Monday, November 21, 2016

Immigration, deportation, divestment. Put back the Writs. Legalism overwhelms equity and regrets It.

Puttin' Back the Writs.  
Writs of Equity: When the unlawful act is identified, restore fairness to the consequence.
A behavioral penalty; not just a fine, easily enough paid.

Equity Remedies; Equity Writs.
Fairness; Accountability, both sides.

Update to 2016. Equity issues looming large. Prevention, make the injured party whole again, not just focus on punishment for a perpetrator. Must a president-elect divest himself of his business interests, give up all hope of future benefit from them (no arrangement for buy-back).  If he acts as Commander in Chief for the nation as to a matter where he has hotels, he will not have divided loyalties. Prevention. How to define failure to divest as a legal violation, how to examine the emoluments clause and apply a fair consequence where mere money damages will not prevent recurrence.

Can someone get a declaratory judgment for a looming imminently impeachable offense? Is conflict of interest an impeachable offense?

Other application for equitable remedies, equitable balance.  Must people be deported where a government has condoned their entry without documentation, and for decades. What now of some 11,000,000, where the accuser failed to act in a reasonable time. Equity. Who slept on what rights? What was condoned. Who is estopped from changing course radically now. What now. See other legal and equitable terms at http://www.obstacledelusions.com/Definitions.htm

A. How to approach a need for prevention, where matters are likely to recur but evade review? Where a fine or money damages can be paid and not stop the issue.

Deterrence in come case must be ongoing, not mooted out each specific instance.

 Look closely at equity jurisprudence, the opportunities that equity provides, where there is a breaking of a law, a violation of constitution. Money alone will not deter for the very rich. Just pay the price.  Define the duty to divest as a necessary preventive; a way of ensuring governments do not use emoluments to get an in, by adding to business interests, offering business incentives.  Divest now is the only way to prevent that.  Equity may act even though in this era legalism is prominent, a platform for partisanship.

B.  Proposal:  Define omission to divest fully (cash it out, now, if you want to be president); and prepare the papers for immediate impeachment on constitutional grounds if that is not done by the swearing-inn.  In addition, where a president elect holds his assets without divestment by the time of the Electoral College Ball, the electors shall be free to vote their consciences, free of direction and consequence from party or State. 


C.  How we got here, ignoring equity as though it is not part of our system of justice.

1937 was a fateful year for American jurisprudence: In 1937, law and equity were combined in one proceeding, in the Federal Rules of Civil Procedure. It seemed to be a good thing. Other countries had already done so, but our lax effort formally to incorporate fairness into legal matters, even at ony the penalty phase.  Without a named place for equity in the courts, going to automatic sentencing instead too much, we give enforcement extremists firmer ground for judging others and taking punishment into their own hands. Did we forget that equity is as much our heritage as is law.

1937 was a buffet of extremes. In 1937, the nation also began levying taxes on people's earned waged, for social security; North Carolina established the first state contraceptive clinic; the Pope had an encyclical read in churches, including in Germany, berating Nazi "paganism and racism," then apparently sat out the rest of the war, is that so?; Italy banned marriages between Italians and Ethiopians; a year of great births, arts, feats, slaughters (Guernica; and Picasso's mural of it), the Appalachian Trail was dedicated, Buchenwald labor camp in Germany started operating, Dr. Seuss published his first book, "My Funny Valentine" was a hit, Los Angeles - site of the first drive-in  bank, Hitler stated his intentions to his advisors, see it all at Timelines of Historyhttp://timelines.ws/20thcent/1937.HTML 

D  Effectively incorporating an equitable remedy is not difficult. Take it in steps.

1) Law -- Identify a statute; and who, if anyone, violated it; then apply, to the consequence,

2) Equity -- What, in fairness and accountability, should happen next.

Decline of equity is a decline for jurisprudence, in effect says Roscoe Pound, a 19th Century jurist, whose views are laid out at Jacqueline M. Nolan Haley's paper echoing ideas of Cardozo at http://www.cojcr.org/vol6no1/CAC105.pdf/
  • Legalists ask, skip all this. Why not just impose a fine? Respond: punishment is not the focus. Addressing the problem, is.Law enforcements like punishment, incarceration, money damages, all not a fit for some behaviors, the kind of obligation that evades review, recurs easily once the fine is paid. 
    • The bringer of the action, however, has to act speedily. 
    • There is, in equity: laches, sleeping on your rights, undue delay before seeking a remedy, so that the other has relied to his detriment in the arrangement. See Equity Decides DNC Rules; Apply Laches.  Clean hands. The requirement that one who seeks fairness but also have done, must do, fairness. .
I.  Law. 

