Mensch tracht, un Gott lacht

Wednesday, July 31, 2019

What Is Equitable Jurisdiction? What Is Equitable Relief? Old Questions Answered!

Please see:

Josh Blackman & Seth Barrett Tillman, What is the Plaintiffs’ Cause of Action in the Wall Litigation?Reason—Volokh Conspiracy (July 31, 2019, 10:46 AM), <>.


Seth Barrett Tillman, What Is Equitable Jurisdiction? What Is Equitable Relief? Old Questions Answered!, New Reform Club (July 31, 2019, 11:39 AM), <>. 

Tuesday, July 30, 2019

Teaching the Queen’s English

Letter to the Editor
The Spectator 
22 Old Queen Street
London, SW1H 9HP
England (UK)

Re: James Forsyth, ‘The Boris Show’ The Spectator, 27 July 2019, pp.10 –11

Your columnist wrote: “There are plenty of Boris fans and plenty of enemies, but even the latter see an upside in him becoming Prime Minister.” becoming Prime Minister is a gerund; therefore, the pronoun preceding it should be in the possessive case: his, not him. I struggle to teach my students this. Please, don’t make my life more difficult. 


Seth Barrett Tillman, Teaching the Queens English, New Reform Club (July 30, 2019, 11:45 AM), <>. 

Saturday, July 27, 2019

“I Am Important,” She Said Sadly: The Unexpectedly Depressing State of Being Liberated

“A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects"
--Robert Heinlein, Time Enough for Love
The modern era has been marked by specialization. Workers have been drained from the broadness of the countryside to the narrowness of the cities, where they found factories offering long hours doing highly specific tasks. In the process, the rest of human life, too, became more specific. No one accustomed to agrarian life would have suggested that women -- sharing many of the duties on the family farms -- were dependent upon men any more than the reverse was likewise true. 

But the specialization of urban life took its toll. Economic viability now depends on one’s ability to devote nearly every waking hour to a specific skill. As early as the 18th century Adam Smith noticed that city workers were being deprived of “subject(s) for thought and speculation," and in the process were losing the “power of judgment, even as regards ordinary matters.” If there is not an app to attend to each of life's particular labors, in time perhaps there will be a government bureau. 

On the other side of the equation, the value of the generalist -- almost universally, the woman -- decreased. As G.K. Chesterton noted, “Women were not kept at home in order to keep them narrow; on the contrary, they were kept at home in order to keep them broad. The world outside the home was one mass of narrowness, a maze of cramped paths, a madhouse of monomaniacs.” 

Even human sexuality has been specialized, with the gratification and procreative functions becoming separated in the public mind even by the early 20th century (and probably much sooner than that). In the first part of that century, every Christian denomination still officially taught against contraception. By the 1930s, however, the Anglicans first started to allow it, and even the Washington Post expressed concern that this would lead to the collapse of traditional sexual morality. 

Marriage, too, became specialized -- so specialized, in fact, that not just each couple but the couple’s individual constituents could determine its significance. And, if that determination should change, either spouse was empowered to end the marriage unilaterally, regardless of the impact to the community or the children of the marriage. There were 639,000 divorces in California in 1969, the year of the first No-Fault law; there were 1,036,000 by 1975. 

According to developmental psychologist Hilary Towers, the upshot of this policy, now near-universal in the Western world, is that “[a]n unfaithful spouse can single-handedly—and with the court’s stamp of approval and aid—end a marriage and swiftly “move on” with the adultery partner and half or more of all the family income and assets—pulling the children along with him or her (at least part-time).” 

This liberation was assisted by the 1972 Supreme Court decision in Baird v. Eisenstadt, expanding the right to legalized birth control, first announced in the watershed case of Griswold v. Connecticut applicable to married citizens, to all citizens irrespective of marital status. 

Eminent sociologist Pitirim Sorokin, in a book called The American Sex Revolution, had predicted in 1956 that “sex freedom” and “sex anarchy” would lead to critical social ills, including rising rates of divorce and illegitimacy, abandoned and neglected children, a coarsening of the arts high and low, and much more. “Sex obsession”, argued Sorokin, now “bombards us continuously, from cradle to grave, from all points of our living space, at almost every step of our activity, feeling, and thinking.”

