Everything you say can and will be used against you.

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

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

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>. 




Wednesday, August 21, 2019

Conlawprof and Climate Change



IPCC5 (follow up)

I usually respond more promptly, but for reasons I make clear below, there were prudential reasons for a short delay.

On August 17, 2019, on Conlawprof, Professor AAA wrote:

So, no, not all rivals are equal. But you do still have to have a framework to believe anything. There are no facts—or at least, you can do nothing with them—without first having a framework. And because rival frames CAN be accredited (roughly equal), unlike the climate change example, much of what you find in ordinary political disputes reduces itself simply to reasonable disagreement. That’s why we settle them with elections. These disagreements are not over “facts,” but rather with how to perceive them (what to make of their significance). [emphasis added by Tillman]

On August 18, 2019, on Conlawprof, I wrote:

[Professor AAA] wrote: “unlike the climate change example”.

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? Isn’t the consensus that they are not quite spot on? Maybe off by an order of magnitude or more?

I did not comment whether or not global warming is real, ongoing, and/or substantial. I did not comment on how much of it (if any) is driven by human activity. And I did not comment on what consequences (if any) are most likely to flow from it, and how dire (or, possibly, how favourable) those consequences might be. My comments went exclusively to the reliability of climate models and their ability to predict observed outcomes accurately.

On August 18, 2019, on Conlawprof, Professor BBB wrote:

Your note reveals a common misunderstanding of the predictive models. First, the models tend to under-predict. That is, the observed macro-effects exceed what the models predict. The models and reports also tend to under predict global temperatures. (The IPCC noted that “the [observed] level of warming in 2017 was 0.15°C–0.35°C higher than [predicted] average warming over the 30-year period 1988–2017.”) [citing: <https://www.ipcc.ch/sr15/chapter/chapter-1/ (accessed August 18, 2019).>]

I note that Professor BBB adds the word “predicted”. It is not in the original quotation. I checked the original quotation in IPCC5, and it struck me—generalist though I am—that he had inadvertently inverted the meaning of the quoted material. But not being expert, and realizing that different minds might reasonably disagree about such things, I promptly wrote my friends at the Intergovernmental Panel on Climate Change (IPCC) Secretariat. I asked:

Chapter 1 has the following statement: “Likewise, given that the level of warming is currently increasing at 0.3°C–0.7°C per 30 years (likely range quoted in Kirtman et al., 2013 and supported by Folland et al., 2018), the level of warming in 2017 was 0.15°C–0.35°C higher than average warming over the 30-year period 1988–2017.” Could you clarify this—is that saying 2017 temperatures were higher than the observed average warming from 1988-2017, or that 2017 temperatures were higher than the predicted average warming from 1988-2017?

A few hours ago, I received the following response:

Dear Mr Tillman,
Thank you for your interest in the work of the IPCC. The sentence refers to warmer than observed average warming.
Best wishes,
Mxolisi Shongwe
Intergovernmental Panel on Climate Change (IPCC) Secretariat
World Meteorological Organization
7 bis, Avenue de la Paix
P.O. Box 2300
1211 Geneva 2
SWITZERLAND

In other words, the quoted passage from IPCC5 had nothing to do with predictive models. It was a mere comparison between two data sets: a 2017 dataset and a pre-2017 dataset. In order to make the quotation relevant to my point, Professor BBB manipulated the quotation by adding the language in brackets. In doing so, he mistakenly departed, dare I say it, from the report’s original intent, and in my (generalist’s) view, from the report’s original public meaning.

Anyone can make a mistake. I am hopeful that Professor BBB will come to see the issue my way in whole, or at least, in part, but that’s not why I have taken the time to write this response after several days’ passage. Instead, I address the corps of people on this listserv who reading Professor BBB’s comment thought it made good sense. If you thought it made sense, why not consider what other things you might also believe in error relating to this and other issues? See generally Seth Barrett Tillman, Blushing Our Way Past Historical Fact And Fiction, 114 Penn St. L. Rev. 391, 409 (2009),

It is just a thought.

Seth

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

Here is part 2: 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 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>. 



Sunday, August 18, 2019

Books by Barrett Tillman


The Dauntless Dive Bomber of WW II (1976), Naval Institute Press, Annapolis, MD. 

Hellcat: the F6F in WW II (1979), Naval Institute Press, Annapolis, MD. 


Corsair: the F4U in WW II & Korea (1979), Naval Institute Press, Annapolis, MD. 