Quick look, before moving to the less familiar Equity.  Law cases gave the right to a jury, equity cases did not.  But constitutionally, people had the right to a jury - always subject to interpretation.  Most States now combine the concepts, with preservation in equity for sentencing to a degree, for example.  Some States retain equity courts, or "Chancery" - as Delaware, where corporate matters are considered "equitable."  For an overview, see http://supreme.justia.com/constitution/amendment-07/06-continuing-law-equity-distinction.html/


Equity jurisprudence. Puttin' Back The Writs

Fred Astaire sets the stage for WritsPuttin' On The Ritz from 1929, http://www.youtube.com/watch?v=j02k9t4rP50.














II.  EQUITY JURISPRUDENCE

Equity provides specific behavioral tools for accomplishing a specific goal, where an award of mere money damages will not make the injured person whole again.   Count the ways:

1.  The Injunction - You. Stop that.
 
2.  Declaratory Judgment. The Judicial Interpretation In Advance ("Declaratory Relief") - If you do this, it will be found ok or not ok.  A declaration in advance.

3.  Forfeiture - You give up what you have and do not get it back. You get none of it.  Generally this extreme is abhorred.

4.  Reinstating a Contract - You broke this part of it but it is not forfeit. Make the contract operative again

5. Trusts and Liens Imposed Involuntarily - You may continue to hold this, but only for the benefit of someone else

6.  Reforming a Contract - Change this or that

7. Rescinding a Contract - Cancel it out

8.  Damages - The value of something lost, not received, or altered. This is the usual compensation in legal matters now. Easy, fix a number, enforce it.

III. PUTTIN' BACK THE WRITS

Prerogative Writs - These are the ones in the news now, with habeas corpus and Guantanamo particularly.

Go back to find an overview at this summary legal procedure site, at  http://www.geocities.com/melanie_lawnotes/NotesonLegalHistoryOutline.txt.  Why is that now a redirect?? Yahoo? Get out of there.

In the old days: an action had to fit in one of the writs to get before the court.  Then equity found other matters that still did not fit, so the powers broadened. See ://www.lawteacher.net/Equity.php
  • Habeas Corpus - "You have the body" - the big one in the news today, about the Supreme Court granting rights of Habeas Corpus (the right to request a hearing on the reasons for a detention) to enemy combatants/ others and whoever else at Guantanamo. Since there have never been hearings, we have no idea whom the great governmental vacuum cleaner sucked up. Thus, the Great Writ, the Writ of Habeas Corpus, arises. See ://www.lectlaw.com/def/h001.htm; and http://www.aclu.org/safefree/detention/habeastimeline.html
  • Prohibition - "Stop that!" to keep a lower court from acting, or person, see ://www.bwlap.org/TAPs/writs.pdf
  • Mandamus - "We command" - to force a lower official to act. See ://www.lectlaw.com/def2/m079.htm
  • Certiorari - to make something more "certain"- permits appeals to a higher court. See ://usinfo.state.gov/journals/itdhr/0405/ijde/messitte.htm.How to pronounce it? Think sert-chor-ar-eye or sert-chor-ar-ee
  • Quo Warranto - by what authority does a lower official act. See ://www.enotes.com/wests-law-encyclopedia/quo-warranto
Applications to modern issues:

Immigration?  It is not enough to find a law broken by this person or that.  How did they come to need to get here, what did we do to encourage it, and with 10,000,000 "illegals" here, without documentation, how do we move forward without making 10,000,000 enemies.  Arizona, we need your input, but not your draconian system.  Law and deportation simply don't work -- need to expand the jurisprudence as has been done any time the system is overwhelmed with the problems.

IV. COMPARING LAW AND EQUITY JURISPRUDENCE

LAW SIDE. Legislatures write and pass laws. People obey the clear, unambiguous laws. Judges enforce the clear, unambiguous laws.

But what if something does not fall within a "law," or there is an ambiguity, a twist?

Law cannot do it all. It still takes interpretation. Whether the person has obeyed or not depends on how the judge interprets or construes the law - judges indeed and properly make new law by discussing and making further grounds for past laws that almost fit, but not quite.

Maybe an older law does not apply at all to this new situation. This is not judicial "activism" - it is a venerable part of the common law - how we regulate human behavior, what do you do when the shoe don't fit.

EQUITY SIDE:  This adds concepts of fairness to a sentencing, to a penalty.  On the criminal side, how to punish a perpetrator, to deter.  On the civil side, how to make an injured person whole again. Is there something in application of the LAW that does not fit - the injured party is not made whole yet, or the guilty one not appropriately punished in order for deterrence and other reasons to work out.

See the "Maxims" of Equity for the basic principles applied in equity. Fairness things, not just the letter of a law, but how the person behaved also. Taking advantage.

Equity - a Long Tradition of Protections


What powers does a judge have, and what rights does a defendant have in resolving issues rather than just money to right a wrong. See ://www.jtblaw.com/legal_remedies.asp.

People may want a piece of property back, or a possession back, or to get someone off their land, recover the value of something, stop people from this, force people to do that, the human community. 

