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As a lawyer, I refuse to take divorce, child custody, and other domestic and family law cases. There are a couple of reasons why.

First, I'm not enough of a hypocrite to make the arguments in court. "He drinks too much!" "She smokes pot!" "He had an affair!" "She had one first!" "He's a slob!" "She speeds!" These are the arguments I'd be called on to make, to show why he or she should get custody or a larger share of the marital property. There's an old rule of thumb that says you shouldn't present an argument in court if you can't make it with a straight face. I can't do that here.

Second, there's no law in it. There are, in fact, statutes on the books, carefully gender neutralized, that purport to govern the proceedings. But the statutes typically end by leaving everything to the judge's discretion, or in custody matters, the "best interest of the child". This is not a legal standard; it is in fact the absence of a legal standard.

There are, however, rules in Oliver Wendell Holmes's sense: the law is what a seasoned practitioner reckons a judge will do. ("The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.") These rules are hardly gender neutral. They contain, for instance, a strong presumption that she gets custody. Her weapons to collect child support are far more effective and terrible than his to enforce visitation. The real rules vary from court to court; getting your case in front of the right judge is often half the battle.

So the lawyer must cast his argument in terms of the carefully neutral text of the lawbooks, but always with an eye out for the real rules, which cannot be stated or acknowledged openly. They would be naked violations of equal protection if they were so stated. I don't want to deal with that. Again, I'm not enough of a hypocrite.

I have a tin ear for human emotion much of the time. Now, mere felons, mere murderers are one thing; but a person who has contracted a marriage or begotten or given birth to a child has done something so unwise that I find them hard to relate to. These are simply some of the worst things you can do to yourself from a legal perspective. You'd be better off carefully filling in your address and SSN on the first page of your tax return, then attaching your screed saying that you object to the income tax because the fringe on the flag is the wrong color, and submitting it to the IRS in person, naked except for those guns you're carrying. Marriage and parenthood are simply rotten deals if you have a penis. And you aren't going to change that, either; the only good option is none of the above.
ihcoyc: (Default)
Kenneth Lay is dead. He was 64, and apparently collapsed of a heart attack.

Something about this that makes you go "Hmmmmm. . . ." He was due to be sentenced in October; an appeal from his conviction was apparently pending at the time his death. On his blog, law professor Peter J. Henning cites Federal precedents that say that "(i)t is well established in this circuit that the death of a criminal defendant pending an appeal of his or her case abates, ab initio, the entire criminal proceeding." United States v. Asset, 990 F.2d 208 (5th Cir. 1993). In a recent Fifth Circuit decision, United States v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004), the court explained that "the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted."

I don't think it's beyond the realms of possibility that Lay was persuaded by legal advice to do the honourable thing for a fellow in his situation. I also don't think it's beyond the realms of possibility that his death may be a hoax. No word as far as I know as to whether an autopsy will be performed, or what measures will be taken to secure the identity of the corpse. It would appear that, at least under the 5th Circuit's rules, his conviction is now a nullity; meaning that it no longer has any necessary effect in the various civil cases now pending, either. The Fifth Circuit, headquartered in New Orleans, covers Texas, Louisiana, and Mississippi.


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November 2018

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