About this site

  • Comments
    When you submit a comment, it won't be published until approved. This is to cut down on comment spam. However, I will also edit or block comments that are profane or offensive.
  • No Legal Advice
    Although I may from time to time discuss legal issues on this blog, nothing that I post should be construed as legal advice, nor as creating an attorney-client relationship between you and me. In fact, there's a good chance I'm not licensed to practice law wherever you are. If you need legal advice, you should consult an attorney licensed in your jurisdiction.
  • Personal View
    This blog is neither affiliated with my employer nor hosted by it. It is maintained through TypePad, and I pay the hosting fees. Nothing that is posted here should be construed as anything other than the views of the particular author of the post.
  • Tung Yin's Recent Papers (SSRN)

April 2014

Sun Mon Tue Wed Thu Fri Sat
    1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30      


  • Check Google Page Rank

« You Only Fail Upward in the Bush Administration | Main | A New Low, Even for Republicans »

November 17, 2004


Tung Yin

I'm in agreement with you (heck, even beat you to the punch with my post) on everything except one point: "Sure, he's a criminal." He may turn out to be a criminal, but he hasn't been indicted yet. I realize you're just writing colloqually, but as a former defense attorney, is it right for you to make such judgmental claims?

Federalist No. 84

I agree with Yin. Once you prejudge him as a criminal, you lose the moral and strategic high ground. Others could say, "Heller believes in the presumption of innocence, but not when you're a Republican!"

Anyhow, the Republicans are great hypocrites when it comes to lawyers and criminal justice. Drugs and lawyers are bad, except when our buddy Rush is in trouble. Then we talk about privacy, pain, and retain Roy Black. (!) We should not allow people who commit crimes touching national security to have lawyers. Excepting when someone leaks a CIA agent's name. Thus, Bush goes before the grand jury lawyered up.

I'm waiting for someone from the "personal resonsibility" crowd to say: "You know what. I made a bad choice and I'll accept the consequences. Also, I've been telling you for years how wonderful the police and prosecutors are. Thus, I'm going to come clean to them and trust their judgment."

A. Rickey

Prof. Yin, you really should give up on trying to hold Prof. Heller to any kind of neutral principle. Your time might be better spent on any of a number of activities, including attempting to blot out the sun with a sunflower seed.

First of all, if his rallying cry is, "Shame upon the Republicans for returning to the ethical standards of Dan Rostenkowski," one must wonder if he's suggesting the Democrats ever left those standards. "See, they were never any better than we are" is... well, let us say an odd banner to raise so forthrightly. If hypocrisy is the tribute that vice pays to virtue, the fact that one has never paid such tribute is an odd claim to moral rectitude.

Nevertheless, Prof. Yin, you're missing the point. Delay's guilty. He is, after all, a Republican, and we know that they're guilty because, you see, they're Republicans. Just as Fed there knows that Republicans are "great hypocrites when it comes to lawyers and criminal justice," without pointing to a single Republican making the absurdly simplified argument he submits, and then making the absurdly simplistic "contradiction" to show their hypocrisy.

(This is not, of course, to say that there's aren't hypocritical Republicans: one advantage of the religious bent of conservatism is the acceptance of man as a fallen creature, meaning he's prone to sins of all sorts, of which hypocrisy is the most obvious. And I'm sure that F84 can find some obscure pundit out there who's made the overly-broad statements he's described above, and then also stuck up for Limbaugh.

But any sane moralist would point out first that individuals are hypocrits, not groups, and hypocrisy is a particularly individual failing. After all, one can only behave hypocritically by contradicting one's own beliefs and avowals. The fact that one might find a few Republicans making absurd statements says nothing about the group as a whole, only that there are silly Republicans, just as some might admit there are silly Democrats. Then this sane moralist might finally point out that using characterizations as loose as F84's, we could accuse just about any group of hypocrisy about just about anything, and that so doing is perhaps an amusing exercise, but ultimately pointless, if not offensive.)

But what need of we of sane moralist, Prof. Yin? You are so dreadfully missing the point. There is demonizing to be done, and who cares if one is a former defense attorney? (And don't bother to tell us, Prof. Yin, about what another sane moralist said about giving the Devil the benefit of law--we all know what happened to him.) Might the prosecution be politically motivated, the evidence thin? Who cares! Why must we stop to consider, Prof Yin: he's Tom Delay, and thus a Republican crook.

Which leads us to only one conclusion: given such care for due process of law, we should nominate Prof. Heller to Attorney General for Wales.

Kevin Jon Heller

The argument is simple. Let's see if A. Rickey can follow it. [1] The Republicans passed the indictment rule in 1993, at which time they held themselves up as morally superior to the Democrats. [2] The indictment rule prohibits Representatives from holding leadership posts if they have been indicted by a grand jury. [3] The Republicans now fear that one of their own is going to be indicted. And so [4] The Republicans have changed the rule.

We have a name for that kind of behavior: hypocrisy.

A. Rickey's "defense" of De Lay? "Might the prosecution be politically motivated, the evidence thin? Who cares!"

Absolutely correct. The indictment rule, passed by the Republicans, provides a very simple test: if the grand jury indicts, the Representative cannot hold a leadership post. End of story.

A. Rickey


What part of the argument above supports the statement that Delay is a crook? You'll note that you have provided a counterargument to a part of your posting with which I did not take issue.


I guess I took the use of the term "crook" to be a colloquial use that fit with the tone of the rant. My legal training is slim, but I doubt Black's defines the term "crook," and I don't think you'll find it in too many law codes, so I took Kevin's use of it to be a broad, conversational usage to mean a person of questionable ethics or morals, which to me, DeLay appears to be.

Tung Yin

Yes, Tom, but in the text of the post, Kevin called DeLay a "criminal." Obviously, I understood it to be the hyperbole Kevin no doubt intended it to be, but still, it's technically wrong and arguably libelous.


Wouldn't he be protected by Sullivan? My (admittedly shallow) understanding of libel law is that it's pretty much open season on public officials, like DeLay. You can call him a criminal, a twit, crazy, or a scurrilous rascal, you can say that his mother was a hamster and his father smelled of elderberry, it's almost impossible to win a libel case against a public official. Otherwise, Rush Limbaugh would owe Bill Clinton a lot of money.

Tung Yin

Well, it's been a while since I studied libel law, but I'll take the easy way out and note that I wrote "arguably." DeLay wouldn't win a libel suit, but that's not because the statement isn't libelous; it's because the First Amendment might protect it.

That said -- and I'm not trying to make DeLay's case against Kevin -- here's where the difference between "criminal" and "crook" might matter. Criminal could have a specific enough meaning, one that DeLay doesn't (yet) fit, such that DeLay can prove falsity. He hasn't been convicted, ergo, he's not a criminal. Sullivan kicks in the requirement of "actual malice" -- knowledge of falsity or reckless disregard. That's all a subjective question of what Kevin was thinking when he wrote the post.

Again, I don't think DeLay would win the libel suit; I don't think Kevin really intended to call him a "criminal"; but it was a sloppy sentence in an otherwise good post.

A. Rickey

So--in order to avoid making any further easy shots at the Attorney General for Wales here--a question on "hypocrisy": am I correct in thinking that even after Rostenkowski, the Democrats still have no rule equivalent to the one the Republicans just changed?

The comments to this entry are closed.