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Wednesday, December 21, 2016

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I'm not a lawyer, either, but I really don't know what I think of the decision. (I've read the article you linked to, but not the decision itself.) Part of my discomfort is that I don't believe adultery should be a crime. I believe it should be civilly actionable, but not a crime. Another part of my discomfort is that the rationale seems an endorsement of vigilantism. Does the federal wiretap act allow for such exceptions?

It made me a little uncomfortable too, but I'd liken his decision to prosecutorial discretion. Prosecutors aren't required to always prosecute violations of the law. They can consider non-legal factors. Extended to a judge, I think that sometimes the judge knows that the law is an ass as applied to a particular situation, and rules on that basis.

I'll have to think on that a little. I do believe judges have and should use discretion, but at the same time I'm uncomfortable with a ruling that seems to say it's okay to do something illegal as long as it's part of catching someone else doing something illegal, with that "something illegal" being a law that's rarely enforced and that punishes something I don't think should be a crime. I'd be more comfortable resting this type of discretion with a trial judge than an appellate judge.

But again, I didn't read the actual decision and probably don't have the legal chops to criticize or praise it knowledgeably.

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