March 02, 2005

The Exclusionary Rule; Ward Churchill

A reader asked me

Prof Braider is a professor of French literature at U of C, and advances the argument that since the investigation into Ward Churchill was based upon his controversial comments, any evidence of lies, plagerism, academic fraud, etc cannot be used against him. Freedom of speech will void any non speech related issues that happen to turn up in the process.

Is there legal precedent for this, or is this just academic posturing?

That is false, I think, as a legal matter, and even if it were not, that would not matter in the end. This is by analogy with the exclusionary rule in criminal procedure, a peculiar rule that says that if the police search my house for drugs without a proper warrant, and find ten dead bodies rotting in my basement, they cannot act on that information to go after me for murder. I'll come back to the desirability of that rule later, but for the moment note that if at the same time the neighbors are complaining that my house stinks of decaying flesh and other evidence points to my criminality the police can conduct a second search based on that, and use the evidence so obtained. In the Ward Churchill case, people have previously been complaining that he was an academic fraud, quite independently of the current controversy. It is legitimate for his Chancellor to start an investigation based on that-- or not to start one, as the Chancellor pleases. Moreover, once an investigation starts, it certainly is not limited to misconduct of the kind that started it. Thus, even if the current 30-day investigation would be ruled improper, the Chancellor could just start a new one, to achieve the same result.

Now back to the exclusionary rule. This might be worthy my writing a scholarly article about.

There are two reasons for the exclusionary rule. One is the purely formalist idea that this is analogous to other parts of the law, where a person cannot benefit by his own bad behavior. Here, the police should not benefit from an illegal search.

The second reason is that we want to deter the police from making illegal searches. This is a good motivation, since we indeed want to avoid illegal searches. But why do we want to avoid them? Because we want to avoid searches that hurt innocent people. There is nothing intrinsically bad about the police not getting the right paperwork done before they conduct a search; the reason we require the paperwork is that unless the police can convice a judge that they have a good reason, the search probably isn't justified because it has too high a chance of hurting an innocent person and not coming up with evidence of a crime. The reason for the paperwork is not to hinder the capture of criminals, but to prevent police from making unjustified searches. But the exclusionary rule's cost of a few criminals who get away is worth the benefit of deterring a lot of unjustified searches.

As solution to the problem of unjustified searches, of course, the exclusionary rule does have a glaring problem: it does not punish anyone for making a truly unjustified search. If the police ransack my apartment and find that I haven't committed a crime, the exclusionary rule just tells them they can't use the evidence they haven't found to prosecute me. The exclusionary rule only helps punish the police when their search was justified, because there did exist evidence of a crime.

TA more straightforward solution to the problem of unjustified searches is simply to punish police who do them. If the police want to risk cutting corners in making a search, they can, but if the search doesn't turn up anything, they are in deep personal trouble. Since if the search *does* turn up something, they get only a mild personal reward-- the career credit of having turned up some useful evidence-- the incentives would still be for the police to be overly cautious. Remember, most of the benefit from catching a criminal goes to the public; the policeman gets paid the same salary whether he catches criminals or not.

I'll mention a couple of other arguments about the exclusionary rule.

First, it gives a big advantage to expensive lawyering relative to pure justice. The rule is all about complying with legal niceties. Thus, it puts a premium on expensive legal talent, and especially benefits rich criminals such as drug dealers or white collar criminals relative to the ordinary citizen.

Second, it makes it easier for corrupt police to protect criminal allies. If the police feel they have to investigate a case because of public pressure, but they don't want to actually convict the criminal, they can foul up the search procedure and blame the courts for the criminal staying free.

I wonder, too, if anyone's thought about the following hypothetical. Smith is on death row, having been convicted of murder. The police make an illegal search of Jones's car, and find a signed confession that says Jones did the murder, not Smith. Should Jones remain free and Smith die? That is the logic of the exclusionary rule.

If you like, add to the above hypothetical that the police also find a plan by Jones to murder a third person, Roe, the following week. Should the police be allowed to warn Roe that he is in danger?

The exclusionary rule has long been criticized, so probably most of these criticisms are well known. I know I was surprised when I wrote an article on the supposed "right against self-incrimination" at how little attempt there was in the law journals to justify it, and how many criticisms of its logic. The law of criminal procedure is a mess.

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February 16, 2005

Breach of Contract Against Employees Who Like Their Work

Suppose Smith agrees to work for BigTV at a salary of $100,000 per year. The exposure is worth $300,000 to Smith, and Smith's talent is worth $500,000 to the company, so the deal splits the value equally between them. But then BigTV gets angry at Smith, whose talent value drops to 0, and takes him off the air while continuing to pay him. Should Smith win a lawsuit against BigTV? Via Drudge, the New York Observer we find a case that is a little like this, in connection with Rathergate: . . .

. . .

Mr. Howard, those sources said, has hired a lawyer to develop a breach-of- contract suit against the network. Ms. Murphy and Ms. West have likewise hired litigators, according to associates of theirs, and all three remain CBS employees and collect weekly salaries from the company that asked them to tender their resignations.

