"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Tuesday, August 07, 2018

My Bertie Wooster Moment

After using the beach prior to sunrise, and after seeing the below-sea-level aquarium, I decided to leave Eilat. My time there was not exactly propitious. On arrival, I called one of the city’s two chief rabbis and asked what restaurants were kosher. I was told: “none.” So I left. I headed north—there was only one road in that direction. I was on my way to Safed. It was Friday, 9 AM. I had a full tank of gas—and I was in a black suit wearing sunglasses. Really. I was on my way to an arranged date to take place before sundown. But I never got there; I never made it to that date.

I was driving a new Subaru. A rental car. The sun was out, and it was hot—hot as only a desert could be hot. I was going about 90 mph, maybe 100, and I had a blow out. My car exited the safety of the raised road. In effect, I flew off a small cliff. It all happened so fast. It was over in what felt like an instant. And then the car landed, luckily, right side up. Thinking that my gas tank might be punctured, I exited the car hastily—not that there was much left of it. All the tires flattened. All the windows fractured in 1000s of pieces. A total wreck. I was fine—just the smallest cut on my left hand. A scar I still have. I was fine, not one broken bone or damaged organ. There was nothing left of the car. I fished out my kit from the wreck—all intact.

If I ever go by that spot, I have to say Hallel there.

The only other vehicle on the road nearby was an Egged tour bus. It was full of German tourists. Really. I am not making this up. I was befriended by a German nurse who took my pulse. The tourists all thought it was a miracle that I survived. The driver said: “If you could do that again, go to Hollywood as a stuntman.”

The driver offered me a ride to Masada. From there I would call the rental car agency, and get a new car, or, at least, a way back to a settled abode before sundown. I called the rental company. I told them I was at Masada, and that I’d need a replacement car, “as there had been some damage to their property.” Could they bring me a new car? It was about 11 AM, and they hoped to come by 2 to 4 pm.

When they picked up the car, they recognized that it was totalled. No chance of repair. It was then that I had an epiphany—which I’d like to share with you. It is the sort of thing Bertie Wooster might say to Jeeves. If you return a rental car so damaged that it cannot be repaired, you don’t have to (and, indeed, you cannot) fill up the gas tank when you return it. The incentives do not make any sense—but that is the world we live in.

Seth Barrett Tillman, My Bertie Wooster Moment, New Reform Club (Aug. 7, 2018, 12:08 PM), (https://reformclub.blogspot.com/2018/08/my-bertie-wooster-moment.html

Rocky & Racism

I was about thirteen years old when Rocky came out. I saw it during the summer, while in sleepaway camp—in a camp trip to the town movie theatre in Warrensburg, New York. I did not know much (actually—anything) about boxing. Still, I am sure I could have followed the basic plot had I been on my own. But I wasn’t on my own. Most of the camp counselors (who were with us in the theatre) were from Slippery Rock, and they were studying to be school gym teachers and college coaches. They were good guys, and they knew everything about things like boxing. So during the movie, I had a running commentary as to the details from a counselor.

Summer ended. We went home. And in pretty short order there were all sorts of reviews that Rocky was about race. The great white hope. A movie only racists could love. Here is Joe Queenan in The Guardian:

Cheerfully moronic, imbued with an almost infantile racism to which Stallone and the film's enthusiasts have long purported to be oblivious, Rocky lionizes a small-time South Philly hood who somehow manages to wangle a bout with the reigning heavyweight champion of the world, and thereupon gives him the fight of his life. The champion, Apollo Creed, is a motor-mouthed African-American punk who shows no respect for America, much less the flag; he is transparently a stand-in for Muhammad Ali, who, though sainted and adored now, was in those days reviled by a substantial percentage of white Americans, particularly old school Caucasian fight fans. (Joe Queenan, America’s great white hope?, The Guardian, https://tinyurl.com/y7wxb6g3).

Just about everything is wrong about the statement above. Apollo Creed was not portrayed as a “punk.” He was the champion. He was a boxer—who was so much better than his peers that he found difficulty finding contenders. When he could not find a contender, it was his idea to create one: giving “a local Philadelphia boy a shot at the greatest title in the world.” What this shows is that Creed was not just raw strength—he was a thinker. And that’s the truth too many of our movies never put forward about professional sports—athletes and their coaches are thinkers.

The remaining claims are similarly false. There was nothing about Creed that showed a lack of respect for America or its flag. As to Rocky, he did not “wangle” his way to getting the bout with Creed. It was handed to Rocky—a result which was wholly unexpected (from Rocky’s point of view) and wholly undeserved (ditto). Most of Rocky was about his transforming himself to make himself worthy of the shot fate (and Creed) had gifted him.

Then there is the racism charge. What is meant by an “almost infantile racism.” If it is “almost infantile,” does that mean that it is adult-like, or does it mean “almost racist,” as in not racist? Plain and simple: Queenan is a race huckster. The natural consequence of such race hucksterism is to make producers and others afraid to make movies with a diverse cast.

