Everything you say can and will be used against you.

Sunday, October 13, 2019

Wednesday, October 09, 2019

Why the DOJ Acts for the Defendant in the Emoluments Clauses Cases

October 6, 2019

The Washington Post
Letter to the Editor

Re: David A. Fahrenthold, Ann E. Marimow & Robert Barnes, Justice Department helps Trump fight financial probes, The Washington Post, Oct. 5, 2019, Sect. A, page 5.

Dear Letters Editor,

Your October 6, 2019 article took the position that “federal [government] lawyers have defended” Trump in the three Emoluments Clauses cases. That’s not quite right.

In two of these lawsuits, plaintiffs chose to sue the President exclusively in his official capacity, not in his individual capacity. Such an official-capacity only lawsuit is, in reality, a lawsuit against the government of the United States. In other words, in both of these lawsuits, the President is only a nominal defendant. Where, as here, the government is the actual defendant, Department of Justice attorneys act for the government-defendant. In these two lawsuits, President Trump’s personal attorneys cannot defend the President—for the simple reason that Donald J. Trump, the individual, is not being sued. It is that simple.

In the third lawsuit, plaintiffs initially sued the President exclusively in his official capacity, but later they amended their complaint to also sue the President in his individual capacity. Subsequently, plaintiffs sought to unilaterally and voluntarily dismiss their individual-capacity claim against the President. The President’s personal attorney objected to any such dismissal: he wanted his day in court.

Plaintiffs would much rather litigate against the DOJ—an organization which is wholly unconcerned with the President’s personal and political reputation—a reputation which takes a pounding each and every time the DOJ loses a motion, trial, or appeal even though President is not really the defendant and has no personal day-to-day control over the DOJ and the government-defendant’s legal strategy (as he would have if he were the actual defendant).

Seth Barrett Tillman, Lecturer
Maynooth University Department of Law, Ireland

Tillman, a U.S. national, has filed multiple amicus briefs in the course of the three Emoluments Clauses cases. 

Seth Barrett Tillman, Why the DOJ Acts for the Defendant in the Emoluments Clauses Cases, New Reform Club (Oct. 9, 2019, 4:36 PM), <https://reformclub.blogspot.com/2019/10/why-doj-acts-for-defendant-in.html>. 

Tuesday, September 24, 2019

Will Boris Johnson Play Hard Ball with the UK Supreme Court?

Parliament, in a purported statute, the Benn-Burt Bill, now the European Union (Withdrawal) (No. 2) Act 2019, imposed a statutory duty on the Prime Minister to seek a withdrawal agreement or an extension of Brexit from the EU. That bill passed both houses of Parliament. It received royal assent on September 9, 2019 in consequence of the Queen’s prorogation order which was also to go into effect on September 9, 2019. Why did the bill receive the royal assent on September 9, 2019? The traditional procedure (per Erskine May) is to grant royal assent in regard to all bills which have passed both houses prior to the prorogation’s taking effect.

Now the U.K. Supreme Court has said that the Prime Minister’s advice was illegal, and the Queen’s prorogation order was void. In consequence, Parliament is not in recess, and it will meet because the prorogation order was void. Perhaps it follows that if the Queen’s prorogation order was void, and because the royal assent on the Benn-Burt Bill was only granted in consequence of that void order, then just perhaps the royal assent in regard to the Benn-Burt Bill is equally void, and the Benn-Burt Bill remains a bill, and not a bona fide act of Parliament?

Will Boris Johnson play hard ball with the Supreme Court?


Seth Barrett Tillman, Will Boris Johnson Play Hard Ball with the UK Supreme Court?, New Reform Club (Sept. 24, 2019), <https://reformclub.blogspot.com/2019/09/will-boris-johnson-play-hard-ball-with.html>. 

Friday, September 13, 2019

Trump's Voters and Brexit's Voters

I wrote this in 2016 about Trump. It works equally well in regard to Brexit.

