain or annoyance, but that issue has had rulings. The constitutional challenge would be a case of first impression.)

Is the statute constitutional, or not? Is there a narrowing construction that would save it, if so what? Bonus points for analysis under the indiana constitution e.g. due course of law.
Cordially, the arbitrary aardvark.

*It is clear that, if the allegations panned out, Schwarzenegger would be guilty of the tort of battery under California law. California defines battery as "an intentional and offensive touching of a person who has not consented to the touching." Conte v. Girard Orthopedic Surgeons Med. Group, Inc., 132 Cal. Rptr. 2d 855, 859 (Cal. Ct. App. 2003). ... "A person commits an assault if he 'intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet. h.). (quoting Tex. Pen. Code § 22.01(a)(3)). Curmudeonly Clerk.
update: when i first was admitted to the indiana bar, my certificates were signed by dwayne brown, a clerk of the courts who resigned in disgrace, over a toe-sucking incident.

more stupid laws saying you can't do what you want with your own stuff.
from the "ignorance" page, a useful resource, http://scican.net/~bwilliam/ignorance/
found while researching above post.
35-43-7-4 Impairment of identification
Sec. 4. A person who intentionally or knowingly conceals, alters, damages, or removes an identification number of a product with the intent to conceal the identity of the product and without the consent of the original manufacturer of the product commits impairment of identification, a Class A misdemeanor.As added by P.L.294-1989, SEC.3.
IC 35-43-7-5 Receiving unidentified property Sec. 5. A person who intentionally or knowingly receives or possesses a product on which the identification number of the product has been concealed, altered, damaged, or removed with the intent to conceal the identity of the product and without the consent of the original manufacturer of the product commits receiving unidentified property, a Class A misdemeanor.As added by P.L.294-1989, SEC.3.

Friday, August 13, 2004

(actually written saturday afternooon)
I'm trying to set up a thinkgeek franchise, so i can sell copies of will wheaton's "just a geek" and get a 7% comission. About $1.50 per sale if i did the math right, well that is a value between 1 and 2 dollars. It's not that i'll get rich doing this, the idea is, promote a friend's product...

...interupted by fraudulent sales call from a garrick grant of TAC tech awareness club pob 970455 orem utah 84097 1-800-278-3620. www.techclub.info "$3500 vlue only $289" after the recoding said the stuff was free. .. i'm on the indiana do not call list. he hung up while i was requesting copy of do not call policy.. i'll follow up on that one later. i explained to him that they can send it to me free in exchange for my not filing a complaint with AG's office. .. where was i..
that's why i discourage such calls, they make me lose my train of thought.

promote a friends product and receive micropayments in a win-win way.
what would be better would be if there were a downline, so i could get you guys involved too (both of you), so i need to look for other places that do that - the online electric bike store did, i could look into getting that going again, or a suitable alternative.
while i consider this sort of thing a hobby which i couldn't count on to pay the rent, it's a step up from wasting time online with no hope whatsoever of any return.
unfortunately the call woke my roommate so i'll have to reliquish the computer soon, so he can play his silly games. this would be good time for me to set up my new computer, and tonight i should go repossess the hub i'd loaned to a friend, so we can run both at once. of course, there's something to be said for being offline now and then - there's real world stuff that needs doing.

* call was at 3 pm saturday 8/14. i get a busy signal at the number. the page resolves, sort of.. my connection is slow today. i find no google listing for any of this info.

Business Consultants in Utah
268 West 400 South, Salt Lake City, UT 84101
Phone #:
(801) 575-8073
Toll Free #:
might be same outfit?
UT 13-26-11. Prohibited practices. (1) It is unlawful for any solicitor: (a) to solicit prospective purchasers on behalf of a telephone soliciting business that is not registered with the division or exempt from registration under this chapter; (b) to use a fictitious personal name in connection with a telephone solicitation; (c) to make or cause to be made any untrue material statement, or fail to disclose a material fact necessary to make any statement made not misleading, whether in connection with a telephone solicitation or a filing with the division; (d) to make or authorize the making of any misrepresentation about its compliance with this chapter to any prospective or actual purchaser; or (e) to fail to refund within 30 days any amount due a purchaser who exercises the right to cancel under Section 13-26-5. (2) It is unlawful for any telephone soliciting business: (a) to cause or permit any solicitor to violate any provision of this chapter;
Division of Consumer ProtectionHeber Wells Building, Second Floor160 East 300 SouthSM Box 146704 Salt Lake City, Utah 84114-6704
(800-721-7233) nah ut only.
got em! bbb.
BBB Reliability Report
Technology Awareness Club515 East Timpanogos Pkwy Orem, UT 84097
General Information
Original Business Start Date:
May 2004
Type of Entity:
Sole Proprietor
Mr Asadullah Khan, President
Customer Contact:
Mr Douglas Jackson, Controller
Phone Number:
(800) 278-3620
Fax Number:
(801) 802-8039
Membership Status:
Type-of-Business Classification:
Telemarketing Service(s)
Website Address:
Customer Experience
Complaints processed by the Bureau in its three-year reporting period have been resolved.
Additional Information
Additional Doing-Business-As Names:
Eplanet Communications Inc