Still, I used to (sometimes) wonder—did I root for Rocky because he was the underdog, or because he looked more like me than Creed? I always thought it was the former, but now I am sure. Here is why.

Have you seen the Ip Man martial arts series starring Donnie Yen? Here is a link to Ip Man 2, where Ip Man fights Twister—the stand-in for British boxing. The fight is cast as a confrontation between East and West, martial arts and Western boxing, the champion and the underdog. I know that I was rooting for Ip Man, and I am not Chinese. I suspect that most people (including most Caucasian people) in British theatres (that is, in the country next door) were doing much the same—even though Twister is draped in a Union Jack.

It might be irrational to root for underdogs. Maybe underdogs don’t deserve our good will. But giving them our good will and support isn’t rooted in racism. It transcends race. I rooted for Ip Man. Rocky was never about race. Case closed.

Seth Barrett Tillman, Rocky & Racism, New Reform Club (Aug. 7, 2018, 7:06 AM), ( https://reformclub.blogspot.com/2018/08/rocky-racism.html )

Friday, July 27, 2018

What is the "Privilege" of the Writ of Habeas Corpus?

Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev(forth. 2018–19) (manuscript at 4 n.12), https://ssrn.com/abstract=3213353

The Constitution states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2 (emphasis added). President Lincoln’s order, issued on April 27, 1861, only purported to give General Scott authority “to suspend the writ of habeas corpus.” See 6 Complete Works of Abraham Lincoln, 1860–1861, at 258, 258 (John G. Nicolay & John Hay eds., N.Y., The Lamb Publishing Co. new ed. 1894) (reproducing Lincoln’s order); Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 527 & n.116 (2016) (peer reviewed), http://ssrn.com/abstract=2646888. But in his July 4, 1861 message to Congress, Lincoln recharacterized his prior order as permitting suspension of the “privilege of the writ of habeas corpus.” 6 Complete Works, supra, at 297, 308–09 (emphasis omitted) (emphasis added). The difference between suspending the writ and suspending the privilege of the writ is night-and-day. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J., for a unanimous Court) (“The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.” (emphasis added)); see also, e.g., Ex parte Benedict, 3 F. Cas. 159, 174 (N.D.N.Y. 1862) (No. 1292) (Hall, J.) (“Such a suspension may prevent the prisoner’s discharge; but it leaves untouched the question of the illegality of his arrest, imprisonment, and deportation. If these are unlawful, the marshal and others engaged in these arrests are liable in damages in a civil prosecution; such damages to be assessed by a jury of the country.”). It is not particularly surprising that these distinctions are no longer understood, as this and much else relating to the Constitution’s original public meaning was forgotten even as early as Lincoln’s day, and, in regard to a few constitutional provisions and language, sometimes far earlier. But it is curious how few even notice there is a puzzle to be solved and a past to be explained. But see William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1853 n.255 (2008) (pointing out the same textual distinction regarding the “privilege” of the writ and the writ itself, but not resolving the distinction); but cf. Peter William Bautz, Lincoln’s Long Shadow: Recreating the Legal Debate over Habeas Corpus, 1861–1863 passim (Master’s Thesis, University of Virginia, Department of History, 2018), https://tinyurl.com/y96uy8ys (collecting some early authorities addressing the distinction).

My view is that suspension of the evidentiary privilege of the writ of habeas corpus precludes a court (or even an Executive Branch officer) from taking cognizance of a party’s pleading (or invoking) the writ (once granted to that party by that court or any other court of record) in subsequent contempt and enforcement proceedings (and, perhaps, in other collateral and ancillary proceedings). E.g., Merryman II (granting an order to serve an attachment for contempt where the defendant failed to produce the prisoner-plaintiff). Suspending the writ (as opposed to suspending the privilege of the writ) precludes a court from granting the writ, on the merits, in the first instance. E.g., Merryman I (i.e., an ex parte habeas order to produce a prisoner), or a Merryman III-like order (i.e., a habeas order to release a prisoner—albeit, of course, this did not actually happen in Merryman). When both the writ and/or the privilege of the writ are suspended, federal courts (having general federal question jurisdiction) will still have jurisdiction to determine if the suspension or suspensions themselves are constitutional—unless Congress has validly stripped the federal courts of jurisdiction to do so. The scope of Congress’s power to engage in such jurisdiction stripping is a complex subject, and one well beyond the scope of this Article. See generally Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251, 289 (2005). Recently, the Suspension Clause has received renewed interest and full-length treatment in books…but the meaning of the clause’s text…its actual words…they remain largely an undiscovered country. See generally, e.g., Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017). But see Baude, supra at 1853 n.255; but cf. Bautz, supra passim. I have put down some truly remarkable support for this position in another paper which this Response to Professor John Yoo is too small to contain. (I submitted a prior draft of this lengthy footnote as my abstract to the Tenth Annual Originalism Works-in-Progress Conference. See Tenth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, University of San Diego School of Law (last accessed July 27, 2018), http://www.sandiego.edu/events/law/detail.php?_focus=66934.)