Trump is not my ideal candidate. I did not back him in the primaries—indeed, there were others who I would have preferred. I am not telling you to vote for him or not to do so. You don’t need to hear what I think on this question because in a democracy the operating theory is that validly-registered non-felon not-institutionally-committed adult citizens can make up their own minds and vote (or not) how they like. That said: I do not see much good flowing from calling candidates or their voters (politically) ignorant, and it seems to me that promoting the contrary view can do a lot more long-term damage to our polity and to Western democracy than anything Trump has said to date. [See Trump, Academia, and Hyperbole.] 

It is a question of your willingness to actually share your political fate with the “rider on the Clapham omnibus” or, to mix metaphors, the “first four hundred people in the Boston phone book.” [See Escalation.]

Seth Barrett Tillman, Trump’s Voters and Brexit’s Voters, New Reform Club (Sept. 13, 2019, 3:55 AM), <https://reformclub.blogspot.com/2019/09/trumps-voters-and-brexits-voters.html>. 

McCabe, Trump, and Frodo Baggins

If McCabe is indicted...we are very close to saying that Trump is a man more sinned against than sinning.
10:25 pm 12 Sep 2019·

Replying to
I am not sure you really want to use that turn of phrase. How many times has he committed adultery? How many times has he cove[t]ed his neighbour[]s wife? Coveted his neighbour[]s goods? How many times has he borne false witness?

Frodo Baggins convicted of trespass and trespass to chattel and terrorist destruction to property by prosecutors in Mordor courts. Sauron sues [in separate civil action] for return of ring ....

Seth Barrett Tillman @SethBTillman
In the related civil action, Sauron’s attorney (the Mouth of Sauron) puts forward character witnesses against F Baggins alleging (absent objection) that when a young adult, Mr F Baggins stole mushrooms from a stout yeoman farmer from the midlands.

Seth Barrett Tillman @SethBTillman
Further character witnesses assert that Frodo poorly treated: [1] his servant, eg, Smeagol in a confrontation with foreign terrorists in West Mordor, ultimately leading to Smeagol[]s death, & [2] migrant workers invited to the Shire by the legitimate political authorities (Sharkey etc).

Seth Barrett Tillman @SethBTillman
Frodo has yet to open his case. It is expected that he will not deny these facts, & will instead argue that the incidents involving mushrooms & migrants have nothing to do with the political conflict in the south. Smeagol’s death was an unfortunate suicide or casualty of war.

Seth Barrett Tillman @SethBTillman
No doubt the broadsheets will characterise theses defences as overbroad or heartless or un-Shire-like.

Seth Barrett Tillman, McCabe, Trump, and Frodo Baggins, New Reform Club (Sept. 13, 2019, 2:38 AM), <https://reformclub.blogspot.com/2019/09/mccabe-trump-and-frodo-baggins.html>. 

PS: Spelling words using British-English, as would have JRRT

Wednesday, September 11, 2019

A Hypothetical for Prime Minister Boris Johnson

You lost in the Scottish appellate court. But you have an appeal at hand—to the United Kingdom Supreme Court (“UKSC”). Let’s say you prevail before the UKSC, and not only prevail, but you win bigly! Imagine: the UKSC holds that the content of the PM’s advice to the Queen related to the prerogative of prorogation is a non-justiciable, political question. There are no legal standards for the courts to apply. Prorogation is entirely discretionary. Everything you did was legal, and everything you might do in the future in regard to prorogation would (by implication) be legal too.

If the UKSC reaches such a decision, then the question becomes: What (if anything) will you do to take advantage of it? Will you prorogue Parliament from October 14, 2019 when Parliament returns, until November 1, 2019—post-Brexit? If you do not do so, you risk the Brexit Party saying that you pre-emptively disarmed, that you voluntarily surrendered a lawful tool to implement the referendum, and, in fact, you are just another Tory wet in the mould of Theresa May.