TBF-TBM Avenger at War (1979)Ian Allan Ltd. Re-released by USNI, 1991. 


MiG Master: Story of the F-8 Crusader (1980)Nautical & Aviation, Baltimore. 2nd edition by USNI, 1990. 


Wildcat: the F4F in WW II (1983)Nautical & Aviation, Baltimore. 2nd edition by USNI, 1990. 


History of U.S. Naval Air Power (1985)Aerospace Publishers, UK (R.L. Lawson, ed.) Out of print. 


Sundowners: VF-11 in WW II (1993)Phalanx Publishing, St. Paul, MN. 


Carrier Battle in the Philippine Sea (1994)Phalanx Publishing, St. Paul, MN. 


Wildcat Aces of WW 2 (1995)Osprey Publishing, UK. 


Hellcat Aces of WW 2 (1996)Osprey Publishing, UK. 


Carrier Air War in Original WW II Color (1996)Motorbooks, Osceola, WI. (With R. L. Lawson). 


Vought F4U Corsair: Warbird Tech Series, Vol. 4 (1996)Specialty Press, North Branch, MN. 


U.S. Navy Fighter Squadrons in WW II (1997)Specialty Press, North Branch, MN. 


SB2C Helldiver Units of WW 2 (1997)Osprey Publishing, UK.  


SBD Dauntless Units of WW 2 (1998)Osprey Publishing, UK.  


TBF-TBM Avenger Units of WW 2 (1999)Osprey Publishing, UK. 


TBD Devastator Units of the US Navy (2000)Osprey Publishing, UK. 


The Complete Guide to AR-15 Accuracy (2000), Precision Shooting, Manchester CT (with Derrick Martin). 

Above and Beyond: the Aviation Medals of Honor (2002), Smithsonian Press, D.C. 

The Alpha-Bravo-Delta Guide to the U. S. Air Force (2003), Penguin, NY. 

Brassey's D-Day Encyclopedia (2004), Brassey's, Inc., Dulles, VA. 

Clash of the Carriers: The True Story of the Marianas Turkey Shoot (2005), Caliber, NY. 

What We Need: Extravagance and Shortages in America's Military (2007), Zenith, MN. 

Whirlwind: The Air War Against Japan 1942-1945. (2010)  Simon & Schuster, NY. 

NASA's Contributions to Aeronautics, Vol. 2.  "Coping with Lightning" (2010) (With John L. Tillman).  NASA, Washington, D.C. 

Enterprise: America's Fightingest Ship and the Men Who Helped Win World War II. (2012) Simon & Schuster, NY. 

Forgotten Fifteenth: The Daring Airmen Who Crippled Hitler's War Machine. Regnery History, 2014. 

U.S. Marine Corps Fighter Squadrons of World War II. Osprey, 2014. 

Seth Barrett Tillman, Books by Barrett Tillman, New Reform Club (Aug. 18, 2019,  1:28 PM), <https://reformclub.blogspot.com/2019/08/books-by-barrett-tillman.html>; 


Irishman Attends Conservative Conference in the United States: Newsworthy?



Letter to the Editor
<lettersed@irishtimes.com>

August 18, 2019

Re: Kathy Sheridan, Op. Ed., ‘Young FG president should follow the money’ The Irish Times, Aug. 14, 2019, page 12, <https://tinyurl.com/y4ekfh9a>

Kathy Sheridan’s advice is “just shut up and listen.” But that is what Killian Foley-Walsh did: he attended a conservative conference in the United States to listen, not to speak. He is now being criticised by Sheridan (and others) for doing precisely what she advises. 

The reality is that Sheridan (and others) do not want Foley-Walsh to listen; they want him (and the other politically incorrect) to disappear.

Seth

Seth Barrett Tillman, Irishman Attends Conservative Conference in the United States: Newsworthy?, New Reform Club (Aug. 18, 2019, 8:32 AM), <https://reformclub.blogspot.com/2019/08/irishman-attends-conservative.html>; 


Seth Barrett Tillman, Letter to the Editor, ‘Young FG “just shup up and listen”?’ The Irish Times, Aug. 23, 2019, page 17, <https://www.irishtimes.com/opinion/letters/young-fg-just-shup-up-and-listen-1.3994212>. 



Thursday, August 15, 2019

When will the United States Court of Appeals for the Second Circuit Decide CREW v. Trump & Why has it Already Taken Over 9 Months?




