Saturday, August 25, 2007

Zell Kravinsky Gave Away a Kidney... save a stranger who needed it. See Ian Parker, "The Gift," The New Yorker, August 2, 2004, p. 54. He also gave away most of his considerable fortune ($45 million).
His wife complained mainly about his decision to give away one of his two kidneys.
What -- if anything -- was wrong with Kravinsky's logic?

Kravinsky calls himself a utilitarian. In the spirit of Peter Singer, I guess. But that self-characterization strikes me as odd. Zarinsky seems more like St. Francis of Assisi -- but without Christian or other religious trappings.

In an interview on BBC radio (dated August 25, 2007) ZK called a refusal of a person (any person) to donate one of two healthy kidneys "murder." He also wondered whether he would be obligated to give away his other kidney if doing so would save the life of a donee who he knew would -- through, e.g., medical research -- save the lives of hundreds, thousands, or millions of other people.

Of course, putting aside the question of Zell Kravinsky's duty to his family, Zell Kravinsky probably needs no logic to defend himself. If ZK chooses to give away his fortune and one of his kidneys, is it possible to argue that Kravinsky is doing something wrong or "incorrect"? (Well, yes, I know: it is almost always possible to make an argument -- if, that is, even a patently absurd argument counts as an argument. But you know -- seriously, admit it, you do know -- what I mean.)

Perhaps there is a slippery slope problem here. The surgical procedure to remove a kidney does slightly increase the donor's risk of death. But suppose that the increased risk of death is substantial -- e.g., 10%. What then? Some observers might contend that in such a situation the ZKs of the world would need a justification. (But, note, this revised situation is not much like suicide -- since even in the revised scenario the donation is made to save another person's life, not to terminate the grief or suffering of the donor.)

Tuesday, August 21, 2007

The Newark Killers & MS-13

There have been reports that some of the alleged killers of the three young people in Newark are members or admirers of the gang MS-13. See, e.g., here, here, and here. Should any such evidence about MS-13 be admissible in the trial or trials of the alleged killers for murder and for, e.g., conspiracy to commit robbery?

This problem would make a nice examination question in an Evidence course.

Note 1. Does it matter whether or not the alleged killers were or were not in fact members of MS-13?

Note 2. Does the evidence show or suggest that some but not all of the killers are members of MS-13 or admire MS-13? If so, does this matter?

Note 3. Some of the evidence of an affection for MS-13 may reside on a computer web site (MySpace) and on a computer controlled by one of the killers. Does this fact implicate the First Amendment? If not, does it matter (to the question of admissibility) whether or not, e.g., the page on MySpace was seen, e.g., by its creator -- one of the alleged killers -- as a vehicle for self-expression -- or perhaps even as a vehicle for the expression and communication of political or ideological sentiments?

Note 4. Does the use of evidence about MS-13 amount to invidious profiling? Would statements by gang members in, e.g., Guatemala be admissible? If you think not, would your answer change if you found out that the alleged killer heard such statements (about, e.g, an intent to rob, torture, etc.) by the gang member in Guatemala?

Note 5. Would evidence of membership in MS-13 amount to prohibited character a/k/a propensity evidence? Or would such gang membership just amount to evidence of motive, intent, or some such thing? Does it matter what, precisely, "evidence of membership in MS-13" amounts to?

Enough questions for now. Perhaps you folks have some thoughts. (I have not even mentioned here the possibility that evidence of membership in MS-13 might be unduly prejudicial because, e.g., the evidence suggests that the alleged killer is an illegal immigrant or, say, because the gang membership evidence "reinforces" the jury's awareness of the ethnic identity of the alleged killer or killers.)

New Articles by Professor Mirjan Damaska and Judge Jon Newman

A new issue of Law, Probability and Risk is now in print. Here is the table of contents.

One of the articles in the new (double) issue of LPR -- 5 Law, Probability and Risk Nos. 3-4 -- is by Mirjan Damaska of Yale Law School. This article, a response to an article by Professor Frederick Schauer, has a penetrating and important discussion of the old question of the relationship between trial by jury and the law of evidence. The article: The jury and the law of evidence: real and imagined interconnections.

The short paper -- a comment -- by Judge Jon O. Newman of the U.S. Second Circuit Court of Appeals discusses an earlier three-sided discussion in the same journal about possible quantification of the reasonable doubt standard of proof in criminal trials. Judge Newman's paper: Quantifying the standard of proof beyond a reasonable doubt: a comment on three comments. (The participants in the earlier three-way discussion were Professor James Franklin, Judge Jack B. Weinstein and Ian Dewsbury, and Peter Tillers and Jonathan Gottfried. See table of contents for 5 Law, Probability and Risk No. 2 (2006).)