If you are sincerely trying to implement the referendum result, then its voters will expect you to make use of every legal tool within your power. Anything less would demonstrate that you are less than fully committed to: the result they voted for in the 2016 referendum, and the result you claim to support.


Seth Barrett Tillman, A Hypothetical for Prime Minister Boris Johnson, New Reform Club (Sept. 11, 2019, 7:29 AM), <https://reformclub.blogspot.com/2019/09/a-hypothetical-for-prime-minister-boris.html>. 

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous AceNew Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next AceNew Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To PlayNew Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

Monday, September 09, 2019

Prime Minister Johnson’s Last & Most Dangerous Ace

5 PM British Summer Time / noon Eastern Daylight Time
Setting: A transatlantic telephone call between 10 Downing Street and the Oval Office. Let’s listen in …

Boris: Mr President, Donald, I am having a bit of a rough patch—this Brexit business—the crazies want my scalp. I need to ask a favour.

Trump: Boris, I want to help you. You are my friend. But I cannot do anything for you for friendship’s sake. That said—I am all for Brexit on October 31, 2019, if not before….

Boris: I know that Donald. You don’t have to explain.

Trump: Just a moment. I do have to explain. You have to expect that Clapper’s, Comey’s, and Brennan’s friends in the United States’ national security apparatus are recording everything you and I are saying. It will eventually come out—maybe tomorrow. So I might as well get my point of view across in the future record. We—the United States—pay for NATO. We subsidize the defense of every nation in NATO and in effect, every nation in the EU. Still, the EU raises tariff walls against our goods. This relationship is unfair to me, to my voters, and to the United States. In the past, we put up with it. We did so because Europe was getting on its feet after WWII, because Europe was under threat from domestic terrorism, and, above all, from Soviet communism—but those days are now long gone. The EU is just an anti-American cabal, and, for that reason and others, I want to facilitate the UK exiting. That’s why I am inclined to help you, and if our two countries’ interests are aligned, as I see our interests, I will help you. So tell me—what is it that you’d like me to do.

Boris: I am going to be forced by Parliament to ask the EU for an extension, and then to accept any extension that the EU might offer. But here a unanimity rule applies—every EU member state (other than the UK) must support giving the UK the extension. If one EU member holds out against granting an extension, then there is no properly authorized extension for the UK to accept. In those circumstances, I will be off the hook and free to negotiate a real deal with the EU, or, at least, free to exit the EU absent any deal.

For that reason, I would like the United States to explain to our NATO allies (e.g., Latvia, Estonia, Lithuania—who are also EU members) that if they vote in support of giving the UK any extension, then all U.S. troops will be pulled out of their countries. And in that situation, the U.S. will re-evaluate its continuing participation in Article V collective defense under NATO auspices.

If we go down this path, I do not think we should do it in secret. It will come out anyway.

Trump: That’s … That’s … Why the hell didn’t my advisors come up with that idea. What the hell do I pay those guys for anyway? Was this Dominic Cummings’ idea? I want that man in DC. Yuge!Yuuge!, simply Yuuuge! Latvia, Lithuania, and Estonia—Im gonna make them an offer, they cant refuse. 


Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous Ace, New Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next Ace, New Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To Play, New Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

Saturday, September 07, 2019

The Prime Minister’s Next Ace

The Benn-Burt Bill goes back to the Commons on Monday morning, where it is expected to be finalized and then receive royal assent—and so become a statute.

Can the Prime Minister (“PM”) stop that process? Yes, as a formal, legal matter nothing stops the PM from asking the Queen to prorogue Parliament on Monday morning. It could be a short prorogation—one day. That would kill the bill, even if it was on its way to receive royal assent. And if the Commons restarts the process by passing Benn-Burt-Bill-#2 the next day it sits—absent amendments making the bill palatable to the government—the PM can prorogue again, and again, and again.