CREW v. Trump (2d Cir) is one of three so-called Emoluments Clauses cases brought against the President. This suit (like the other two actions) poses a number of challenging legal issues for the courts to adjudicate. Judge Daniels, the federal trial court judge who first heard CREW, dismissed the plaintiffs’ action for lack of standing—for that reason, he reached no other legal issues. Plaintiffs appealed. The appeal was fully briefed, and oral argument was held on October 30, 2018. The median time between argument and a decision in a Second Circuit civil case is 7/10ths of a month. Nevertheless, it has been over 9 months, but no decision from the Second Circuit has emerged. Some (count me among them) are puzzled (if not astounded) by the length of time that has already elapsed, and we wonder when the Second Circuit will announce a decision.

I am going to posit a theory why this case has taken as long as it has, and why it might take yet a significant amount of more time. What I put forward here is just a theory.

I think the panel is divided—and not a mere 2-to-1 division between a majority and dissent. Instead, I think there is one majority in regard to standing, in which the panel divides 2-to-1, and finds for the plaintiffs, and another majority in regard to the merits, in which the panel again divides 2-to-1, but here it will find for the defendant. Thus the court will ultimately dismiss, but the reasoning and precedential value of that reasoning will be murky. (Indeed, one or both of the two separate majorities may be divided in regard to their reasoning, although voting the same way on that particular issue.) Such divisions in a panel decision are rare. Given that the Second Circuit has a long-standing and unusual policy of farming out all panel opinions to the other members of the entire en banc court for comments, an opinion divided along the lines set out above might take more time to go through full internal review prior to publication than the run-of-the-mill Second Circuit opinion, even when compared to other opinions with strong dissents. Such a fractured appellate panel opinion (akin to some of the Supreme Court’s church-state rulings) might also be somewhat more lengthy than is customary, and this too will slow down internal review prior to publication.

We have all waited over 9 months—we might have to wait some significant more time still.

Seth

Seth Barrett Tillman, When will the United States Court of Appeals for the Second Circuit Decide CREW v. Trump & Why has it Already Taken Over 9 Months?, New Reform Club (Aug. 15, 2019, 11:01 AM), <https://reformclub.blogspot.com/2019/08/when-will-united-states-court-of.html>. 



Friday, August 09, 2019

Letter to The Irish Examiner on Young America’s Foundation



Letter to the Editor
letters@examiner.ie,
digitaldesk@examiner.ie



Aug. 8, 2019



Re: ‘Rise of the right built on hate and fear’ Irish Examiner, Aug. 7, 2019, 12:00 AM, <https://www.irishexaminer.com/breakingnews/views/ourview/rise-of-the-right-built-on-hate-and-fear-942195.html>.

Your author attempted to link attending a Young America’s Foundation conference to recent shootings in the United States—and asserted that there was a “commonality” rooted in “growing intolerance morphing into hate.” This is not only unfair, but quite untrue. YAF and its sister organization with a similar name, Young Americans for Freedom, go back to 1960, with the publication of the famous Sharon Statement.

YAF had and has three core missions; they relate to supporting and educating the American public—particularly on college campuses—in regard to: [1] individual liberty / limited government; [2] the free-market economy; and [3] a strong national defence / anti-communism. These are mainstream American political positions, and the people who have and continue to advocate for these views have not engaged in anything but normal democratic politics.

For a good history of YAF and other similar American right-of-centre organisations, which like so much of American conservatism is misunderstood in Ireland and in wider Europe, see George H. Nash, The Conservative Intellectual Movement in American since 1945 (1976). It is a short book, and so very helpful for the beginner.

Seth Barrett Tillman

YAF website link: <https://www.yaf.org/about/>; and,

Seth Barrett Tillman, Letter to The Irish Examiner on Young America’s Foundation, New Reform Club (Aug 9, 2019, 10:22 AM), <https://reformclub.blogspot.com/2019/08/letter-to-irish-examiner-on-young.html>. 



Letter to The Irish Times on Young America’s Foundation



Letter to the Editor
<lettersed@irishtimes.com>


August 9, 2019

Re: Jennifer Bray, ‘Young Fine Gael president criticised for attending conservative conference in US’ The Irish Times, Aug. 8, 2019, 2:18 AM <https://www.irishtimes.com/news/politics/young-fine-gael-president-criticised-for-attending-conservative-conference-in-us-1.3979996>; and,

Re: Jennifer Bray, ‘Split in Young Fine Gael after president attends right-wing US conference’ The Irish Times, Aug. 8, 2019, 12:13 AM <https://www.irishtimes.com/news/politics/split-in-young-fine-gael-after-president-attends-right-wing-us-conference-1.3980549>.

