Seth Barrett Tillman, ‘Dean Gerken’s Statement on Free Speech,’ New Reform Club (Mar. 29, 2022, 12:54 AM), <https://reformclub.blogspot.com/2022/03/dean-gerkens-statement-on-free-speech.html>;
Tweet: <https://twitter.com/SethBTillman/status/1508666553851596808>;
Volume 2 Steven Gow Calabresi, The History and Growth of Judicial Review, ch 11—‘The European Union and the Council of Europe’ 267, 277 (NY: Oxford University Press, 27 April 2021), <https://global.oup.com/academic/product/the-history-and-growth-of-judicial-review-volume-2-9780190075736?q=calabresi&lang=en&cc=us>:
“I expect that
once confronted with the economic consequences of Brexit, one year from now,
U.K. voters will come to rue the day they voted by a tiny margin in favor of
Brexit.”
Tillman adding: I wonder how many who read this passage saw (or now see) the ambiguity in Professor Calabresi’s wording?
Seth
Seth Barrett Tillman, ‘Academics Predicting the Future,’ New Reform Club (Mar. 28, 2022, 5:16 AM), <https://reformclub.blogspot.com/2022/03/academics-predicting-future.html>;
Tweet: <https://twitter.com/SethBTillman/status/1508372863413325826>;
Seth Barrett Tillman, ‘Zephyr Teachout on Inflation,’ New Reform Club (Mar. 25, 2022, 12:20 PM), <https://reformclub.blogspot.com/2022/03/zephyr-teachout-on-inflation.html>;
Tweet: <https://twitter.com/SethBTillman/status/1507390787822268418>;
Welcome Instapundit Readers!
“Tolkien
made sure we knew that Bill the [P]ony was ok, but never once stopped to tell me
that Windfola [Eowyn’s horse] was ok.” (@spectraling)
Bill the Pony came from Bree. He is one of us—one of ours—we take a personal or familial interest in Bill. On the other hand, Windfola was part of a foreign heroic warrior culture. We sympathize and hope for Windfola’s wellbeing. But Windfola is not one of ours (i.e., one of the readers’). Tolkien’s world only makes coherent sense if our local attachments are meaningful and remain so in spite of [our] meeting the greater wider world—even where that wider world is in some sense more ancient, more beautiful, and more noble than our own. At Mt Doom, Sam was reluctant do die NOT so that he might return to the ‘west’ of Middle Earth. Rather, he wanted to return to his home—the Shire, Hobbiton, and Bag End. That is why the loss of the Party Tree was a real, significant, personal loss ... in a way that a whole forest elsewhere would not be (to Sam Gamgee and to us).
Seth Barrett Tillman, ‘Bill the Pony and Windfola,’ New Reform Club (Mar. 20, 2022, 5:11 AM), <https://reformclub.blogspot.com/2022/03/bill-pony-and-windfola.html>;
Tweet: <https://twitter.com/SethBTillman/status/1504836615281201155>;
Glenn Reynolds, ‘BILL THE PONY AND WINDFOLA,’ Instapundit (Mar. 20, 2022, 6:44 PM), <https://pjmedia.com/instapundit/510534/>;
Welcome Instapundit Readers!
Seth Barrett Tillman, ‘Teaching Peak Virtue Signalling,’ New Reform Club (Mar. 18, 2022, 5:20 AM), <https://reformclub.blogspot.com/2022/03/teaching-peak-virtue-signalling.html>;
This is how my most recent article ends:
So why did [Jacob Henry] do it? We can only guess. Henry
wanted to smooth things over; he wanted to fit in; he probably thought no one
would notice. What followed were consequences he did not plan, and what he came
to stand for in the popular mind may have been principles to which he did not
subscribe. The service he did his country through the popular reimagination of
November 20, 1809 was not of his own making.
By the 1820 census, Henry had migrated to Charleston,
South Carolina, and established connections with its relatively large and
affluent, by New World standards, Jewish community. One guesses that among
them, Henry would find some comfort—among his coreligionists and the
descendants of Marranos, and other crypto-Jews. He could enjoy basking in their
and others’ pleasant admiration, and they would not ask too many uncomfortable
questions.
As few have since.
Dublin, on the Liffey, 16 Adar 5781
From: Seth Barrett Tillman, What Oath (if any) did Jacob Henry
take in 1809?: Deconstructing the Historical Myths, 61(4) Am. J. Legal Hist. 349–384 (2021) (footnotes omitted) (peer
review), <https://tinyurl.com/3etu53m3>, <https://ssrn.com/abstract=3790115>.
Seth Barrett Tillman, ‘On Jacob Henry and 1809,’ New Reform Club (Mar. 17, 2022, 1:56 PM), <https://reformclub.blogspot.com/2022/03/on-jacob-henry-and-1809.html>.
Seth Barrett Tillman, ‘Armchair Warrior,’ New Reform Club (Mar. 17, 2022, 3:46 AM), <https://reformclub.blogspot.com/2022/03/armchair-warrior.html>;
Seth Barrett Tillman, ‘U.S. and Mexico: COVID19,’ New Reform Club (Mar. 16, 2022, 4:17 AM), <https://reformclub.blogspot.com/2022/03/us-and-mexico-covid19.html>;
Seth Barrett Tillman, ‘Global Free Trade,’ New Reform Club (Mar. 15, 2022, 6:23 AM), <https://reformclub.blogspot.com/2022/03/global-free-trade.html>;
On October 22, 2021, Professor Jon D. Michaels & Dean
David L. Noll posted Legal Vigilantes and the Institutionalization of
Anti-Democratic Politics on the Social Science Research Network. See <https://ssrn.com/abstract=3915944>.