Do I expect the PM to take this path? That depends how serious he is about winning the next election. The people opposed to Brexit will vote against him. He has lost them. As for the people who are for Brexit … he must convince them that he is fully behind Brexit on October 31, 2019. If the PM voluntarily passes up lawful means to stop the Benn-Burt Bill … then those pro-Brexit voters have no reason to vote for him and his party. They will flee to others: the Brexit Party. So, yes, I expect the PM is contemplating a Monday morning prorogation.

That’s a prediction—not advice.


Seth Barrett Tillman, The Prime Minister’s Next Ace, New Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>. 

See also: Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To PlayNew Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous AceNew Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

Friday, September 06, 2019

Seth Barrett Tillman, Trump Trolls the Entire World, New Reform Club (Sept. 6, 2019, 5:51 AM), <https://reformclub.blogspot.com/2019/09/seth-barrett-tillman-trump-trolls.html>. 

Thursday, September 05, 2019

Trump’s Good & Bad Luck

Blumenthal v. Trump started in the U.S. District Court for the District of Columbia (D.D.C.). It was heard by Judge Sullivan. Judge Sullivan has a good reputation as a straight shooter. He was appointed to the local or territorial courts of the District of Columbia by Republican (R) presidents (i.e., Reagan, and Bush I). Afterwards, he was appointed to the D.D.C. by a Democratic (D) president (i.e., Clinton). For the sake of argument, let’s simplify the situation and call him a D appointee. In Blumenthal v. Trump, at the motion to dismiss stage, Judge Sullivan ruled for the plaintiffs. But the Department of Justice (DOJ) sought an interlocutory appeal with the United States Court of Appeals for the D.C. Circuit.

The D.C. Circuit has 17 judges: 8 Ds and 9 Rs.* The panel that heard the DOJ’s motion for interlocutory review was composed of 3 Ds! What is the probability of that? 8/17 * 7/16 * 6/15 = 8%. That was, perhaps, Trump’s bad luck. But he prevailed anyway. And the case is now out of the hands of Judge Sullivan, and the D.C. Circuit will decide the case on the merits.

Here is what is interesting.

It appears that the original panel of 3 Ds, having determined that the court of appeals should hear the case as an interlocutory appeal, has also decided not to hear the appeal on the merits. So a new panel of 3 judges will be composed (at random) by the D.C. Circuit’s clerk’s office. I am not sure why the panel has decided not to retain the case on the merits going forward. But assuming a new panel will be composed: What is the probability that there will be either 2 Rs and 1 D, or 3 Rs on the panel? 54%. From Trump’s point of view, a majority of Rs on the panel is an improvement. And if the new panel were composed of D.C. Circuit judges exclusive of the members of the original panel, then the odds go up considerably above 54% for a panel composed either of 2 Rs and 1 D, or 3 Rs.**

What happens after the panel decides the merits? Then the non-prevailing party may apply for en banc review from the entire D.C. Circuit. Here the odds favor the plaintiffs. Why? The full court is composed of 9 Rs and 8 Ds, but that includes 6 judges with senior status. Senior judges do not participate in en banc review. The en banc court has 7 Ds and 4 Rs: a strong D majority. So anything Trump might gain from the next 3-judge panel, he might lose during en banc review … and then, perhaps, he might get it back again at the U.S. Supreme Court, which (as all know) is divided between 5 Rs and 4 Ds. But don’t tell Chief Justice Roberts—he won’t believe you!


* I am counting Judge Judith W. Rogers as a D appointee. She was appointed to the D.C. Circuit by President Clinton. That said, Judge Rogers was appointed to the local or territorial courts of the District of Columbia by President Reagan.

** The probability of a panel with 2 Ds and 1 R, or 3Ds is 45%. 

Seth Barrett Tillman, Trump’s Good & Bad Luck, New Reform Club (Sept. 5, 2019, 12:42 PM), <https://reformclub.blogspot.com/2019/09/trumps-good-bad-luck.html>. 

