a non-criminal post by special request: Living Wills and Living Trusts

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 “Living,” in its adjectival sense, is one of those descriptors which is really only useful as a contrast to its opposite.  Saying that Tobias Wolff is “A Great Living Author” is just a euphemism to point out that Mr. Wolff is not dead, unlike so many other great authors.  Similarly, Living Wills and Living Trusts are unlike most regular wills and trusts because they become effective before the person who makes them is dead.

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putting the “strict” back in “strict liability”

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Thank you Parking Enforcement Officer P515 for the ticket you left on my car last Saturday, in front of my house, on the morning of the day that my registration expired!  I can picture it now: a quiet weekend morning in a tree-lined neighborhood, the early fall air is still and cool, birds are chirping, the sun is just cresting the mountains to the east and warming your face, Parking Enforcement Officer P515, as you walk from car to car dealing out tickets to the slightly lazy registered-car-owners of Salt Lake City!  Your proud efforts give me occasion to wax lawyerly about Strict Liability, and for that I thank you!  Carry on!

Anyway, my ticket says that the owner and driver of the car is “strictly liable” for any parking infractions.  In that context, strict liability can probably be translated as “don’t try Continue reading →

a salute to C.C. Highsmith

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esquireOk, so that picture on the About page is not actually your humble blogger, but one C.C. Highsmith, an attorney practicing in Texas around the turn of the century.

Reading legal history from his time period is endlessly entertaining to me, mostly because I love that mix of old-world erudition and ostentatious sophistication with which they debated topics that seem, now, flat-out ridiculous.

Mr. Highsmith himself was relatively forward thinking, it turns out.  As a legislator, he first made sure that druggists pay a fine for dispensing cocaine without a prescription.  He then campaigned, apparently for many years, to criminalize the stealing of dogs–a reasonable Continue reading →

it’s all ex post facto

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On the About page, I mentioned the idea that, for most people, the law is determined only in retrospect.  That is, we don’t often decide how to act based on what we know the law is, but we act first and find out later if we screwed up.   I’m not the first person to point out the issue.  William H. Simon spends a few pages on it, in one of the interesting bits of The Practice of Justice: A Theory of Lawyer’s Ethics:

“Explicitly retroactive laws are sometimes unconstitutional and usually suspect.  But for most people most law is implicitly retroactive.”  He goes on (quoting John Chapman Gray), “When a man marries, enters into a partnership, or buys a piece of land, or engages in any other transaction, he has only the vaguest possible idea of the law governing the Continue reading →