Tech Club
Additional Addresses:
1207 North 800 East, Bldg W , Orem, UT 84097

P O Box 970455 , Orem, UT 84097
Additional Phone Numbers:

800.597.8597 sales@eplanetcom.com careers@eplanetcom.com

Discount magazine subscriptions (up to 92%) on 1000's of magazines
A free nokia phone, car charger, head set, and $100 cash back ($225 value)
3 day 2 night stay at over 250 Marriott courtyard/Fairfield inns ($200 Value)
Free satellite system with 4 receivers, free installation, 1-month service, and a DVD player*, and over $100 in free software (choose from Quicken, Norton etc.) ($450 value)
Free Gateway or brand name computer with 3 years Internet ($400 value)
Gift certificates worth over $1000
Discount Health Card
Free Digital Camera ($ 40 Value)
Free E-Investment book and 14 day membership to site ($70 Value)
Free Debt/Credit consultation ($60 Value)
Credit/Debit Card designed to help rebuild credit
Free Personal Credit Report and analysis and 30 day membership to Credit monitoring service ($40 value)
Free home security package* ($1200 Value)
Membership to exclusive travel club ($1000's in savings and discounts)
Access to web sites with constantly changing offers, specials and new releases.
yeah right.

biggest news i got a new computer for my birthday. by new i mean one that's 5 years old rather than 10 years old. i will go find the link to myspace, where i'm doing most of my blogging these days. but it's a different kind of blogging, one that focuses on my mood swings and personal details, while i've tried to make this a blog of ideas. some of the blogging i used to do here was an avoidance behavior, dealing with abstractions, rather than focus on the harsh realities of my personal life. i have some personal stuff to sort out, so the focus of my writing has shifted to that for now. i look forward to being able to get back to the abstract world of ideas at a later date, or some successful integration of the two. maybe i won't post that link, some of it is too personal and might tend to incriminate me. but if i know you and you want the link and didn't find it in a quick search, just ask. gtbear eachsign gmail dot com.

testing a photoblog entry.

Friday, August 06, 2004

  1. will writes, rightly,
    -","Re: Electoral Vote","",[]
    D(["mb","Thanks. It's rapidly becoming all-crescat-commentary all the time.\\W\",1]

Well, will, while I can't disagree, i can, in part, explain. The focus of where I find community on the internet varies over time. listservs, usenet, egroups>onelist>yahoo, php forums, blogger, and currently mostly myspace.com and stripcreator. I'd been heavily , effort-wise, in wil wheatons php forum, the soapbox,a nd moved from there into blogging at blogger.the blogs i was reading daily included 1. electionlawblog.org, which has its own mailing list and i tend to write about at my election law blog, ballots.blogspot.com, 2. volokh.com, 3, crescat, and then a handful of blogs i'd check in on now and then, most of which had their own comments section. so my posts here have often been about volokh or crescat. i don't get back here much lately. i share one web connection between two people, two net addicts. Most of my limited energy goes into myspace, which combines some of the best features of blogger and www.hotornot.com, while avoiding its drawbacks.

I even did an aol chat the other day - there's a major time waster. Although it was big fun. i think i have relearned the <> <- no longer certain what was in the brackets, i think i meant the href and img tags. see next entry.

Thursday, August 05, 2004

on judical tyranny, at alas a blog.
Posted by arbitraryaardvark
Suppose in 20 years they find a compelling reason to limit the freedom of the press to not criticize sitting representative during an election year. What would the recourse be? Would we just have to live with it
I just lost such a case in the 7th circuit. http://majors.blogspot.com. McConnell v. FEC was such a case, in limited respects. If you write "vote against smith" in Indiana, you can go to jail. In my case, I may just give up, I may find ways to continue to litigate in other cases raising the issue, I may go back to the legislature to ask that the statute be repealed, I will probably refrain from global thermonuclear war. The system as designed had numerous checks and balances - jury nullication, dual state and federal bills of rights, government officals sworn to uphold the constitution, citizen militias sworn to protect the constitutions from domestic enemies, a semi-free press to report and debate, encrypted mail, town meetings, and so on. Too often,we have continued to vote for crooks after they betray their oaths. Too often we have failed to even read the state bills of rights which are our heritage of liberty. Too often, we have waived our rights, our right to remain silent, our right to get loud, our right to a jury trial, our right to a free and anonymous press, our right to bear arms, our right to be free of compulsory education and involuntary servitude, our right to shout theatre in a crowded fire. Our creator, the goddess, gave us these rights, and we threw them away. I am the mad fool who shouts these things, john young does it better.