As Pope Pius XII would put it two years later, "History is not mistaken when it indicates the alteration of the laws of marriage and procreation as the primary cause of the decadence of peoples.” 

Another Harvard sociologist, Carle Zimmerman, would likewise write around the time in Family and Civilization that modern contraception would lead to “the atomistic family type,” including rising divorce rates, increasing promiscuity, juvenile delinquency, and neglect of children and other family responsibilities. “The United States”, Zimmerman concluded, “will reach the final phases of a great family crisis between now [1947] and the last of this century”—one “identical in nature to the two previous crises in Greece and Rome.” 

The cranks have been proven right. Liberation has been depressing. 

In recent decades, “women’s happiness has fallen both absolutely and relative to men’s in a pervasive way among groups, such that women no longer report being happier than men and, in many instances, now report happiness that is below that of men.” Betsey Stevenson and Justin Wolfers, "The Paradox of Declining Female Happiness," American Economic Journal: Economic Policy 1, no. 2 (2009): 190. Moreover, “this shift has occurred through much of the industrialized world.” Id. 

An interesting paradox surfaced in a 2009 "narcissism index." Psychologist Jean Twenge published her findings from a personality test based on research collected from 16,000 college students. Twenge reported a sharp rise of young women's self-affirmations. Jean W. Twenge and W. Keith Campbell, The Narcissism Epidemic: Living in the Age of Entitlement (New York: Free Press, 2009). 

The index indicates that only 12% of students in the 1950s agreed with the statement “I am an important person”; that percentage exploded to 80% by the late 1980s. 

Yet around the same time in 2006, Psychiatrist Miriam Grossman reported that psychiatric-consultation hours among 2,000 UCLA students had doubled within a few years, coupled with a 90% increase in serious psychiatric problems. Her own cases reflected many students afflicted with excessive drinking, drugging, one-night sex, sexually transmitted diseases, and other accoutrements of hookup-culture. Miriam Grossman, Unprotected: A Campus Psychiatrist Reveals How Political Correctness in Her Profession Endangers Every Student (New York: Sentinel Trade, 2007).
The kids are not alright. 

Married, monogamous people are more likely to be happy. Divorced men, in particular, face health risks—including heightened drug use and alcoholism—that married men do not. The Rand Corporation reported that, based on about 140 years of demographic evidence: 

“The health benefits obtained by men who stay married or remarry stem from a variety of related factors, including care in times of illness, improved nutrition, and a home atmosphere that reduces stress and stress-related illnesses, encourages healthy behaviors, and discourages unhealthy ones such as smoking and excessive drinking. Influences of this type tend to enhance a man’s immediate health status and may often improve his chances for a longer life.” 
Lee A. Lillard and Constantijn (Stan) Panis, "Health, Marriage,, and Longer Life for Men," Research Brief 5018, Rand Corporation, 1998.

Sociologist W. Bradford Wilcox also agrees traditional marital norms confer benefits: “[C]hildren who grow up in intact, married families are significantly more likely to graduate from high school, finish college, become gainfully employed, and enjoy a stable family life themselves, compared to their peers who grow up in nonintact families.” W. Bradford Wilcox, ed., Whene Marriage Disappears: The Retreat from Marriage in Middle America (Charlottesville, Va.: University of Virginia, National Marriage Project; New York: Institute for American Values, 2010).

Nobel Prize-winning economist George Akerlof explained in 1996 in the Quarterly Journal of Economics that the sexual revolution -- contrary to common prediction -- had led to an increase in both illegitimacy and abortion. Akerlof wrote again in 1998 that decrease in marriage and married fatherhood for men led to a simultaneous increase in substance abuse, incarceration, and arrests, among others.

Raquel Fernandez and Joyce Cheng Wong, writing in Free to Leave? A Welfare Analysis of Divorce Regimes, NBER Working Paper (June 2014), posit that unilateral divorce, rather than liberating women, actually disproportionately benefits men: “Conditioning solely on gender, our ex ante welfare analysis finds that women would fare better under mutual consent whereas men would prefer a unilateral system.” 

