Begging The Question

Friday, May 04, 2007

Priorities, people!
Last night in the Dallas/Ft. Worth area some pretty serious storms rolled through. Heavy thunderstorms, 80-90 mph tree toppling wind, hail, and high probability of tornadoes. As the Mrs. and I were watching the local news, the station announced that they were getting phone calls from concerned citizens worried about... wait for it... missing American Idol.

People were more concerned with seeing which non-songwriter/ non-musician/ non-composer/ non-choreographer got voted off a reality TV show than they were about knowing if they were about to be killed by a natural disaster.

Darwin is not working fast enough.

Tuesday, May 01, 2007

Some Law-Talkin'
A few law-related thoughts this week:

1. There's been a lot of chatter this week over the Supreme Court's decision in the car chase case, Scott v. Harris. Some links from my blogging betters: Marty Lederman and Lyle Denniston at SCOTUSBlog; Orin Kerr at the VC here, here, and here; a few more from Howard Bashman. You can go there for the details. Basically, the Court held that a police officer did not violate a fleeing suspect's constitutional rights when the officer bumped the suspect's car from behind during a chase, resulting in a wreck that left the driver paralyzed.

This case interests me mainly because of the discussion of qualified immunity. Justice Breyer in concurrence, and to a lesser degree Justice Ginsburg, broach the possibility of completely re-working the qualified immunity framework. Under current doctrine (what Breyer calls the "fixed order-of-battle rule"), courts first decide whether there's a constitutional violation and only then ask whether the constitutional rule was "clearly established" at the time. Justice Breyer suggests scrapping this scheme when it's easier to decide the clearly established issue.

I think this would be a bad idea. I talked a little about qualified immunity a few weeks ago when the Court argued the "Bong Hits 4 Jesus" case. Norm Pattis at C&F reports that Erwin Chemerinsky thinks the Court might use the "Bong Hits" case to take this step in QI doctrine. And it's easy to see why. As I discussed in my post, and went back and forth in the comments with Steve Minor of the SWVA Law Blog, QI cases can be hard when the constitutional issue is murky but the clearly established prong is simple.

And, the QI two-step is an exception to the Court's usual rule of avoiding constitutional issues unless it's absolutely necessary. But that rule is merely prudential; it isn't constitutionally-based like the Steel Co. rule against assuming jurisdiction. I'd be just fine with requiring courts in Fourth Amendment cases to make an explicit constitutional ruling before addressing the Leon good faith exception, but I'm definitely in the minority there. I could handle the Court skipping the con-law holding in QI cases if they agree to hear a lot more cases raising those issues.

The biggest benefit of the current QI approach is that it does give some guidance to lower courts. As Justice Scalia acknowledges in the majority opinion, "such a departure from practice is 'necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.'" Or maybe the Court just wants to give up establishing rights. Let's see how the "Bong Hits" case comes out.

2. Good post here at Abstract Appeal discussing a very interesting Florida court of appeals case involving duties owed to children before they're conceived. A doctor screwed something up during a birth, and it put the woman's future yet-to-be-conceived children at risk. Sure enough, her next kid is injured. The court says the doctor owes a duty of care to the unborn kid and can be sued for malpractice. (I'm boiling it down pretty crudely. It's actually a good discussion of duty to third party concepts and the "zone of danger.")

First, I'll be interested to see how the group of people who are both pro-tort reform and pro-life react to this case. (I'm kind of being snarky -- I figure they'll be fine letting the kid sue but will still cap the damages.) Second, I have to wonder if this case will one day be cited somewhere along the slippery slope in an argument over the rights of, and duties owed to, fetuses. I think the court is probably right here, given that (a) the doctor should have recognized the problem with the first birth, and (b) if the doctor had met his duty of care to the mother during the second birth, i.e., gotten a complete history, then (c) he probably would have acted differently during the second birth and the kid would not have been injured. And the court does a good job in limiting the scope of the opinion. But it just strikes me as the type of case that might be spun and stretched down the road somewhere.

3. There's a little buzz at from Prof. Volokh at his place and Will Baude at Crescat over the new Anthony Hopkins movie Fracture. They have all the spoilers if you want to check them out. (This post is only semi-spoily.) Basically, there's a legal issue that kind of twisty. It's probably right on Double Jeopardy law, but probably wrong on collateral estoppel law. As an aside, back in January, I discussed some similar issues in a post about trying O.J. Simpson for conspiracy to commit murder. I noted that such a case might be able to get around Double Jeopardy but would likely run into a collateral estoppel problem based on O.J's acquittal on murder charges. Obviously, it was a complete throwaway thought experiment regarding O.J., but it's nice to know I would have spotted the issue if I had seen Fracture.

4. Not strictly about law (yet), but I found this interesting and wanted to pass it along: A new academic study says that white referees call more fouls against black players than against white players in NBA games. The difference was up to 4.5%. (To a lesser degree, black officials call more fouls against white players.) I haven't looked closely at this yet. But I have a feeling we'll be hearing more about it. Kudos to the reporter who gets a quote on the matter from Don Imus.

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