thoughts on forfeiture.
there's a crescat post about some vice squad musing about asset forfeiture,what has encourged me to brush up on the topic slightly. i m a fan of FEAR, www.fear.org, an ngo that works on this issue. I haven't looked closely at it since Austin, eleven years ago.
In a 1996 case from Michigan, Bennis, Justice Thomas, concurring, makes the point that due process under the 14th A. doesn't mean whatever Justice Thomas feels this week; he looks to history of how english law treated such cases. Under the tudors, the monarch was weak, like a weak-mayor-strong-city-council-city manager form of government. The tudor monarchy was like the articles of confederation; the central government was at the mercy of whatever financial support it could scrape up, so it governed a delicate coalition. My source for all this is Churchill; if Churchhill is wrong, I'm wrong. The Stuart King, King James, had a more modern view; the state is everything, the rest of us exist only to serve the state to the best of our abilities. The leviathon approach of Hobbes. There are limits, and Cromwell reminded Charles II of those limits, by cutting off his head. Locke and Hume suggested a more restrained monarchy,a nd the prime minister and parliament took on a greater role after the glorious revolution, the restoration, all that. I received a doctorate in law while knowing nothing about the history of the common law; it wasn't on the bar exam. Justice Thomas's opinions are part of what got me to look at it a little deeper, and I still know very little.
Bush is like James, an absolutist. Clinton, LBJ, Nixon, there were imperial presidencies,
echoing the debauchery and decadence of imperial Rome. The Court, like a council of elders, is one of the few checks and balances on Bush's tyranny. Not so much Bush personally as the army of clerks who run the show.
I forgot, lately, I cannot write simple clear statements; everything becomes a rant. I've having my meds adjusted shortly.
My point is Thomas isn't likely to be persuaded by 14th A arguments unless they are well-grounded in history. In Lawrence, he was explicit: It's a bad a law, evil, but that isn't the same as a 14th A violation.
I'm leading up to a point here, there is some groundwork to do to get to it.
The Michigan case was about a woman who lost her car to the state because her husband used it to be naughty. I do not have a good grasp of the takings analysis in that case, except it seems to say, well we've doing it this way so long, why stop now?
Missing in the Mich. case is any 8th A claim, which prevailed in Austin and Bajakajian .
The issue isn't, is taking somebody's car unconstitutionally wrong. It's finding the right clause to point to. The institute for justice has been premised on the idea that the right clause is privileges and immunities under the 14th, and they have been building consensus toward that view, but have a ways to go. Recently, they've gone in an exciting new direction - looking to state constitutions as a source of rights. I couldn't agree more.
I suppose I should put my 1994 thesis, state constitutional protection of democratic pluralism, online. The version I have is missing the footnotes, after some computer mishaps, but it better than nothing.
State constitutions often protect liberty and property in more explicit and concrete terms than mere "due process" or p&i. Often, but not always, state courts just ignore the text, as federal courts often ignore the 2nd Amendment. But the text, when combined with the policy preferences of state judges not too different than Thomas, may be enough.
Michigan's supreme court* has found such a principle - would it have worked for the woman who lost her car? I'm not sure, of either the facts or the law. But that's the kind of work for groups like FEAR and IJ to be doing. * Hathcock, will travel: http://volokh.com/archives/archive_2004_08_00.shtml#1091688790.
Now, on to a further point.
The eighth A's excessive fines clause comes from the English bill of Rights, 1689 I think, part of the deal to restore the monarch as a limited entity, ala Locke rather than Hobbes.
Under Locke, the government can't just take your car when they feel like it.
(the government has taken many, many, of my cars, so when I was pulled over last night I drove to a private parking lot before stopping for the cop, so my car was not towed; I got it home safely.)
The Bill of Rights in turn was based in part of the magna carta (not to be confused with the manga carta.) I think there is an argument to be made that the magna carta says the government can't fine you without a trial by jury, and that that principle was incorporated into the Bill of Rights of 1689, and that that principle was incorporated into the excessive fines clause of the eight amendment, and that therefore there is an eighth amendment right to a jury trial. A fine is excessive when a jury says so - the proportionality of punishment is a jury question.
The place to first test out this somewhat far-fetched idea might be in state courts under state excessive fines causes, in cases with good facts, a friendly forum, deep pockets to litigate it. It's beyond my abilities - I take only the easy cases, and lose then half the time. This would be a hard case. or a fun law review article. Ok, enough rant for a day.

This page is powered by Blogger. Isn't yours?