To the contrary, women would be happier under traditional norms: "How many unhappy couples turn their marriages around?" ask Dr. Waite and Maggie Gallagher in their book, The Case for Marriage. "The truth is stunning: 86 percent of unhappily married people who stick it out find that, five years later, their marriages are happier, according to an analysis of the National Survey of Families and Households by Linda Waite. . . ."

Can we, or can we not, "have it all"? Certain of mankind's ancient burdens we should like to wear more lightly, but throwing them off entirely has proved harmful. Sexual and family norms are among the demolished walls that we are now beginning to understand were load-bearing. “A society in which conjugal infidelity is tolerated must always be in the long run a society adverse to women,” predicted C.S. Lewis in “Have We No Right to Happiness,” published shortly following his death in 1963. Women tend to value domestic happiness more than men, and men tend to value their mate’s looks more than do women. “Thus,” concluded Lewis, “in the ruthless war of promiscuity women are at a double disadvantage. They play for higher stakes and are also more likely to lose. I have no sympathy with moralists who frown at the increasing crudity of female provocativeness. These signs of desperate competition fill me with pity.”

And yet still in these dark hues do we paint the visions of women’s new roles in modern society. When the progressive liberal genius Bertrand Russell agitated for women’s suffrage, no points did he award to marriage, no credit to raising families, for producing happy and meaningful lives. Russell earned a considerable fortune as a public intellectual, turning in prolific comments on human affairs and civic order. But if ever it did occur to Lord Russell that the family was the basic unit of civil society, the addled 20th century version of it proved unequal to his sexual appetites: Bertie left his devout wife, Alys, for a tryst with a married woman, before taking up with yet another mistress. Gaunt and bookish as he was, Lord Russell more than made up for his homeliness with high self-regard. "I am important," he might have thought to himself while stepping out on Alys. 

To paraphrase Sir Compton Mackenzie, women will find it no more difficult than Sir Russell to behave like men, but they will find it extremely difficult to behave like gentlemen.

One cannot expect any better treatment from elites like Russell who advocate for the individual’s political rights to more college degrees, more employment, and more divorce, and more birth control. In their purely political world, an individual is not protected by a society of families, communities, husbands and fathers, wives and mothers; rather they are pursued by CEOs and Bertrand Russells. 

To the modern elite, the individual is reduced to constituent parts. The individual is specialized. The individual is an insect.

Thursday, July 25, 2019

If You Thought HRC’s “Deplorable” Comments Were Bad—Come Visit My Bailiwick: CONLAWPROF

Today (July 25, 2019) on Conlawprof:

Professor AAA: I understand that there are people out there who will help Trump get re-elected if Democrats are not as vigorously anti-Trump as they are, or more accurately, if Democrats are more realistic about what can be accomplished than they are. I dont know how many such voters there are, but even one is too many. They are nuts, and complicit in evil. It was this kind of voter, those who stayed home or voted for Jill Stein, who gave us Trump in the first place. (emphasis added)

Seth Barrett Tillman, If You Thought HRCs “Deplorable” Comments Were Bad—Come Visit My Bailiwick: CONLAWPROF, New Reform Club (July 25, 2019, 2:01 PM), <>. 

Letter to The Editor at The Irish Times, Responding to ‘Plenty of blame to go around for Johnson’s ascent’

Letter to the Editor
The Irish Times

25 July 2019

Re: Una Mullally, ‘Plenty of blame to go around for Johnson’s ascent’ The Irish Times, (July 24, 2019, 4:13 PM), <>    

Despite a host of furious insults, Una Mullaly’s diatribe is not really so much directed against the new British Prime Minister, Boris Johnson, as it is directed against Brexit and the British societal “structures” which she believes made it all possible. But she is wrong. The societal “structures” and the so-called establishment were uniformly (if not universally) lined up against Brexit. Let’s have a good, hard look, shall we, at precisely: “Who, in the Brexit referendum, was on the Remain side?”