Wednesday, September 04, 2019

Boris Johnson Still Has An Ace Or Two To Play

There is some good reason to believe the Benn-Burt Bill will not be enactedat least not in its current form. One cannot be sureas the final decision will largely rest with Speaker Bercow. The Benn-Burt Bill, in certain situations, mandates that the PM seek a further extension of the Article 50 process for negotiating a withdrawal from the EU. Furthermore, in certain situations, the bill mandates that the PM agree to the extension offered by the EU. The bill ties the hands of the PM in regard to negotiations and, if there is no timely Brexit on October 31, 2019, the bill will also tie the PMs hands thereafter.

The issue is this. Generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. If the Benn-Burt Bill passes both houses, in theory, the PM could advise the Queen not to accede to the bill. The Queen acts on the advice of her ministersbut usually the ministers have put forward the bill or, at least, they have acquiesced to a private members bill. Here, where the House of Commons has seized the agenda paper and taken it out of the hands of the government, the government and House are not in alignment and the conventionthat the Queen acts on the advice of ministersis in tension with the historical norm that Queen accedes to all bills laid before her from Parliament. Thats one problem for the Benn-Burt Bill.

The bill has a second, and more significant problem.

As I stated: generally, for Parliament to enact a statute, all that must happen is that the bill be passed by both houses and, then, obtain the royal assent. There is an exception. Where a bill significantly weighs on the exercise of the reserved powers of the crownthe royal prerogativethe bill must have the Queens consent (which is distinguishable from the royal assent already discussed above). In other words, where a bill significantly burdens the exercise of what Hamilton called the residium of executive power, the bill must additionally have the support of a ministerand such support is usually signified in the third reading in the Commons. If the responsible minister does not support the bill, where the Queens consent is required, the bill (in normal times) diesjust as if Parliament had been dissolved or prorogued.

The Benn-Burt Bill limits executive discretion by the crowns ministers in mandating, in certain circumstances, that the Prime Minister agree to extensions of the Article 50 process, if such an extension is offered by the EU. Using Queens consent, as opposed to relying on the royal assent, keeps the actual Queen out of politicsand puts real responsibility for the Brexit end-game back where it belongs: with ministers on the floor of the Commons and accountable to the Commons.

Boris still has an ace or two to play.


See generally: [A] Robert Craig, Proponents of the new Bill to stop No Deal face a significant dilemma over Queen’s Consent, LSE/Brexit (Sept 2, 2019), <https://blogs.lse.ac.uk/brexit/2019/09/02/proponents-of-the-new-bill-to-stop-no-deal-face-a-significant-dilemma-over-queens-consent/>;
[C] The Benn-Burt Bill: Another Article 50 extension?, The Commons Library (Sept. 4, 2019), <https://commonslibrary.parliament.uk/brexit/negotiations/the-benn-burt-bill-another-article-50-extension/>.

Seth Barrett Tillman, Boris Johnson Still Has An Ace Or Two To Play, New Reform Club (Sept. 4, 2019, 8:37 AM), <https://reformclub.blogspot.com/2019/09/boris-johnson-still-has-ace-or-two-to.html>.

See also: Seth Barrett Tillman, The Prime Minister’s Next AceNew Reform Club (Sept. 7, 2019, 5:12 PM), <https://reformclub.blogspot.com/2019/09/the-prime-ministers-next-ace.html>.

See also: Seth Barrett Tillman, Prime Minister Johnson’s Last & Most Dangerous Ace, New Reform Club (Sept. 9, 2019, 9:19 AM), <https://reformclub.blogspot.com/2019/09/prime-minister-johnsons-last-most.html>.