Seth Barrett Tillman, What is the Privilege of the Writ of Habeas Corpus?, New Reform Club (July 27, 2018, 2:41 AM), 

Thursday, July 26, 2018

Tillman on the Judicial Backlog and Transparency in the Irish Judicial System

Tillman-authored Materials on the Court of Appeal and Transparency in the Superior Courts of Ireland                                                                                  

Seth Barrett Tillman, Court of Appeal: ‘The new court has failed to meet expectations, Journal.ie (July 26, 2018), http://jrnl.ie/4144580http://ssrn.com/abstract=3216200;

Seth Barrett Tillman, Op. Ed. (Thunderer), Court of Appeal failure should fuel reform of judiciaryThe Times (Irish edn.), July 26, 2018, 12:01 AM, https://tinyurl.com/yb2qb8dc;

Seth Barrett Tillman, Letter to the Editor, Court BacklogThe Irish Times, July 23, 2018, 12:02 AM, at 13, https://www.irishtimes.com/opinion/letters/court-backlog-1.3572788;

Seth Barrett Tillman, The Court of Appeal Backlog, 35(15) Irish Law Times 206–08 (2017), http://ssrn.com/abstract=2996405;

Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34(14) Irish Law Times 210–12 (2016), http://ssrn.com/abstract=2816458;

Seth Barrett Tillman, Opinion Editorial, Court of Appeal just a new version of Supreme Court—only more costly, The Irish Times (July 28, 2014, 1:30 AM), Business & Innovation at 7, http://ssrn.com/abstract=2465554http://www.irishtimes.com/news/crime-and-law/court-of-appeal-just-a-new-version-of-supreme-court-only-more-costly-1.1874746; and,

Seth Barrett Tillman, Opinion Editorial, Time to Open Courts and Let Justice Be SeenThe Irish Independent, August 22, 2012, 17:00 pm, at A14, http://tinyurl.com/bsy9789.

Quoted In:
Mark Tighe, Flanagan sees the appeal of more judgesThe Sunday Times (Irish edn.), July 22, 2018, at 8, https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Mark Tighe, Flanagan sees the appeal of more judgesThe Sunday Times (July 22, 2018, 12:01 AM), https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Willie Penrose TD (Labour Party, Longford-Westmeath), Dail Debate on the Judicial Appointments Bill 2016: Second Stage, Houses of the Oireachtas (Oct. 26, 2016), http://tinyurl.com/hqsvdeq (at 41:50ff) (discussing Tillman’s academic research);

Micheál Martin TD (Leader of the Opposition, Fianna Fail party, Cork South Central) in Dáil debates, Kildare Street (Oct. 18, 2016, 2:05 PM), https://tinyurl.com/jm4lbzs, http://tinyurl.com/zhnsw5w (quoting Tillman); 

Leading Article, The Legal Limit; Ireland’s courts system needs to be less like an academic common room and more like a busy branch of McDonaldsThe Times (Irish edn.), Sept. 27, 2016, 12:01 AM, http://tinyurl.com/zymmkow;

Mark Tighe, Supreme Court clears five-year backlogThe Sunday Times, Sept. 25, 2016, 12:01 AM, at News, at 10, http://tinyurl.com/hfnxlt2;

Connor Gallagher, Court of Appeal backlog ‘could take over a decade to clear’The Irish Times, Sept. 19, 2016, at 6, http://tinyurl.com/jdnqfkn;

Mark Tighe & Catherine Sanz, Half of cases overturned on appealThe Sunday Times (Irish edn.), Sept. 18, 2016, at 1–2, http://tinyurl.com/hvl3x3x;

Mark Tighe & Catherine Sanz, How we scraped for data on appeal decisionsThe Sunday Times (Irish edn.), Sept. 18, 2016, at 6;

Leanna Byrne, Backlog building at new Court of AppealThe Sunday Business Post, Dec. 28, 2014;

Leanna Byrne, An Appealing Prospect? The new court aims to improve efficiency, but critics are doubtfulThe Sunday Business Post, Nov. 2, 2014, at 20;

Mattie McGrath TD, Press Release, Court of Appeal Act will only entrench systemic delays, July 30, 2014;

Declan Lynch, Foresight beats hindsight in any raceThe Sunday Independent, Oct. 13, 2013, at 14;

Niamh Lyons, Now let’s see real reform of SeanadIrish Daily Mail, Oct. 7, 2013, at 6–7;

Colin Gleeson, How The Referendum Campaigns Unfolded: A brief history of the Seanad abolition and Court of Appeal referendumsThe Irish Times, Oct. 5, 2013, http://www.irishtimes.com/news/politics/how-the-referendum-campaigns-unfolded-1.1551693;

Mike Dwane, Supreme Court case delays ‘unsustainable’, says Chief JusticeLimerick Leader, Oct. 3, 2013;

Mark Tighe, Jobs For The Boys? The imminent referendum on whether to establish an appeal court has sparked fears the Justice Minister will put supporters on the benchThe Sunday Times, Sept. 22, 2013, at 10;

Ruadhan Mac Cormaic, Shatter arguments for Court of Appeal ‘incoherent’, says law lecturerThe Irish Times, Sept. 16, 2013, at 6, http://tinyurl.com/mqcxqp9http://ssrn.com/abstract=2326071; and,

Kieron Wood, Business of Law, Open Democracy Requires Free Media Access to Court DocumentsThe Sunday Business Post, July 14, 2013, at n21.