Her Majesty’s Government was for Remain.
The leading opposition parties were for Remain.
All the primary regional parties (DUP excepted) in Scotland (SNP), Wales (Plaid Cymru), and Northern Ireland (Sinn Fein) were for Remain.
The Archbishop of Canterbury was for Remain.
The EU, its diplomats, and the wider diplomatic community, including Ireland’s government and diplomats, were all in for Remain.
Cameron, the then incumbent Prime Minister, along with all his living predecessors, were for Remain.
George Osborne, the then incumbent Chancellor of the Exchequer, was for Remain, and he even threatened the votersvia his next proposed budgetshould they have the temerity to vote Leave.
Jeremy Corbyn, the leader of the opposition, then and now was for Remain.
The majority of members of Parliament were for Remain.
President Obama was for Remain.
The Bank of England and the bureaucracy were for Remain.
The labour unions were for Remain.
Academia was overwhelmingly for Remain.
Industry (eg, the Confederation of British Industry) was for Remain.
The BBC and the largest part of both the new and old media (Murdoch’s broadsheets excepted) were for Remain.
All the highbrow magazines were for RemainThe Spectator excepted.
The actors & arts communities were for Remain.
The vast majority of student activists were for Remain.
Owen Jones and all the other wannabe student activists were for Remain.
The vast majority of the bar and the legal profession were for remain ... but I repeat myself.

Now ask yourself, precisely: “Who, in the Brexit referendum, was on the Leave side?”

Just some voters. And Una Mullaly’s position, simply put, is: “Voters—what do they know?”

Seth Barrett Tillman

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Irish Times, Responding to ‘Plenty of blame to go around for Johnson’s ascent’, New Reform Club (July 25, 2019, 8:28 AM), <>. 

Tuesday, July 23, 2019

Status of the 3 Emoluments Clauses Cases Against the President

Today is 38 weeks (over 8 months) since oral argument in CREW v. Trump (2d Circuit). A baby goes from conception to birth in that amount of time.

Of the 3 Emoluments Clause cases, CREW v Trump has the simplest posture of the 3 lawsuits--a direct appeal of a grant of a motion to dismiss. There is no Section 1292 motion for interlocutory review. There are no ancillary discovery orders.

This is the oldest of the 3 cases--filed in January 2017, on the first full business day of the new President's administration. The other 2 Emoluments Clauses cases were filed 5 months later.

It has no individual capacity claim, but only an official capacity claim. By contrast, the 4th Circuit case (DC & MD v Trump) had both an official capacity claim and an individual capacity claim. Yet that case (4th Circuit case) was decided by the panel in under 4 months, and ...

... this case (2d Circuit case) remains undecided after more than 8 months! Finally, the median time between oral argument and a decision in a 2d Circuit civil case is 7/10ths of a month. Yet no decision has emerged.
There will come a point where people (other than me) will notice that this situation does not reflect so well on the federal courts--which are fully funded & resourced. If there is a problem, it starts & ends with those in charge.

Seth Barrett Tillman, Status of the 3 Emoluments Clauses Cases Against the President, New Reform Club (July 23, 2019, 7:42 AM), <>.

Monday, July 15, 2019

After Syriza—the Future of the Left

Letter to the Editor:

July 15, 2019

Re: Gary Younge, ‘Syriza’s defeat shows the left needs a plan to sustain power’ The Guardian (12 July 2019) journal 1–2, <>.

Gary Younge wrote that Syriza “folded,” and did so because “there is a limit to how much any election can achieve under neoliberal globalisation—because no matter who you vote for, capital and its proxies always get in, from currency traders to international organisations.” What currency traders?—Greece is in the Eurozone. All the key negotiations were among parties using the same currency.

As for international organisations—that is a euphemism for the European Union. Syriza failed because its leadership was more interested in taking direction from Brussels than from its own citizens, voters, and supporters. Had the Greek government abandoned the Eurozone (albeit, abandoning the Euro may have cost Greece EU membership**), the Greek government would have been better positioned to renegotiate its debt with both the EU and with its other creditors. The Syriza government chose not to do so, and that is why it lost the last election.

One might also see the broader lesson for the UK and the Left. If an elected government abandons its popular mandate, its election manifesto, and its commitment to national democracy (eg, referendums), voters have no reason to stick around. The Left, in the UK and elsewhere, has a similar choice. Parties of the Left, ie, its governments-in-waiting, can commit to holding public power in trust for actual citizens, or, instead, they can choose to wield power on behalf of mere consumers and patients—all the while taking direction from distant, unaccountable bureaucrats who lack democratic bona fides. The latter road—whether taken by parties of the Right or the Left—is not a path to meaningful electoral victory. Just ask Syriza. 