Current events:  Immigration, deportation, unduly onerous prison sentences

Rights of habeas corpus:  Know what it means. That is only the right to ask for a hearing. For Guantanamo, an inmate can find out what the government has against them. Is it justified?  It does not mean they are released. Inmates just get the right to make their case that they were in the wrong place at the wrong time, and as to some that may be true. A legal strainer.

Like your own child caught in a riot abroad, and arrested. You would want the right to challenge why he or she is there at all. Basic.

When money damages won't do it, look to equity with equal purpose and stature.  See ://basic Civil Procedure text.  Was its slow death over the years fair?  Or was it mechanical. Refocus on equity jurisprudence.  Balance the punitive focus. Sometimes the just do die. The fact of a death is not a judgment on merit.

Death by Firing Squad, Jovan Simonon Plamenac, Memorial, Cetinje, Montenegro





















Jovan Simonov Plamenac, see .Montenegro Road Ways, Memorial, Jovan Simonov Plamenac, Cetinje, Montenegro.

The criteria are the circumstances of the case, with acknowledgmenet that individual attention may have to be limited. As to a president-elect, ask if the penalty of having to divest is fairly balanced with the need of a nation to have objective, non-personally-invested-financially iinterests at the helm.
That shocks the conscience of all of us. Someone not taking a needed step, in order to save his hotel?  Give us a break. Start the impeachment now, nerds, so it can be filed in the first day.


Thursday, November 3, 2016

Fruit of the poisonous tree. What happened in the gap? FBI Comey. Report on the rogues.

FBI grapples with Fruit of the Poisonous Tree. Rogues and taint in election year. 

This is the Bureau that Jim got.
See update 11/4/2016 *   

This is a computer
That belongs to a Husband
That the FBI was investigating
That was in the Bureau that Jim got.

This is the rat,
That saw a Wife's file header
That sat in the directory of the Husband's computer
That then steamed in the Bureau that Jim got.

This is the conspirator,
That agreed with the rat,
That they'd keep the Wife's file headers secret,
That then snooped inside, click click, did they?
That then figured how to use what they found
That just turn an election -- oh, blessed data
That agents turned partisan know well how to use,
That now boiled -- or not -- in the Bureau that Jim got.

This is heritage of manipulating a scene
That deluded grandees in field offices admire,
That might unearth matters for their political use
That might smear an election, favoring their guy, like an op.
That familiar tack, even if tacky, in the Bureau that Jim got.


This is the now Director, good guy, they say,
That knew of rogues in a field office
That touted visions of grandeur beyond their pay grade
That just itched to see certain shelved matters back in the in-bin.
That better suited their politics. A matter for correction.*

This is the Director. In or out of the loop?
That might have wanted a warrant (did he?) to poke in Wife's files
That failed to rein in his rogues from their leaky intentions.
That still warrantless boiled over plotting leaks in the Bureau that Jim got.

This is the panic of the Director caught asleep at the switch,
That still sought no warrant as to Wife, claimed nothing exigent (is traitorous leakage exigent?)
That finally wrote a carelessly worded letter to outsiders, sending election polls reeling.

This the exclusionary rule
That requires evidence to be legally got, 
That excludes warrantless use as  a)  Fruit of the Poisonous Tree. unless exceptions apply.
That exceptions include b)  exigent circumstances, good luck with that.
Et ceterot.
That compound the secret the conspirators brewed,
That lay in the directory of the Husband's computer,
That as to which the Director for three weeks knew naught,

Here, Mother Goose digresses, already out of cadence:

What is an illegal search, children.

What limits the clicks and dances of conspirators through the merry ballroom of the FBI. Did the Husband have authority to give over Wife's material in his computer? Was it jointly owned?  Does illegal search include the step of additional clicks on a directory clearly labeled for another. Is that the real world, to expect restraint in politics? Must the FBI be political?


Now, who will examine the computer boiling over in the hands of the FBI to see this angle:  Who clicked on what, and when. Are there conspirators, bad actors here, is that the norm, or is everyone squeeky clean? Do we really believe the rogues waited for a  warrant for 3 weeks?



This is the data 
That conspirators found (what was it!!)
As they skimmed through the trove
That still was kept secret
("Skip a warrant! We're In!")
That lay in the computer three weeks for the dance,
That sat in the house that Jim built.

This is exclusion the law provides
That now grabs the FBI's own ankles.
This is the hetman all tattered and torn,
That now must examine his own.
This is the cock that crowed in the morn,
That put the secret out there, now what?
 That alarms the nation.
That waked the nation.
That, until its own investigation is done, in open, taints all of us.

Who will bell the cat?
..............................................................
* See An Introduction to Political Crime by Jeffrey Ian Ross 2012, at pp.107ff;  and now, a request for an investigation here, see https://www.yahoo.com/news/house-dems-want-probe-of-fbi-leaks-about-clinton-203404620.html