Your reporter consistently characterizes Young America’s Foundation as “right-wing.” This is not only unfair, but quite untrue. YAF and its sister organization with a similar name, Young Americans for Freedom, go back to 1960, with the publication of the famous Sharon Statement.

YAF had and has three core missions; they relate to supporting and educating the American public—particularly on college campuses—in regard to: [1] individual liberty / limited government; [2] the free-market economy; and, [3] a strong national defence / anti-communism. These are mainstream American political positions, and the people who have and continue to advocate for these views have not engaged in anything but normal democratic politics.

For a good history of YAF and other similar American right-of-centre organisations, which like so much of American conservatism is misunderstood in Ireland and in wider Europe, see George H. Nash, The Conservative Intellectual Movement in American since 1945 (1976). It is a short book, and so very helpful for the beginner.

Seth Barrett Tillman

YAF website link: <https://www.yaf.org/about/>; and,

Seth Barrett Tillman, Letter to The Irish Times on Young Americas Foundation, New Reform Club (Aug. 9, 2019, 10:17 AM), <https://reformclub.blogspot.com/2019/08/letter-to-irish-times-on-young-americas.html>. 

Thursday, August 08, 2019

The Divine Right of Judges

Federal courts get all the attention in the press. But over 39 million people look to the courts of the state of California as their primary source of justice under the law. The California court system is the largest in the nation. You might be interested to know how the jurists and practitioners approach the law within that system.

Roughly half of the litigants in the trial court come away feeling justice has not been done. Their remedy is to appeal the decision of the trial court in the Court of Appeal. So how does the Court of Appeal determine whether the trial court has given that person justice under the law?

The excerpt below comes from the Rutter Guide, probably the most prominent and authoritative practice guide used in California, and routinely cited in court opinions. This excerpt discusses the most "relevant factors" that appellate courts evaluate when reviewing decisions of the trial courts:
a. [1:50] Did the “right party” win? This fundamental question should be asked in every case. Whether the “right party” won requires an objective factual inquiry, and is one of the most difficult threshold issues trial counsel must confront (especially since, as a practical matter, trial counsel's judgment may be less than objective after years of “living with” the case).

If an independent and objective observer, after reviewing all the facts, is likely to conclude that the “right party” won at trial, the judgment will probably be affirmed. If the appellate court judges feel comfortable with the result, the odds are that any error at trial will be deemed “harmless,” because there was no “miscarriage of justice” (¶8:285 ff.).

Jon B. Eisenberg, Cal. Prac. Guide Civ. App. & Writs (The Rutter Group 2017) ¶ 1:50.

Let us recapitulate so far:
  1. The law will decide each case.
  2. If you lose your case and you believe it is against the law, you may appeal.
  3. The first step of the appeal is to determine whether the decision was against the law. If it is against the law, we go to the next step. 
  4. The next step of the appeal is to determine whether we like you. Objectively! Objectively! If we don't like you -- objectively! -- then you lose, the law be hanged.

I attended a talk years ago given by a justice of the California Court of Appeal who expressed, with approval, the same approach articulated in the excerpt above. Addressing a roomful of appellate attorneys, this justice said, in paraphrase, that in many cases, putting legal arguments aside, you know your client shouldn't win.

The principle of the rule of law is that it is the law that tells us who the "right party" is, that it is only the law that tells us if a client should or should not win. Is this the principle being expressed in the excerpt from a prominent and authoritative practice guide written for the largest court system in the United States, and in the above referenced remarks of a prominent appellate justice in that system?