Seth Barrett Tillman, Lecturer
Maynooth University Department of Law

Seth Barrett Tillman, After Syrizathe Future of the Left, New Reform Club (July 15, 2019, 5:33 AM), <>. 

**Characterizing the loss of EU membership as a cost is a contentious value judgment. That Greek exit from the Eurozone might also result in GREXIT (ie, Greek exit from the EU) might also be characterized as a feature, not a bug. 

Thursday, July 11, 2019

The Tale of Sir Beaumains and the Churlish Damsel

Follows below a modified excerpt of the tale of Sir Beaumains, from Sir James Knowles' King Arthur and His Knights, copies of which abound online. As in my previous Arthurian adaption, The Tragedy of the Moot Point, it is hoped the hints of Trump-era political relevance are plain enough (lest the reader think "Fair-hands" too on the nose, it is from the original Malory). 

Now, on Whitsuntide came a man before King Arthur's Table Round as they were sitting to meat, asking after quests. The man's face and hair shone the color of the sun as he told of his many adventures, and the king, being taken with the artfulness of his dealings, granted him three gifts. 

Then said King Arthur, "What is thy first request?" "This, lord," said he, "that thou wilt give me meat and drink enough for twelve months from this time, and then will I ask my other two gifts." 

The king had granted his desire, and given him into the charge of Sir Key, the steward. But Sir Key scorned and mocked the man, calling him Beaumains, that is, Fair-hands, and putting him into the kitchen, where he had served for twelve months as a scullion, serving below even the jesters and troubadours and jongleurs among the guests of the court. And, in spite of this treatment, Beaumains had faithfully obeyed Sir Key.

And so in the twelfth month a damsel came before the king. Now, this damsel brought news from across the kingdom, and told of a tyrant of the Redlands across the marshes. "I know him not," said Arthur. "But I know him, lord," said Sir Gawain, "and he is one of the most perilous knights in all the world. Men say he hath the strength of seven; and from him I myself once hardly escaped with life."

And now at this time came young Beaumains to the king, while the damsel was there telling of this news, and said, "Lord, now I thank thee well and heartily that I have been twelve months kept in thy kitchen, and have had full sustenance. Now will I ask my two remaining gifts." "Ask," said King Arthur, "on my good faith." "These, lord," said he, "shall be my two gifts--the one, that thou wilt grant me this adventure of the damsel, for to me of right it belongeth; and the other, that thou wilt bid Sir Lancelot make me a knight, for of him only will I have that honour." "Be it as thou wilt," replied the king. 

But thereupon the damsel was full wroth, and said, "Shall I have a kitchen page for this adventure?" and so she took horse and departed. Then said Beaumains to the king: "My lord, the honor of this quest being mine by right not only, but nor by my honor shall I suffer go unmet such a challenge to the sovereignty of thy lordship, who has shown me favor."

Then came one to Beaumains, and told him that a dwarf with a horse and armour were waiting for him. And all men marvelled whence these things came. But when he was on horseback and armed, scarce any one at the court was a goodlier man than he. 

Then Sir Key cried, "I also will ride after the kitchen boy, and see whether he will obey me now." And taking his horse, he rode after him, and said, "Know ye not me, Beaumains?" "Yea," said he, "I know thee for an ungentle knight, therefore beware of me." Then Sir Key put his spear in rest and ran at him, but Beaumains rushed upon him with his sword in his hand, and therewith, putting aside the spear, struck Sir Key so sorely in the side, that he fell down, as if dead. Then he alighted, and took his shield and spear, and bade his dwarf ride upon Sir Key's horse.

By this time, Sir Lancelot had come up, and Beaumains offering to tilt with him. And after giving long battle Lancelot marvelled at the strength of Beaumains, for he fought more like a giant than a man, and his fighting was passing fierce and terrible. So, at the last, he said, "Fight not so sorely, Beaumains; our quarrel is not such that we may not now cease." "May I, then, stand as a proved knight?" said Beaumains. "For that will I be thy warrant," answered Lancelot. So then he knighted Beaumains, and, after that, they parted company, and Sir Lancelot, returning to the court, took up Sir Key on his shield. And hardly did Sir Key escape with his life, from the wound Beaumains had given him. 