Seth Barrett Tillman, Tillman on the Judicial Backlog and Transparency in the Irish Judicial SystemNew Reform Club (July 26, 2018, 5:43 AM), https://reformclub.blogspot.com/2018/07/tillman-on-judicial-backlog-and.html.

Thursday, July 19, 2018

CONLAWPROF: A Post on Nativists and White Supremacists

Got it. It is all clear now.

You wrote: “It is a bald racial appeal to [Trump’s] white supremacist, nativist base.”

When you wrote the above, you were not saying that Trump’s base is made of “white supremacist[s]” and “nativist[s]”. Instead you were speaking to that part of Trump’s base which is “white supremacist” and “nativist”. It is really obvious from context—except that it is not. And your after-the-fact, clarification is very helpful. And we should also generously ascribe the best interpretation we can to your original and revised statements.

Of course . . . don’t do any of this close textual parsing of ambiguous language for Trump, and don’t look to his after-the-fact clarifications. That would be totally crazy. Makes no sense. Totally different. Of course, we should a hold a businessperson-turned-politician to a stricter standard than a [legal] academic. See Trump, Academia, and Hyperbole, http://reformclub.blogspot.com/2016/08/trump-academia-and-hyperbole.html. Makes complete sense.

By the way . . . throw me a bone here . . . you are now saying you were only speaking to part of Trump’s base. How big a part do you (and Professor X) think that segment of Trump’s base is? Does it include Trump’s Hispanic voters (maybe some 20% of the Hispanic vote) and his African-American voters (maybe some 10% of the African-American vote). And if it does not include them, exactly who is left in that base that you are calling nativist, etc? Who?

Throw me a bone. What precisely do you and Professor X (now) mean?


Seth Barrett Tillman, CONLAWPROF: A Post on Nativists and White Supremacists, New Reform Club (July 19, 2018, 6:05 PM), https://reformclub.blogspot.com/2018/07/conlawprof-post-on-nativists-and-white.html 

Tuesday, July 17, 2018

My Post on CONLAWPROF: my response to a discussion about removing Trump from office

Professor X:

I think you are confusing apples and oranges. 

What I said was that “removal was one thing”. We can have a debate about what constitutes good reasons for removal, and what political process best accommodates a needed removal. We can talk about whether we have reached a level of existential crisis such that a political actor could go beyond the regular bounds of the legal system to accommodate an exceptional situation. I believe that back in 1868, a Representative or Senator could have rightly voted to impeach and convict President Johnson (that is, consistent with his oath to uphold the Constitution). But the country survived Johnson and the Reconstruction programme blossomed under Republican majorities and subsequently under President Grant. So maybe I am wrong about the impeachment of Johnson. We can talk about whether we face a crisis of similar magnitude under Trump. 

But that debate (in my opinion) should not involve loose talk about concepts from the criminal law. Eg: “aid and comfort”. The only thing you’ll accomplish going down that road is to produce confusion in Congress, in the courts, and in the public mind. If you are lucky, it will start and end with mere confusion. If you are unlucky, such a strategy will yield speech crimes, speech monitors, and a speech police. The game is not worth the candle. 

Presidents are citizens too. They are allowed to have views—even controversial ones—including ones about which the President’s opponents disagree. If you are going to argue that the President’s expressing otherwise lawful speech about policy is a reason for removal, then I might add that that position is not precisely in tune with what a great many Americans believe about their political and legal inheritance. 

If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification. 

Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct. 


Seth Barrett Tillman, My Post on CONLAWPROF: my response to a discussion about removing Trump from office, New Reform Club (July 17, 2018, 9:04 AM), https://reformclub.blogspot.com/2018/07/my-post-on-conlawprof-my-response-to.html

Wednesday, July 04, 2018

Poland's Judicial Crisis: My Post on CONLAWPROF

I am just going to note that many societies have had disputes about how best to manage and appoint an independent judiciary. Perhaps the most well known such incident in the U.S. involved the 1801 Judiciary Act, Adams' midnight judges, the Repeal Act, and the 1802 Judiciary Act--culminating in Stuart v Laird (1803), which (according to the standard histories) upheld the power of Congress to abolish lower federal courts notwithstanding that the judges on those courts had good behaviour tenure. 