Saturday, August 24, 2019

Of Knights and Nurses: Or, The Proper Care and Feeding of Questing Beasts (When There Are No More Dragons to Slay)

After many centuries of hopelessness and superstition, St. George ... appeared .... The first dragons upon whom he turned his lance were those of despotic kingship and religious intolerance. These battles won, he rested a time, until such questions as slavery, prison conditions, or the state of the poor, began to command his attention. [H]is lance was never still, prodding this way and that against the inert scaliness of privilege, vested interest, or patrician insolence. But, unlike St. George, [his successor] did not know when to retire. The more he succeeded, the more he became bewitched with the thought of a world free of dragons, and the less capable he became of ever returning to private life. He needed his dragons. He could only live by fighting [them]. As an ageing warrior, he grew breathless in his pursuit of smaller and smaller dragons -- for the big dragons were now harder to come by.
Kenneth Minogue, The Liberal Mind.

So that we might further illustrate this tale, let us now call St. George's successor Pellinore, the pitiable and ruined figure of the Arthurian legends who, having stilled his lance for a mere brief holiday from questing after his beast, in the end discovered he had fallen hopelessly in love with it. Let us remember his tragic tale, told by T.H. White. The scene begins just as the hunting party is returning to Sir Grummore's castle with the day's supper:

It was at this moment that King Pellinore reappeared. Even before he came into view they could hear him crashing in the undergrowth and calling out, "I say, I say! Come here at once! A most dreadful thing has happened!" ....

"What is it, Pellinore?" shouted Sir Ector.

"Oh, come quick!" cried the King, and, turning round distracted, he vanished again into the forest.

"Is he all right," inquired Sir Ector, "do you suppose?"

"Excitable character," said Sir Grummore. "Very."

"Better follow up and see what he's doin'."

The procession moved off sedately in King Pellinore's direction, following his erratic course by the fresh tracks in the snow.

The spectacle which they came across was one for which they were not prepared. In the middle of a dead gorse bush King Pellinore was sitting, with the tears streaming down his face. In his lap there was an enormous snake's head, which he was patting. At the other end of the snake's head there was a long, lean, yellow body with spots on it. At the end of the body there were some lion's legs which ended in the slots of a hart.

"There, there," the King was saying. "I did not mean to leave you altogether. It was only because I wanted to sleep in a feather bed, just for a bit. I was coming back, honestly I was. Oh please don't die, Beast, and leave me without any fewmets!" [Fewmets are animal droppings as identified by hunters. -tmk]

When he saw Sir Ector, the King took command of the situation. Desperation had given him authority.

"Now, then, Ector," he exclaimed. "Don't stand there like a ninny. Fetch that barrel of wine along at once."

They brought the barrel and poured out a generous tot for the Questing Beast.

"Poor creature," said King Pellinore indignantly. "It has pined away, positively pined away, just because there was nobody to take an interest in it. How I could have stayed all that while with Sir Grummore and never given my old Beast a thought I really don't know. Look at its ribs, I ask you. Like the hoops of a barrel. And lying out in the snow all by itself, almost without the will to live. Come on, Beast, you see if you can't get down another gulp of this. It will do you good. "Mollocking about in a feather bed," added the remorseful monarch, glaring at Sir Grummore, "like a—like a kidney!"

"But how did you—how did you find it?" faltered Sir Grummore.

"I happened on it. And small thanks to you. Running about like a lot of nincompoops and smacking each other with swords. I happened on it in this gorse bush here, with snow all over its poor back and tears in its eyes and nobody to care for it in the wide world. It's what comes of not leading a regular life. Before, it was all right. We got up at the same time, and quested for regular hours, and went to bed at half past ten. Now look at it. It has gone to pieces altogether, and it will be your fault if it dies. You and your bed."

"But, Pellinore!" said Sir Grummore....

"Shut your mouth," replied the King at once. "Don't stand there bleating like a fool, man. Do something. Fetch another pole so that we can carry old Glatisant home. Now, then, Ector, haven't you got any sense? We must just carry him home and put him in front of the kitchen fire. Send somebody on to make some bread and milk. And you, Twyti, or whatever you choose to call yourself, stop fiddling with that trumpet of yours and run ahead to get some blankets warmed.