But all men blamed Sir Key for his ungentle treatment of so brave a knight.

Then Sir Beaumains rode forward, and soon overtook the damsel; but she said to him, in scorn, "Return again, base kitchen page! What art thou, but a washer-up of dishes!" And in such manner did the damsel speak of Beaumains to any whom they met in their adventure.  

And on the morrow, the damsel and Sir Beaumains rode on their way till they came to a great forest, through which flowed a river, and there was but one passage over it, whereat stood two knights. And the damsel beseeched the knights to seize Beaumains, calling him a false knight. So there, in the river, one of the knights met him, and they brake their spears together, and then drew their swords, and smote fiercely at each other. And at the last, Sir Beaumains struck the other mightily upon the helm, so that he fell down stunned into the water, and was drowned. Then Sir Beaumains spurred his horse on to the land, where instantly the other knight fell on him. And they also brake their spears upon each other, and then drew their swords, and fought savagely and long together, and all the while the damsel did not cease calling imprecations upon Beaumains and giving encouragement to his assailant. And after many blows, Sir Beaumains clove through the knight's skull down to the shoulders. 

But ever the damsel still scoffed at Sir Beaumains, and said, "Alas! that a kitchen page should chance to slay two such brave knights! Thou deemest now that thou hast done a mighty deed, but it is not so; for the first knight's horse stumbled, and thus was he drowned--not by thy strength; and as for the second knight, thou wentest by chance behind him, and didst kill him shamefully." And said the damsel, "if thou followest me thou wilt be surely slain, since I see all thou doest is but by chance, and not by thy own prowess." 

Anon the damsel and Sir Beaumains came into a black space of land, where they came upon the Knight of the Blacklands, who said, "Fair damsel, hast thou brought this knight from Arthur's court to be thy champion?" "Not so, fair knight," said she; "he is but a kitchen knave." "Then wherefore cometh he in such array?" said he; "it is a shame that he should bear thee company." "I cannot be delivered from him," answered she: "for in spite of me he rideth with me; and would to Heaven you would put him from me, or now slay him, for he hath slain two knights at the river passage yonder, and done many marvellous deeds through pure mischance." "I marvel," said the Black Knight, "that any man of worship will fight with him." "They know him not," said the damsel, "and think, because he rideth with me, that he is well born." 

In lordly deference to the damsel the Black Knight addressed Sir Beaumains, "Now quit this lady also, for it beseemeth not a kitchen knave like thee to ride with such a lady." "I am of higher lineage than thou," said Sir Beaumains, "and will straightway prove it on thy body." Then furiously they drove their horses at each other, and came together as it had been thunder. But the Black Knight's spear brake short, and Sir Beaumains thrust him through the side, and his spear breaking at the head, left its point sticking fast in the Black Knight's body. Yet did the Black Knight draw his sword, and smite at Sir Beaumains with many fierce and bitter blows; but after they had fought an hour and more, he fell down from his horse in a swoon, and forthwith died. Then Sir Beaumains lighted down and armed himself in the Black Knight's armour, and lamented the tragedy that such an honorable knight had met an end merely by cause of the damsel's churlishness.

But notwithstanding all his valour, still she scoffed at him, and said, "Away! for thou savourest ever of the kitchen."

Anon the damsel and Sir Beaumains entered the domain of a knight clad all in green. And to this honorable knight the damsel in like manner delivered her fulmination against Sir Beaumains. And the Green Knight, being bound by damsel's petition, rode at Sir Beaumains, and they brake their spears together, and then they drew their swords, and gave many sad strokes, and either of them wounded other full ill. 

And when the Green Knight fell under the mighty blows delivered by Sir Beaumains, he yielded, and prayed him to spare his life. "All thy prayers are vain," said he, "unless this damsel who came with me pray for thee." "That will I never do, base kitchen knave," said she. "Then shall he die," said Beaumains. "Alas! fair lady," said the Green Knight, "suffer me not to die for a word!" Then cried the damsel, "Slay him not; for if thou do thou shalt repent it." "Damsel," said Sir Beaumains, "at thy command, he shall obtain his life." 