A less well known American incident involving the manipulation of the courts by the elected government took place during the Civil War...when Congress abolished the (federal) Circuit Court for D.C circa 1863. Why was this done? To get rid of troublesome Judge Merrick. Merrick was an Article III judge, and Lincoln had already stopped his pay! Merrick was using habeas corpus to let people out of the army during war time! See Murphy v. Porter (1861). So his court (along with his colleagues) had to go to save the country. Of course the "people" Merrick sought to remove from the Army were apparently legally still children who had volunteered and lied about their age in order to enlist--thereby separating themselves from their parents, who brought habeas corpus actions to retire their children from further Army service. 

I have read lots of histories of these events--some contemporaneous and some modern. I don't remember anyone using the language of "purge". I must have missed that. And notwithstanding the intervention by the elected arms of the government manipulating the judicial system, our country went on nicely absent any apparent authoritarian turn. (Unless of course, you think Jefferson and Lincoln were authoritarians.)

Arrayed against the policy of the elected government of Poland (which ran for election twice on this policy) is: the EU Commission (not elected), the decisions of the European Court of Human Rights (not elected), the Council of Europe / Venice Commission (not elected), and any number of Polish judges -- all appointed by a process wholly insulated from democratic control. But I repeat myself. 

I cannot prove this, but I expect if during our domestic squabbles involving the elected arms of the government manipulating the federal courts (circa 1802, and again circa 1863, or even today in relation to court packing) a bunch of international organisations told us what to do, such interventions would not have been (and will not be in the future) very welcomed, and might very well have made (and will make in the future) normal political compromise less likely.

"Purge". If you want more Trump ... but I repeat myself.


Seth Barrett Tillman, Poland's Judicial Crisis: My Post on CONLAWPROF, New Reform Club (July 4, 2018, 1:49 PM), https://reformclub.blogspot.com/2018/07/polands-judicial-crisis-my-post-on.html

Friday, June 29, 2018

I trust science. Scientists, not so much.

On a major Vision of the Anointed, anthropomorphic
global warming climate change, a Nobel laureate in physics includes himself out:
Dr. Ivar Giaever, a former professor with Rensselaer Polytechnic Institute and the 1973 winner of the Nobel Prize in physics, abruptly announced his resignation Tuesday, Sept. 13, from the premier physics society in disgust over its officially stated policy that “global warming is occurring.”
The official position of the American Physical Society (APS) supports the theory that man’s actions have inexorably led to the warming of the planet, through increased emissions of carbon dioxide.
Giaever was cooled to the statement on warming theory by a line claiming that “the evidence is inconvertible.”
“In the APS it is ok to discuss whether the mass of the proton changes over time and how a multi-universe behaves, but the evidence of global warming is incontrovertible?”
Now, I’d like to use a “mainsteam” source for this instead of Fox, but a google doesn’t show any of them reporting it yet. Perhaps The New York Times will mention it in its own good time, but regardless, we should not expect a fawning tribute to Dr. Giaever in the NYT Magazine, as the brave rebel who gave the intellectual finger to the reigning academic Powers That Be.
The Leviathan of the Anointed has two heads, the academic establishment and the traditional media, a synchronized one-two bite that’s impressively deadly to its foes: one plays the game and the other prints the box scores, where the good guys always win.
I had an interesting exchange with an academician recently, the author of a new book for the Harvard University Press presumably on history, but really appears to be a Coulter-style polemic [sans wit and originality] against the fundamentalist Religious Right, therefore against the right, therefore against the GOP, therefore Vote Democrat. We Anointed-watchers are already familiar with this script. Even street-fighter James Carville knows the lines by heart:
“…these creationism-loving, global-warming-denying, immigration-bashing, Social-Security-cutting, clean-air-hating, mortality-fascinated, Wall-Street-protecting Republicans running my country.”
The rhetorical tactic is that creationism [on which the academy is surely correct] is leveraged into the self-evident truth of the academy’s other left-liberal positions on everything else: ecology, sociology, sexuality, history. Policy.
I recently declined an invitation into the tall weeds of the AGW debate; two commenters accepted it and spent hours and hours of research and cut-and-paste to the net effect of zero. So I decline again–my point then and now is that the Anointed have squandered the public trust on all these issues, with their claims that “the case is closed” and the strong-arming of their critics under cover of scholarly authority.
No surprise, then, that one recent poll found “69 percent of those polled believe it’s at least somewhat likely that some scientists have falsified research data in order to support their own theories and beliefs. Just 6 percent felt confident enough to report that such falsification was “not at all likely.”
Another poll found that 57% of Americans trust the media to report “fully, accurately and fairly” not very much or not at all. The Great Unwashed may be dumb, but they ain’t blind.
Our civic problem remains epistemological: that’s why we can barely have an adult discussion across ideological lines anymore. It’s my opinion that the Anointed of the academy and the media have betrayed their trust by their tactics. Whether or not that opinion is true, what’s a fact is that they have lost their trust and authority with a strong majority of the American public, and that’s the name of this tune.
Me, I don’t think academic alphabet soup after one’s name or a byline in the NYT liberates anyone from the bias and shading of the argument that we’re all prone to.
Because The Anointed are human beings, too. Sort of.