None would agree to participate in this article.

Legally, CBS and the ousted staffers are in an unusual stalemate: The network cannot be sued for breach of contract unless it actually fires them. Theoretically, the network could refuse to offer an apology or correct statements and simply drag its feet, continuing to write paychecks to the trio until their contracts expire. (Neither side would discuss how long the contracts are scheduled to last.)

The news report is probably correct that the common law would not award Smith the $300,000 in my hypothetical. Nonetheless, it is actually true that Smith has not gotten the benefit he expected from the contract. On the other hand, neither has BigTV, though not from any fault of Smith's. I'd have to think about this to come up with an answer.

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December 27, 2004

Sharing Genes with Brothers and Strangers


Suppose a person has X genes. He will share, on average X/2 of those with his
brother. He will share exactly X/2 with his father. There is a 50% chance he
will share less than X/2 with his brother. There is a tiny chance, even, that he
shares 0 genes with his brother, because his brother got the complementary X/2
from their father and the complementary X/2 from their mother.

How many genes will our person share with the average person in the population?
Not zero, but maybe a fraction of 1. It depends on how big X is, and how many
people are in the population. What is interesting is the probability that
there is someone out there in the population who shares X/2 genes with our
person. And what is the probability there is someone with all X genes? It is not
zero.

If the population is big enough, N', there is over a 50% chance that someone
exists with X/2 genes in common with him. The size of N' depends on X. We will
assume an even distribution of genes-- no matching of male and female by genes.

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October 05, 2004

Divorce in Chile

"Divorce, Chilean Style: Now, It Will Be Legal But Not Exactly Easy" says the Wall Street Journal of October 5, 2004. Here are details:...


...On Nov. 17, Chile's first divorce law, passed by Congress and signed by the president earlier this year, goes into effect. It promises relief for Dr. Saavedra and an estimated 900,000 Chileans -- -- who are trapped in marriages that exist in name only. The coming of Chile's D-Day -- which will leave Malta and the Philippines as the most prominent countries prohibiting divorce -- will be a leap into the unknown for this Catholic nation.

To keep his campaign pledge to get a divorce bill through Congress, Socialist President Ricardo Lagos had to compromise with conservatives. Under the law, the product of a nine-year parliamentary debate, judges are to try to "preserve and recompose" marriages, if necessary, by recommending court-sponsored mediation.

Thus, it seems unilateral no-fault divorce is being allowed. That's the worst part of divorce-- that one spouse can dump the other without good reason and without penalty.


Despite their misgivings, in Chile, where women's rights have lagged because of Catholicism, geographical isolation and life under a repressive military dictatorship in the 1970s and 1980s, when the feminist movement was flowering elsewhere.

It seems clear that no-fault divorce hurts women, not men. Men can get remarried more easily, are more unfaithful, and have more earning power. and I'm surprised the belief that it is good for women still persists. I suppose feminists like divorce because it is anti-marriage and anti-family, even though it makes women poor and unhappy.


According to Carlos Briceņo, a Justice Ministry official, there appears to be an 11th-hour surge in applications for annulments, a widely winked at form of fraud that Chileans with financial means have traditionally used to get around the divorce prohibition. To obtain such an annulment, a couple goes to court with witnesses willing to offer perjured testimony that the address on the marriage form was wrong. Dr. Saavedra, the gynecologist, couldn't get an annulment because it takes the collusion of both husband and wife to annul , and his wife wouldn't go along with it.

We see from this that in effect, divorce has long been legal-- but only if both spouses agree. Thus, the big change now is to override the desire of one spouse to block divorce. If the facts in this article are correct, this suggests that Chile may have as high a marital breakdown rate as the US, with the 10% figure mentioned above just being the breakdowns in which only one spouse wants a divorce.

A little more than half of all Chilean children are born out of wedlock , many to couples who would have liked to get married but couldn't because one or both parents were still bound to a previous mate, according to specialists on the family.

I'm skeptical that lack of divorce is a major reason, given that annulments are easy and that most births would be to first marriages anyway. But this is a shocking figure anyway. Or has it always been that way in Chile, because marriages are informal?

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August 23, 2004

Public Posting of Grades; Buckley Act, Cambridge, Accountants

I've long thought that it's foolish to keep university grades secret with the hypersecurity of the Buckley Act. Why not post student names and grades, so the students can find them out easily? (especially before email made this less important) Why should a slacker be entitled to keep his D a secret? Why shouldn't the top student get public recognition? Isn't it good for students and professors to be able to find out that a particular professor gives all A's?

England is more sensible, as this BBC report explains:

For 300 years students at Cambridge University have learned their exam results from public notice boards.

...

Until recently, the Institute of Chartered Accountants (ICA) published all interim and final results in a Saturday edition of the Times newspaper.

This led to many anxious students cutting short their Friday evening fun to seek out an early edition of the paper at a late-opening corner shop. Saturday's hangover was either tinged with relief or despair.

The institute still publishes its results in the Times, but now also offers text message and e-mail.

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