Seriously, this is my new favorite funny thing. It keeps making me laugh.
And, I mean, she got me. Lawyers, we ARE so obnoxious. You know me! SUCH A DOUCHEBAG LAWYER I AM.
Pro tip: If you are going to use a legal term (that is not just law school stuff! It also exists in the real world! In the wilds of the courtroom!), it helps if you have gone to law school, so you don't use it wrong. A rebuttable presumption cannot be used in criminal law, because that would be unconstitutional. Just sayin'.
LOLOL, but also: D:
ReplyDeleteI continue to think that your points are good points. AND ALSO that you are not a douchebag.
I have gone to law school, albeit not in this country. I did, however, practice for several years in tis country, albeit not criminal law. Which is how I know to be humble about "knowing" legal stuff. The "rebuttable presumption" discussion is one that is, it's true, academic and theoretical, which is why I said in that post, "not to get into other law school stuff," because you would have to get into these other issues. But hey! you're clearly most interested in being sarcastic here, which I suppose you've accomplished. Still, your inability to think flexibly about legal concepts will not bode well for future practice, I fear.
ReplyDeleteMichelle, I thought being humble meant admitting when you have been wrong?
ReplyDeleteAlthough you're right! If I were more flexible about constitutional law, I could TOTALLY get hired by the President's Office of Legal Counsel right now! They are undoubtedly looking for people willing to be super flexible about constitutional rights.
Also, I am actually, thus far, a pretty creative legal thinker - and I have learned this after doing an awful lot of human rights litigation strategy. I'm just kinda a stickler over the rights of the defendant, to keep the state machine from running people over. Because, you know, due process and civil rights - sorta important. But don't you worry your dear head about me - I think I'll be just fine.
I will never cease to be amazed by people who pick arguments with me on the internets about things that have been clearly bothering them, but which I have not in fact argued at all. But I suppose everyone needs to get those arguments off their chest.
ReplyDeleteI read your post, Michelle - and hey, you went to law school! It's funny, of course, how much I agree with you about law school. And equally funny to me what kind of law student you think I must be, given that I highlighted your post specifically because people who know me off-line would think it was funny. (Especially because I actually run around calling most lawyers "assholes"). I know all too well that sort of law person you have painted me to be. But, you know, if you want to assume who I am after a snarky blog post, go right ahead, there are enough assholes in law that it makes sense you think you've got me pegged. Maybe I would think that about you if I were in the practice of passing judgment based on blog posts. Instead, I will continue to think that if we ever met in real life we'd have a complainy-laughy conversation for hours over the law school thing.
It still holds that rebuttable presumption is a tort concept - it's not used in anyone's criminal law. That would be a due process violation under international law standards. So, yes, in the U.S. it is unconstitutional, but nowhere else would it be legal, either.
Have a wonderful holiday, Michelle. I mean that sincerely.
Hi. I feel like a bit of an interloper since I haven't read you for a while, Gayle, and I confess I found this through a link from Michelle (whom I've very recently started reading). But I have read you in the past and very much liked and admired what I read, so I hope that gives me credentials at least a bit better than a troll's for the purpose of this conversation. :)
ReplyDeleteThat first post of Michelle's you linked to — well, when I first saw it I was a little taken aback, because I'm a lawyer too, and yes, it does get tiring that people think we're the worst thing you could possibly dirty your shoes with. But then I thought, on the other hand, 'As current and / or future lawyers' does sound like quite a pompous way to start a sentence. Which made me laugh.
I hadn't read your and Silvana's post here at this point, I should say. I've only just read it now. And, for what my opinion's worth, I'd say that starting that particular piece with the information that you're feminists and lawyers and rape-survivors seems entirely fair enough. So if I'd known the context, I might not have laughed. But there we are.
The 'rebuttable presumption' thing, though? That completely baffled me when I read this post. I'm not a US lawyer, you see, and a quick bit of googling makes me think this must be a geographically specialized use of the term. 'Cause in England & Wales we use rebuttable presumptions quite a bit. In fact I'd always rather thought the presumption of innocence was a classic example of a rebuttable presumption, and it's one that we find very handy. We also occasionally use them in the way that (as far as I can tell from my brief web-rummage) causes constitutional problems in the US. For example since May 2004 we've had a rebuttable presumption of non-consent in rape cases where the complainant was unconscious, subject to violence or the threat of violence, &c. Which may very well be the sort of situation Michelle had in mind.
Now, maybe it's just because I don't live in the US and I frankly have no idea where Michelle lives, but I didn't read her post (the second one you link to) as being about US law specifically. I read it as being about criminal in general, in fairly abstract terms. The concepts she was discussing — the presumption of innocence, the prosecution of criminal charges by the state, and all that — are, I think, common to quite a few jurisdictions. If I'd been asked, I would have thought it quite possible that she was referring to things that are specific to Swedish criminal law — that would make sense, in the context. Conceivably even English law, given the jurisdiction where extradition is being fought. It didn't, at any rate, cross my mind that she was talking specifically about US law. Because how would that be relevant?
You may well know things about Michelle that I don't, including things that would make it entirely sensible to assume that her post was about the US. And maybe it was just my non-American viewpoint making me think otherwise. An alternative is that your US viewpoint has made you misinterpret what she was talking about. In which case, whatever the rights and wrongs of the small series of half-humorous swipes you've been taking at each other, this particular one might have been somewhat unfair?
(Sorry, didn't see your most recent comment until after I pressed the button on mine. But, er... we honestly do use rebuttable presumptions in England & Wales. That may or may not be objectionable, but I haven't heard of anyone suggesting it's actually contrary to international law.)
ReplyDeleteHey Jamie, some countries do in fact use all kinds of standards that are not really in total conformity with evolving international law standards. Due process under international law is a new concept. International tribunals, from which we can see this evolving norm of due process, have never addressed rape except as a war crime, and that's a little different - I mean, there is not even a discussion of whether there could have been consent in those examples. There clearly was none. But for other crimes, there is the standard of proof for each element.
ReplyDeleteThe thing is, I can understand the urge to make consent a rebuttable presumption, given that we live in a rape culture. But I think that means we have to change the rape culture, not the due process protections of the accused. I know we want to have different standards just for rape, but I don't think we get to do that - that makes me really uncomfortable. And I am, as stated above, super wary of whittling away any civil rights that defendants get. The entire historical context makes me super nervous, too, given that lots of black men were accused of raping white women in order to imprison them, or lynch them.
Michelle seemed to be suggesting in general we should use a rebuttable presumption in rape criminal cases - I actually didn't think she was referring to Assange at all specifically. And, well, we can't do that in the U.S. I may have made a mistake in reading her as calling for a general "non-consent as rebuttable presumption," but also, again, I only posted a snarky response to her post because I thought people who know me would find it funny. Not because I was getting into a giant fuck-off legal debate.
Anyway, if she was just putting her thoughts out there as a theoretical exercise, and wasn't actually thinking about them actually applied anywhere, then guilty-as-charged for assuming she was thinking she was calling for some general implementation. Anyway, at this point she's assuming she knows what kind of person I am, which, sure, you know, ok. There are a lot of assholes in law. I can understand that. But I don't really care about arguing this. It is Christmas Eve, and I am doing research about pushing forward an international norm that would prohibit solitary confinement as torture. So, you know, I don't really care to argue this anymore. But I really appreciate how measured and thoughtful your response was, so thank you (please don't read that as snarky).
Cool, thanks for the food for thought. Happy Christmas!
ReplyDeleteThank you, Jamie! Merry Christmas to you as well!
ReplyDelete