Wednesday, June 27, 2018

The Post "demolishes" a Trump immigration claim Trump never made

“If you get people asking the wrong questions, you don’t have to worry about the answers” --Hunter S. Thompson  

I see the Washington Post's "Wonkblog" has set out to "demolish" the Trump position that immigration is associated with crime. Right from the start, "demolition" seems a curious goal for a "wonk," by the name of Christopher Ingraham, whose interest is supposed to be about facts and figures. Yet Mr. Ingraham don't even begin with numbers. What instead is his purely factual starting point? It is Trump's "notion that immigrants here illegally commit more crime." This "notion," of course, is the Post's headline, not Trump's actual words. What is the source of the Post's claim about Trump's "notion"? It is the White House's "alarmist accounts" and "exaggerated [] threat[s]," including about MS-13. 

If you're like to accept the Post's framing of the question then you don't even need to hear the answer. 

Anyway, the Post wonk sets out to "demolish" Trump's supposed "notion" by positing immigrants commit far fewer crimes than native-born citizens. 

Pardon me, that is not quite right. The precise conclusion of the Cato study covered in the piece is that fewer immigrants were "convicted" of crimes in 2015 in Texas. Apparently researchers looked at data submitted by Texas prosecutors about their criminal cases. But do we know how many total victims there were? Do we know how many charges were successfully prosecuted against each criminal? Do we know how many victims each crime created? The wonkperson's reporting does not indicate. 

Obviously, innocent citizens have as much to fear from a single criminal who perpetrates multiple or repeated crimes than multiple offenders who perpetrate a single crime on a single occasion. Moreover, certain groups can be particularly victimized: Brussels Jews had their Purim festival canceled in 2016 because of security concerns. Such measures might help keep immigrant crime stats down, but where on the ledgers are these special costs entered? Without it, there is no way to "demolish" citizens' fears, or Trump's prescriptions for them. It seems "demolition" may need to wait. 

And what do we know of the number of immigrant crimes that are reported -- or underreported? I see this question has been vexing research of the issue for many years, confounding attempts to understand the issue. The MS-13 gang began as an outgrowth of underreported immigrant crime: Los Angeles immigrants from El Salvador in the 1980s formed the gang to protect themselves from fellow-immigrant predators there. And how have law enforcement attitudes changed since then? Just a New Year's celebration ago the world saw that a mass sexual assault could be covered up by every organ of the state. If that's progress, say the half of America that elected Trump, include us out. 

Despite the sympathy of the host country's leadership to immigrant communities, PolitiFact tells us our "overall understanding of immigrants and crime 'remains confused.'" We still don't know how often immigrants fail to report crime, or why. PolitiFact also tells us "incarceration rates are a poor way to measure links between immigrants and crime." 

The sappers may need to resolve this internecine feud before they get to work "demolishing" the President's claims. 

Back to the Post piece. Immigrants, whether documented or no, according to studies that apparently focus on the number of criminals rather than the number of crimes -- and which apparently do not account for underreporting -- are actually more law-abiding than native-born citizens. Is this meant to be any more surprising than the well-accepted assumption that airline passengers are more law-abiding than the general population? And yet to my knowledge the Wonkblog has never undertook to demolish policies for airline security or chastised "alarmist accounts" of terrorists' attempts -- successful and otherwise -- to hijack and blowup planes. To the contrary, it is firmly accepted that criminals who get on airplanes are punching above their weight. Why isn't it even considered remotely plausible, let alone accepted, that foreign criminals who cross our border are punching above their weight? On what purely scientific basis is immigrant crime deemed to be no more frightful or alarming than native-born crime? 

How do we check the fact-checkers' values? 

Perhaps it is plausible that, if we assume the immigrant is law-abiding, the immigrant will remain law-abiding: why make the arduous journey only to piss it away on a life of crime? But it is equally plausible that, if we assume the immigrant is, say, an MS-13 gang member at the time of entry, we might likewise presume the immigrant will remain a criminal menace once here. MS-13 produces many more victims, and with much greater brutality, than the average native-born criminal does. This would suggest the conclusion it may well be reasonable to conduct some sorting before allowing in an undifferentiated mass of people, even assuming they are on average a more law-abiding bunch than the current cohort. We have no less need to sort immigrants than we do airplane passengers. Assuming the average decency of a cohort of people does not excuse us from preventing the great risks that may be created by a small subset. 

So the most we can conclude so far from the Post piece is that an effective open-borders policy does not create a greater number of criminals, even if it tells us nothing about the total effects these criminals are having on Americans. 

And what about the immigrants' children? PolitiFact also tells us crime does spike among the children of immigrants. A state official concurs: 

""We're talking about third- and fourth-generation [immigrants]; these youngsters are born in Belgium, even their fathers and mothers are born in Belgium, and still they are open for these kind of messages. This is not normal -- in the U.S., the second generation was the President; here, the fourth generation is an IS fighter -- so that is really something we have to work on."" 