The Myth of the Rule of Law is a 1995 law review article written by John Hasnas,  a visiting professor of law at Georgetown University Law Center and a professor of business at Georgetown’s McDonough School of Business. In that article, Prof. Hasnas wrote -- cynically, I once thought -- that "the law is made up of contradictory rules that can generate any conclusion, what conclusion one finds will be determined by what conclusion one looks for." He also wrote -- hyperbolically, I had hoped -- that "the law is always open to interpretation and there is no such thing as a normatively neutral interpretation." And he concluded -- merely theorizing, I prayed -- that:
The observation that the legal system is highly stable is, of course,correct, but it is a mistake to believe that this is because the law is determinate. The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions. Consider who the judges are in this country. Typically, they are people from a solid middle- to upper-class background who performed well at an appropriately prestigious undergraduate institution; demonstrated the ability to engage in the type of analytical reasoning that is measured by the standardized Law School Admissions Test; passed through the crucible of law school, complete with its methodological and political indoctrination; and went on to high-profile careers as attorneys, probably with a prestigious Wall Street-style law firm. To have been appointed to the bench, it is virtually certain that they were both politically moderate and well-connected, and, until recently, white males of the correct ethnic and religious pedigree. It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values. Given this, it can hardly be surprising that there will be a high degree of agreement among judges as to how cases ought to be decided. But this agreement is due to the common set of normative presuppositions the judges share, not some immanent, objective meaning that exists within the rules of law.
Long before we suspected a "deep state" in our executive bureaucracy, there has been a "deep state" of legal elites in our judiciary all along. 

How can I resist Prof. Hasnas's conclusion any longer?

The Rule of Law is a "myth," then, conjured and sustained for the same reasons as the Divine Right of Kings: "to enlist the emotions of the public in support of society's political power structure." The Rule of Law is merely its successor, a modern upgrade of the earlier myth. "The myth of impersonal government is simply the most effective means of social control available to the state."

But recall that, under the Divine Right of Kings, the King is the head; he is supreme; he is above every thing, and there is no power by which he can be tried. If the Rule of Law be a myth, and no different from the Divine Right of Kings, then we have merely replaced one King with a thousand, finding our royalty not in Windsor but in every executive office and every judge's chambers.

But the logic is no different than as Samuel Johnson had found it: "Therefore, it is, Sir, that we hold the King can do no wrong; that whatever may happen to be wrong in government may not be above our reach, by being ascribed to Majesty. Redress is always to be had against oppression, by punishing the immediate agents. The King, though he should command, cannot force a Judge to condemn a man unjustly; therefore it is the Judge whom we prosecute and punish."

Making the necessary adjustments, under the Rule of Law we are to have our relief, not in law, which we have established is inaccessible to us, nor against Judges, which we have established are supreme and beyond our power to try, but "by punishing the immediate agents." This means, I take it, that we are to take up our writs against... the clerks of the court?

I fail to see we have improved matters.

Monday, August 05, 2019

Letter to The Irish Independent on Young America’s Foundation



Letter to the Editor
The Irish Independent
<independent.letters@independent.ie>


Aug. 5, 2019


Re: Hugh O’Connell, ‘Anger as Fine Gael Youth leader attends US right-wing conference’ The Irish Independent, Aug. 5, 2019, 2:30 AM, <https://www.independent.ie/irish-news/politics/anger-as-fine-gael-youth-leader-attends-us-rightwing-conference-38374027.html>.                                                  

Hugh O’Connell tells the reader that the “mission” of Young America’s Foundation (“YAF”) is “to groom future conservative leaders.” He cites The New York Times. But there is no good reason to look to the NYT for a statement of YAF’s mission—any more than one would inquire from YAF as to the Times’ mission. YAF’s mission statement is right on its website, and has its roots in the famous Sharon Statement from 1960.

Contrary to what Hugh O’Connell and his sources at the Times believe, YAF has little to do with abortion or same-sex marriage—issues which, in the United States, are generally left to the states. Historically, YAF had three core missions; they related to supporting and educating the American public—particularly on college campuses—in regard to: [1] individual liberty / limited government; [2] the free-market economy; and [3] a strong national defence / anti-communism.

For a good history of YAF and other similar American right-of-centre organisations, which like so much of American conservatism is misunderstood in Ireland and in wider Europe, see George H. Nash, The Conservative Intellectual Movement in American since 1945 (1976). It is a short book, and so very helpful for the beginner.

Seth Barrett Tillman

YAF website link: <https://www.yaf.org/about/>;

Seth Barrett Tillman, Letter to The Irish Independent on Young Americas Foundation, New Reform Club (Aug. 5, 2019, 6:06 AM), <https://reformclub.blogspot.com/2019/08/letter-to-irish-independent-on-young.html>. 

Sunday, August 04, 2019

Social Science Research Network: Rankings of IRISH (including Northern Ireland) law faculties


Social Science Research Network: Rankings of IRISH (including Northern Ireland) law faculties








Seth Barrett Tillman, Social Science Research Network: Rankings of IRISH (including Northern Ireland) law facultiesNew Reform Club (Aug. 4, 2019, 5:31 AM), <https://reformclub.blogspot.com/2019/08/social-science-research-network.html>.