"When we get home," concluded King Pellinore, "the first thing will be to give it a nourishing meal, and then, if it is all right in the morning, I will give it a couple of hours' start and then hey-ho for the old life once again. What about that, Glatisant, hey? You'll tak' the high road and I'll tak' the low road, what? Come along, Robin Hood, or whoever you are—you may think I don't know, but I do—stop leaning on your bow with that look of negligent woodcraft. Pull yourself together, man, and get that muscle-bound sergeant to help you carry her. Now then, lift her easy. Come along, you chuckle-heads, and mind you don't trip. Feather beds and quarry, indeed; a lot of childish nonsense. Go on, advance, proceed, step forward, march! Feather brains, I call it, that's what I do.

"And as for you, Grummore," added the King, even after he had concluded, "you can just roll yourself up in your bed and stifle in it."


I draw no further analogies. If this story calls to the reader's mind any questing beasts whose pursuers are also their protectors, any dragons who appear subject to a policy of catch and release, any hunters who fuss and fawn unnaturally over their prey, then let the reader evaluate for himself whether these figures are heroic, or tragic, or something else.

Friday, August 23, 2019

Part 3, Conlawprof and Climate Change

Professor CCC wrote:

Indeed, when observed phenomena contradict what a proposed model predicts, the standard practice is to say the model and/or its predictions have been falsified. Popper. [quoting Tillman]

Oh, piffle. “Not perfectly accurate” is not the same as “contradict.” The models for the first atomic bomb didn’t get the yield right—I forget whether they over predicted or under predicted—but the only model that was contradicted was Enrico Fermi’s, who predicted that the blast would ignite all the hydrogen in the Earth’s crust and thus blow us all to smithereens. That one was falsified. The others weren’t.

We would not govern our private affairs by models that we know don’t work [quoting Tillman]

Again, “don’t work” isn’t the same as “aren’t precisely accurate.” For years I governed my affairs with a watch that ran fast. I take my blood pressure with a monitor that is consistently high, but I know that and correct for it.

—it seems (to me at least) to govern our public affairs on such a basis is wrong. [quoting Tillman]

When in the summers of the early 1960 I helped track satellites for NASA we knew our models were incomplete, and the satellites were never precisely where they were predicted to be, but it was good enough for government work and we were confident they weren’t going to run into any of the manned launches.

We know (relativistic effects; the earth rotates fastest at the equator) that people in northern latitudes age faster than people farther south. But nobody ever bothers taking that into account.

Seth wrote:

I started my contribution to this thread with:

So does that mean that the climate-change-related laboratory/experimental models have worked—that they have accurately predicted (within reasonable bounds) future climate change—e.g., the path of mean surface temperature globally? [bold added]

I have consistently used such cautious language.

Still, Professor CCC responds with:

Oh, piffle. ‘Not perfectly accurate’ is not the same as ‘contradict.’

He even puts both “contradict” and “perfectly accurate” in quotation marks. I used the former language (“contradict”), but not the latter (“perfectly accurate”). Nor do I use any language like the latter language (“perfectly accurate”) when discussing prediction, confirmation, validation, or falsification.

Then Professor CCC tries to make an analogy between global-warming predictions and yield-predictions involving the Manhattan project. That analogy fails—miserably. The Manhattan project was new science conducted under war-time conditions of secrecy. Theories involving global warming are now old or, at least, established science—we are on IPCC5—“5” as in the fifth report. There is no public embargo on data or research or public discussion of ideas/methods/conclusions/etc—or, at least, there aren’t supposed to be any such limitations. Finally, yield predictions involved a closed man-made system with easily measurable inputs and reasonably easy to measure outputs. By contrast, purported global warming claims and purported claims involving its anthropogenic components involve a system not under human control, involving a far wider range of inputs [including some of which may be unknown] and outputs—which are more difficult to measure—much less to predict. Those making claims involving such a complex, open system have every good reason to be cautious—all the more so, those who would govern public policy on such science. All that might explain (or excuse) why the various global warming models have such poor predictive capacity—but that is simply a way of saying that their predictive capacity remains poor. As explained in an article in Popular Mechanics, which surveyed the 5 IPCC reports: “The 15 climate models the IPCC used for the AR5 projected widely divergent cumulative carbon-dioxide emissions from 2012 to 2100, ranging from 140 to 1910 gigatonnes.” <https://www.popularmechanics.com/science/environment/a9460/a-beginners-guide-to-the-ipcc-climate-change-reports-15991849/#ixzz2h0UMob4E> These models cannot all be correct.