Do you object to my citing the Belgian Interior Minister? Why? Do you assume immigrants are unequal in their capacity to become good citizens? Do you assume that countries are unequal in their ability to assimilate immigrants? One of the greatest experimental scientists of Francis Bacon's time, William Harvey, said science was more than merely making observations -- "the vital factor of judgment [is] about what to observe and what to pay attention to." Are the Washington Post or other mainstream news sources providing reporting that meaningfully probes these basic assumptions underlying immigration? Or do you think they are leaving out something important? And do you think this omission is sending readers to other sources, including President Trump, to support these plausible and existentially relevant assumptions? 

Monday, June 25, 2018

Leo Strauss vs the Modern Future

THE OCCASION WAS LEO STRAUSS’ [1899-1973] years-long correspondence with the brilliant and mercurial Hegel scholar Alexandre Kojève [1902-1968], contained in the volume “On Tyranny.” The Google books preview is HERE.
Kojève is fascinating, one of those major figures in philosophical-political history you never seem to hear of. [Hell, James Madison doesn’t have a memorial, isn’t on a coin or anything anymore since they killed the $5,000 bill. But we digress.]
Alexandre Kojève invaluably got the European Union started, and Francis Fukuyama, author of The End of History, was his student.
Was Kojève cool or what? If you threw Sartre, Michael Caine and Woody Allen in a blender, you’d get Strauss’ “Dear Mr. Kojevnikoff.”
By contrast, Uncle Leo had a visage like a potato.
uncle leo strauss
Although the cigarette holder is a nice touch. But we digress yet again. Dang us!

The “End of History” is the not-unlikely prediction that human progress will one day yield something resembling today’s Western World, a bourgeois liberal democracy where everyone’s material needs are met and political division is quieted by the rise of a Universal and Homogeneous State. There will be nothing left to fight about.
Philosophy becomes democratized, the parable of Plato’s cave rendered un-egalitarian and therefore obsolete—if not obscene to modern sensibilities.
Strauss, faced with an effective rebuttal by Kojève of Strauss’ original essay about trying to advise tyrants not to be so tyrannical, on Xenophon’s “Hiero,” was obliged to write a “restatement.” The story is here.
Ah, I’ve taken too much of the gentle reader’s time with preface. I did want to convey the gravity and historical importance of the philosophical issues, laid bare in the Strauss-Kojève correspondence—the clash of the classical and modern worlds played out in the EU/UN/and America’s own left-right context. Hope it enhances the below Strauss excerpt, the final paragraphs near the end of his Restatement.
NB: Although he was an "admirer" of the American liberal system, Strauss is quite the Platonist. He mocked Wilsonianism, and wouldn’t be caught dead in a field with messianic democracy.
TO BUSINESS, THEN, as Strauss assays Kojève’s Brave New World:
“There is no longer fight nor work. History has come to its end. There is nothing more to do.” This end of History would be most exhilarating but for the fact that, according to Kojève, it is the participation in bloody political struggles as well as in real work, or generally expressed, the negating action, which raises man above the brutes. The state through which man is said to become reasonably satisfied is, then, the state in which the basis of man’s humanity withers away, or in which man loses his humanity.
It is the state of Nietzsche’s “last man.” Kojève in fact confirms the classical view that unlimited technological progress and its accompaniment, which are the indispensable conditions of the universal and homogeneous state, are destructive of humanity. It is perhaps possible to say that the universal and homogeneous state is fated to come. But it is certainly impossible to say that man can reasonably be satisfied with it. If the universal and homogeneous state is the goal of History, History is absolutely “tragic.” Its completion will reveal that the human problem, and hence in particular the problem of the relation of philosophy and politics, is insoluble. For centuries and centuries men have unconsciously done nothing but work their way through infinite labors and struggles and agonies, yet ever again catching hope, toward the universal and homogeneous state, and as soon as they have arrived at the end of their journey, they realize that through arriving at it they have destroyed their humanity and thus returned, as in a cycle, to the prehuman beginnings of History. Vanitas vanitatum. Recognitio recognitionum.
Yet there is no reason for despair as long as human nature has not been conquered completely, i.e., as long as sun and man still generate man. There will always be men (andres) who will revolt against a state which is destructive of humanity or in which there is no longer a possibility of noble action and of great deeds. They may be forced into a mere negation of the universal and homogeneous state, into a negation not enlightened by any positive goal, into a nihilistic negation. While perhaps doomed to failure, that nihilistic revolution may be the only action on behalf of man’s humanity, the only great and noble deed that is possible once the universal and homogeneous state has become inevitable.
The Chief of the universal and homogeneous state, or the Universal and Final Tyrant will be an unwise man, as Kojève seems to take for granted. To retain his power, he will be forced to suppress every activity which might lead people into doubt of the essential soundness of the universal and homogeneous state: he must suppress philosophy as an attempt to corrupt the young.
The philosophers in their turn will be forced to defend themselves or the cause of philosophy. They will be obliged, therefore, to try to act on the Tyrant. Everything seems to be a re-enactment of the age-old drama.
But this time, the cause of philosophy is lost from the start. For the Final Tyrant presents himself as a philosopher, as the highest philosophic authority, as the supreme exegete of the only true philosophy, as the executor and hangman authorized by the only true philosophy. He claims therefore that he persecutes not philosophy but false philosophies.
The experience is not altogether new for philosophers. If philosophers were confronted with claims of this kind in former ages, philosophy went underground. It accommodated itself in its explicit or exoteric teaching to the unfounded commands of rulers who believed they knew things which they did not know. Yet its very exoteric teaching undermined the commands or dogmas of the rulers in such a way as to guide the potential philosophers toward the eternal and unsolved problems. And since there was no universal state in existence, the philosophers could escape to other countries if life became unbearable in the tyrant’s dominions.
From the Universal Tyrant, however, there is no escape. Thanks to the conquest of nature and to the completely unabashed substitution of suspicion and terror for law, the Universal and Final Tyrant has at his disposal practically unlimited means for ferreting out, and for extinguishing, the most modest efforts in the direction of thought. Kojève would seem to be right although for the wrong reason: the coming of the universal and homogeneous state will be the end of philosophy on earth.”

