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Although McLeod is a law professor, some of his legal claims have already been disputed by Orin Kerr on the Volokh Conspiracy.[1] He has published constitutiona

by sjy 10y ago

Although McLeod is a law professor, some of his legal claims have already been disputed by Orin Kerr on the Volokh Conspiracy.[1] He has published constitutional law nonsense before, and once accused a federal judge of 'tyranny' for upholding the Fourteenth Amendment argument that succeeded in Obergefell v. Hodges.[2] It is surprising to see so many commenters uncritically endorsing his conclusions. His main complaint seems to be: > [S]everal states have created an entirely novel phylum of law: the civil violation of a criminal prohibition. Using this nifty device, a city can charge you of a crime without any witnesses, without any probable cause determination, and without any civil due process. But McLeod never explains what this actually means, and goes on to describe an ordinary criminal trial where he was acquitted after the prosecution failed to prove its case to the required standard. While the focus on the trial suggests that he is complaining about criminal procedure, the real purpose of the article seems to be to deny the legitimacy of traffic cameras as a law enforcement mechanism. The vaguely-described contractual arrangements sound concerning, but he doesn't give any supporting evidence and those contracts weren't the subject of his case. Traffic cameras are common in the rest of the developed world and can be used consistently with the rule of law. This may involve the legislature infringing the rights of accused people by shifting the burden, or reducing the standard, of proof. That's something we should be careful about doing, but when the maximum penalty is a modest fine, sometimes it makes sense to qualify the accused's rights in order to save money on wasteful inquiries into trivial misdemeanours. This kind of balancing of rights and interests is routine in constitutional law. The Due Process Clause does prevent U.S. state governments from reversing the burden of proof in some criminal cases[3] – but this is not axiomatic, and McLeod didn't even show that the issue arose in his case. [1] 'Law professor gets a traffic-camera ticket. Hilarity ensues.' https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/13/law-professor-gets-a-traffic-camera-ticket-hilarity-ensues https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... [2] 'Yes, Tyranny is a Fitting Word' http://www.thepublicdiscourse.com/2015/03/14709/ http://www.thepublicdiscourse.com/2015/03/14709/ [3] 'Wrong on Red: The Constitutional Case Against Red-Light Cameras' http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1086&context=law_journal_law_policy http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article...

int_19h 10y ago
I think that his point is that, if he didn't know enough to take it to the trial, the original "conviction" (not really, since there was no trial - but in effect, enough to force the payment of fine) of him would stand, despite all those blatant issues of lack of evidence that are inherent in traffic cameras - in particular, the lack of the ability to prove that the driver is the specific person charged. In other words, the city wanted to fine him under the "civil" rules, where they claimed simple preponderance of evidence (car being on video, and its plate number establishing him as owner, and therefore the most likely driver) - even though the infringement itself was that of a criminal law, and no harm was demonstrated to pursue it as civil. But the moment he did challenge them, then - and only then - the new higher bar applied. Logic would dictate that either the bar should be applied from the get go - i.e. that no-one should be fined unless there's clear evidence that they were the drivers (which would likely result in all traffic cam evidence being summarily thrown out as inherently incapable of meeting that bar); or else, if we want the low preponderance of evidence bar for fines, then actual harm should have to be demonstrated for the fine to apply.

by sjy 10y ago

int_19h 10y ago

I think that his point is that, if he didn't know enough to take it to the trial, the original "conviction" (not really, since there was no trial - but in effect, enough to force the payment of fine) of him would stand, despite all those blatant issues of lack of evidence that are inherent in traffic cameras - in particular, the lack of the ability to prove that the driver is the specific person charged. In other words, the city wanted to fine him under the "civil" rules, where they claimed simple preponderance of evidence (car being on video, and its plate number establishing him as owner, and therefore the most likely driver) - even though the infringement itself was that of a criminal law, and no harm was demonstrated to pursue it as civil. But the moment he did challenge them, then - and only then - the new higher bar applied. Logic would dictate that either the bar should be applied from the get go - i.e. that no-one should be fined unless there's clear evidence that they were the drivers (which would likely result in all traffic cam evidence being summarily thrown out as inherently incapable of meeting that bar); or else, if we want the low preponderance of evidence bar for fines, then actual harm should have to be demonstrated for the fine to apply.