As for current events, yesterday, it was reported that the British Columbia Supreme Court (I think that’s the trial court), dismissed Michael Mann’s defamation case against Professor Ball. Mann will owe Ball court costs (following the English rule which prevails in Canadian courts) unless the decision is reversed.

Happy days,


Seth Barrett Tillman, Part 3, Conlawprof and Climate Change, New Reform Club (Aug. 23, 2019, 7:05 AM), <https://reformclub.blogspot.com/2019/08/part-3-conlawprof-and-climate-change.html>. 

Seth Barrett Tillman, Part 2, Conlawprof and Climate ChangeNew Reform Club (Aug. 22, 2019, 8:35 AM), <https://reformclub.blogspot.com/2019/08/part-2-conlawprof-and-climate-change.html>. 

Here is part 1: Seth Barrett Tillman, Conlawprof and Climate ChangeNew Reform Club (Aug. 21, 2019, 12:44 PM), <https://reformclub.blogspot.com/2019/08/conlawprof-and-climate-change.html>. 

Thursday, August 22, 2019

Part 2, Conlawprof and Climate Change

From: Professor BBB:

I don’t want to belabor this. Perhaps “expected” would have been a better choice than “predicted,” albeit neither term appears in the IPCC report. The point is that the 2017 observations exceeded the trend. The trend points to what might be predicted.

More important, the macro-effects are much, much more important than parsing micro-precision.

---- ---- ----

From: Seth

No one wants to belabor anything. But only you can decide what you reply to, and how you do so (“Your note reveals a common misunderstanding of the predictive models ....”).

You originally wrote “predicted”—even to the extent of interjecting that word into a quotation from a report. Now you are saying “exceeded the trend.” But the report did not say that either ... it merely said one dataset (2017) exceeded a prior 30-year “average.” I see nothing about “trend.” In a climate stable environment, as the alternative or null hypothesis, there was a 50% likelihood that the 2017 dataset would exceed the prior 30-year average. So that fact is hardly all that interesting. Right?

I think my initial comment about climate change models lacking robustness—including, e.g., the ability to reasonably accurately predict future observations—stands unrebutted. This is particularly true in light of Professor BBB’s original observation: “The models and reports also tend to under predict global temperatures.” Models that systematically over predict the amount of observed global warming (if any) & models that systematically under predict the amount of observed global warming (if any)—are equally models that don’t work well. Indeed, when observed phenomena contradict what a proposed model predicts, the standard practice is to say the model and/or its predictions have been falsified. See Popper. We would not govern our private affairs by models that we know don’t work—it seems (to me at least) to govern our public affairs on such a basis is wrong.


Seth Barrett Tillman, Part 2, Conlawprof and Climate Change, New Reform Club (Aug. 22, 2019, 8:35 AM), <https://reformclub.blogspot.com/2019/08/part-2-conlawprof-and-climate-change.html>. 

Here is part 3: Seth Barrett Tillman, Part 3, Conlawprof and Climate ChangeNew Reform Club (Aug. 23, 2019, 7:05 AM), <https://reformclub.blogspot.com/2019/08/part-3-conlawprof-and-climate-change.html>. 

Here is part 1: Seth Barrett Tillman, Conlawprof and Climate ChangeNew Reform Club (Aug. 21, 2019, 12:44 PM), <https://reformclub.blogspot.com/2019/08/conlawprof-and-climate-change.html>.