Wednesday, June 13, 2018

My Contribution to the Conlawprof Listserv

Re: Leader Uber Alles: Responding to Professor ABC & Professor XYZ

Professor ABC: “El Caudillo del Mar-a-Lago has systematically destroyed the western alliance that has prevailed since the end of WWII ….”

The original rationale and the traditional rationales for U.S. participation in NATO included: [1] Europe was broke after WWII (including the European nations among the allies which won the war); [2] Europe was fractious and disorganized; and, [3] a disunited Europe faced a unified (atheist and communist) Soviet Union (and later Warsaw Pact bloc) with designs on dominating (at least) Western Europe. That world is gone, and with it, the original and traditional rationales for continued U.S. participation in NATO. 

Today, Europe is not broke. Today, Europe is not disorganized (e.g., Council of Europe, EU, etc.) And today, the Soviet Union, Warsaw Pact, and expansionistic atheistic world communism are no more. It is true that Russia is a great regional power, and it is a real threat to its neighbors. But Russia is a threat which Germany and France, in cooperation with one another and with other European countries, can defend themselves from. Russia is only an American problem is you adopt the near messianic mission that the U.S. defense perimeter must include each and every nation of Western, Central, and Eastern Europe—including nations spun out of the former Soviet Union. If, in Professor ABC’s words, “El Caudillo” shifts the burden of defending Europe from the U.S. onto Europe—i.e., onto Europe’s soldiers and taxpayers—that might be a yuuge win for the United States—and the U.S.’s soldiers and taxpayers. It strikes me as the sort of policy difference that is part-and-parcel of “normal” democratic politics (as opposed to “El Caudillo” politics). Nor should Trump’s position come to us as a total surprise. This issue was contested during the presidential election. See https://www.factcheck.org/2016/05/whats-trumps-position-on-nato/. Again: all normal politics. Given the all too recent destruction of the Libyan state, under NATO auspices, by a joint adventure of the U.K. and France (with a green light from the U.S.’s State Department under Secretary Clinton), a serious unwinding of America’s defense commitments to NATO (and, perhaps, elsewhere) might put a needed damper on other such misadventures.

Professor XYZ: “Our Allies are being alienated while Putin gloats about the destruction of the European Union.” The United States has no tools to control Putin’s gloating, or the future of the EU. The dissolution of the EU, its continuation in its current form, or in some different future form—is not anything the U.S. can meaningfully control. (Unless, of course, one has a near messianic vision of America’s role in the world ... but I repeat myself.) 

The future of the EU is in the hands of EU institutions, its member states, and the people(s) of Europe. When President Obama visited the U.K. and urged its people to vote against BREXIT, he did so at the request of the elected Prime Minister, but a majority of U.K. voters voted otherwise, and Cameron resigned. Surely some U.K. voters and some U.K. government officials were alienated by the President’s intervention. Was our ally, the U.K., alienated by President Obama’s intervention? It is a tricky question. The same is true with regard to Trump’s policies which impact our allies. Maybe some officials in the governments of our allies are alienated by Trump’s policies: that is quite possible. But neither Trump nor those foreign officials will be in office forever. Asserting that our allies are alienated seems a bit premature.

Perhaps, one reason that some of our allies’ governments are “alienated” is that Trump appeared quite serious in telling our allies to meet their 2%-of-GDP defense commitment—a NATO policy. It is a policy which is only being met by about 5 of NATO’s 28 members. See http://time.com/4680885/nato-defense-spending-budget-trump/. It might surprise some on this listserv that some Americans are alienated by our forever footing the defense bill (including the all too real human costs) on behalf of the free riders of Europe. 


Seth Barrett Tillman, My Contribution to the Conlawprof Listserv, New Reform Club (June 13, 2018, 10:04 AM), https://reformclub.blogspot.com/2018/06/my-contribution-to-conlawprof-listserv.html