Yet still did the damsel rebuke and scoff at Sir Beaumains, and would not suffer him to sit at her table.

At last the damsel and Sir Beaumains came through the marshes and into the Redlands where they met the Red Knight, who gave battle. Then, with their swords, they fought fiercely for the space of three hours. And at last, Sir Beaumains overcame his foe, and smote him to the ground. Then the Red Knight prayed his mercy, and said, "Slay me not, noble knight, and I will yield to thee with sixty knights that do my bidding." "All avails not," answered Sir Beaumains, "save this damsel pray me to release thee." Then did he lift his sword to slay him; but the damsel cried aloud, "Slay him not, Beaumains, for he is a noble knight." Then Sir Beaumains bade him rise up and thank the damsel, which straightway he did, and afterwards invited them to his castle, and made them goodly cheer. 

But notwithstanding all Sir Beaumains' mighty deeds, the damsel ceased not to revile and chide him. 

And as she constantly reviled him and tormented him, he said to her, "Damsel, ye are discourteous thus always to rebuke me, for I have done you service; and for all your threats of knights that shall destroy me, all they who come lie in the dust before me. Now, therefore, I pray you rebuke me no more, and so spare the kingdom the tragedy of the needless dishonor and defeat of more good knights. For whatsoever ye said to me I took no heed, save only that at times when your scorn angered me, it made me all the stronger against those with whom I fought, and thus have ye furthered me in my battles. 

"But whether I be born of gentle blood or no, I have done you gentle service, and peradventure will do better still, ere I depart from you." 

Trump, the UK, and Ambassador Kim Darroch

Letter to the Editor:

July 11, 2019

Re: Martin Kettle, ‘Kim Darroch has resigned. Now Britain risks becoming a vassal of the US’ The Guardian (10 July 2019, 18.29 BST), 

Martin Kettle quotes British diplomatic officials as stating that there is no precedent for what Trump has done—in seeking to have Kim Darroch removed from his post as the UK’s ambassador to the United States. Kettle and the diplomatic officials he quotes are simply mistaken. It is common practice for countries to deny granting consent and also to withdraw consent once granted in regard to the presence of foreign diplomatic officials who are not—or who are no longer—wanted. It is so common that it has been codified as established practice by the Vienna Convention on Diplomatic Relations (1961). Article 9 provides:
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
Historically, the most famous such case was when the Pope refused to grant credentials to the ambassador designated by the German Empire. See Otto von Bismarck, ‘The Canossa Speech’ (1872), in 7 Francis W. Halsey & William Jennings Bryan (eds), The World’s Famous Orations (Funk & Wagnalls Co. 1906) 243, <>.

Again, what Trump has done is not exceptional in the least.

Seth Barrett Tillman, Letter to the Editor, ‘Britain hasn’t got much out of the special relationship for a long time,’ The Guardian, July 11, 2019, 18:22 BST, <>. 

Seth Barrett Tillman, Trump, the UK, and Ambassador Kim DarrochNew Reform Club (July 11, 2019, 5:02 AM), <>. 

Friday, July 05, 2019

Brexit—What Academics Are Saying

On July 4, 2019, Professor AAA wrote: “There are two other possibilities: d) a fantasy, rejected by every single EU official each time it is floated, that the ‘deal’ can be renegotiated. And then there is e) crashing out without a deal.” The term “fantasy,” like “unicorns” used on another occasion, seems to me to be misplaced hyperbole.

First, as one-and-all get closer to the deadline, Oct 31, 2019, if the UK makes a credible threat of a hard Brexit (i.e., a Brexit without an EU-UK deal providing for something akin to current frictionless trade), the EU will have to consult its interests, the interests of its member states, and its citizens’ interests. Mostly EU negotiators will be mindful of the EU’s institutional interests. The EU is not in the black. Its current and next few annual budgets were arranged having in mind annual member payments by the UK into the EU treasury. The UK is a large net contributor to the EU budget. The continuing members will not want to pick up the shortfall caused by the UK’s exit—and that includes the German taxpayer—another large net contributor. In that situation, there might be some play in the joints (i.e., support for amendments to the deal now on offer, and further negotiations). 

Second, the Irish will also consult their interests. Again, if the UK makes a credible threat of a hard Brexit, the Irish will be faced with the unpalatable prospect of going forward without the current proposed deal and without its proposed backstop. That may mean that the Irish government, in order to comply with EU law, will have to have border checks and collect taxes for goods crossing the frontier into the EU common customs area from the UK, including Northern Ireland. In those circumstances, the Irish might be willing to reconsider their position and to allow the deal to be amended, but giving the backstop an automatic sunset (e.g., after 5 years) and/or giving each party (the EU and the UK) the unilateral right to terminate the backstop at any time. If the Irish are willing to live without the backstop as it is in the current proposal, surely the other EU members would be willing to redraft the proposal to support Ireland—a continuing EU member. After all, the backstop was only crafted by EU negotiators to support the Irish. If the backstop were amended in this way, it is likely that Prime Minister May’s agreement (as amended) would have the support of the entire Tory leadership, and concomitantly, the UK (on that basis) would continue to pay its EU member fees for the next few years into the EU budget.

Finally, other EU members will have some continuing interest to avoid a hard Brexit (just as the UK does): all (or nearly all) EU members have significant exports to the UK. German car manufacturers come to mind, as do the French and their agricultural products (including, e.g., wine and cheese).

Maybe the EU will refuse to reopen negotiations and maybe they won’t. I don’t have a crystal ball. But terms like “fantasy” and “unicorns” seem to me to lay claim to more predictive powers than most mere mortals have.

Professor AAA also wrote: “Under UK constitutional law, the UK’s approach to Brexit requires consent of the Parliament, and the Parliament will not agree to leaving without a transitional arrangement in place.” This seems to me to be unsupported. Professor AAA does not point to any legal authority for this view—not any ministerial order, not any statute, not any speaker’s ruling, and not any commentator’s pronouncement. I could see arguing that a new treaty (e.g., a deal) might require parliamentary authorization—before or after ratification by the executive. But if all the Government does is to run out the clock, thereby allowing EU membership (as a matter of public international law) to terminate by inaction, then it is certainly not obvious why any (further?) parliamentary consent is necessary. And the Government could plausibly make the argument (at least to the 52% of the public that voted for Brexit) that it already has parliamentary consent to do exactly that—to run out the clock—as Parliament delegated that decision to the people in the referendum and the Government is merely carrying out the referendum’s result.

Prorogation offers a means to stop an incipient Commons majority from stopping the Government’s Brexit plans—particularly any hard Brexit. But prorogation is not the only such means. All that the Government has to do is control the timing of Commons’ meetings and the agenda paper at those sittings, and then make sure a friendly speaker offers no opportunity to anti-Brexiteers to make a motion to stop the Government’s Brexit-related plans. In normal circumstances, that is exactly what is supposed to happen—with the exception that a Commons majority can bring down the Government in a no confidence motion (historically, this would customarily take place in the context of a motion for supply by the crown). If Tories are put to the hard choice of stopping the Government’s Brexit plans by bringing the Government down and forcing a new election, it is likely (in my view) that few Tories will rebel and those few who do will be easily made up for by DUP members, and by more than a few Labour members who are pro-Brexit (e.g., John Mann, Frank Field, Kate Hoey, etc). If the cost or consequence of rebelling is a new election, many rebelling Tories will lose their seats—this is particularly true in Tory constituencies which voted for Brexit in the referendum. If Tories are put to the choice of stopping the Government’s Brexit plan but in doing so risking the election of a Corbyn-led government in the near term, I think few will rebel.

Finally, Professor AAA wrote: “The other option—of having the new PM just run the clock out so that Parliament’s views become irrelevant—is also unconstitutional given the principle of parliamentary supremacy.” That principle is dead in the water until such a time as Brexit should occur. Until such a time, the UK Parliament and the UK is subject to EU law and the courts of the EU. Should Brexit occur, then we can again discuss the intellectual content of that now dormant principle.


Seth Barrett Tillman, Brexit—What Academics Are Saying, New Reform Club (July 5, 2019, 9:54 AM), <>.