On page 23, the two law professors wrote: “Kyle Rittenhouse, the
heavily-armed murderer of two BLM protestors, has been hailed as a
heroic vigilante . . . .” (emphasis added) In support of the position they took
at that time, they cited an article by Paige Williams in The New Yorker.
See Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See”
as Direct Support in Legal Writing,’ New
Reform Club (Nov. 21, 2021, 7:47 AM),
<https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>
(reproducing extracts from Michaels and Noll’s original 2021 publication).
On February 14, 2022, Michaels and Noll posted a new draft, appearing at the same Social Science Research Network link: <https://ssrn.com/abstract=3915944>. The revised paper is now titled: Vigilante Federalism. [The Michaels and Noll’s paper is now marked as forthcoming in Cornell Law Review.] At page 35, they now write: “Kyle Rittenhouse, who shot and killed two BLM protestors, has been hailed as a heroic vigilante . . . .” (emphasis added) And again, they support their position with a citation to Williams’ article in The New Yorker.
One would think a shift from “murderer” to “shot and
killed” might call for some explanation. “Murderer” is a term of opprobrium—it carries
with it the judgment that the person acted illegally, or acted without moral
justification, or both. “Shot and killed” is less judgmental. This latter
characterization leaves open the possibility that: the defendant was not a
wrongdoer, or the defendant acted with a recognized legal defense, or both. In other
words, the difference between murderer and shot and killed is no small
thing, and an exploration of the authors’ shift in position might be part
of a thoughtful publication.
It strikes me that there are several possible explanations for the authors’ shift in position. Here, I discuss two of those possible explanations.
First, it is possible that the authors have not
shifted their position at all. Rather, they have just changed their tack or tactics,
if only to avoid their being defendants in a defamation action brought by
Rittenhouse. In other words, their opinion of Rittenhouse has not changed. If so, their lack of transparency and directness with the reader, would seem to
undermine some of the worthiness for publication.
Second, the authors now understand, in light of the
jury’s verdict, that their original position lacks clear support. Their new
position is accurate, but it refrains from making any direct judgment about the
rightness of Rittenhouse’s conduct. Perhaps, the authors believe that
Rittenhouse may be a legal wrongdoer, and he will or would be judged a wrongdoer under
the more lenient civil standard. In other words, the authors are acknowledging
that they do not know if Rittenhouse acted illegally or morally wrongfully. And
they are leaving it to the reader to figure out if Rittenhouse’s conduct was
illegal or otherwise wrongful. But if they cannot reach a judgment on the
matter, and if they are unwilling to affirm their own lack of clarity, then why
write on the topic? And, why do so a second time? Would it not make more sense
to acknowledge that the situation is less than fully clear?
What the authors could have done—is to acknowledge
that legal academics (and academics generally) suffer from all the limitations
the rest of humanity suffers from.
Academics make mistakes.
They join in group think.
They retract.
Sometimes they do not even notice that they are retracting.
And they cover their tracks.
It is not a very pretty picture.
and,
Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing,’ New Reform Club (Nov. 21, 2021, 7:47 AM), <https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>.
Seth Barrett Tillman, ‘The Left and Public Transportation,’ New Reform Club (Mar. 11, 2022, 2:32 AM), <https://reformclub.blogspot.com/2022/03/the-left-and-public-transportation.html>;
Seth Barrett Tillman, ‘The Downside of Nuclear Power,’ New Reform Club (Mar. 7, 2022, 2:24 AM), <https://reformclub.blogspot.com/2022/03/the-downside-of-nuclear-power.html>;
Tweet: <https://twitter.com/SethBTillman/status/1500526189814894597>;
Seth Barrett Tillman, ‘We Will Always Have England,’ New Reform Club (Mar. 6, 2022, 6:05 AM), <https://reformclub.blogspot.com/2022/03/we-will-always-have-england.html>;
Here is the link to the new (March 5, 2022) article in The New York Times explaining why Alvin Bragg, the elected Manhattan District Attorney, is not seeking an indictment against Donald Trump for allegedly having inflated the value of his properties when he sought bank financing. See Ben Protess, William K. Rashbaum, and Jonah E. Bromwich, ‘How the Manhattan D.A.’s Investigation Into Donald Trump Unraveled,’ The New York Times (Mar. 5, 2022), <https://tinyurl.com/2p8tshfw>. The March 5 article tells the same tale that it had reported in its February 23, 2022 article. Not just the same tale, but the same tale by the same three reporters. See William K. Rashbaum, Ben Protess, Jonah E. Bromwich, Kate Christobek, and Nate Schweber, ‘2 Prosecutors Leading N.Y. Trump Inquiry Resign, Clouding Case’s Future,’ The New York Times (Feb. 23, 2022), <https://tinyurl.com/2y7h36ep>.
The basic thread of both New York Times stories is that two dedicated, experienced frontline
prosecutors—Dunne and Pomerantz—albeit both holding temporary appointments in
the Manhattan district attorney’s office—were ready to seek an extension from
the judge having supervisory authority over the soon-to-expire Trump-related grand
jury. They wanted to extend the life of the grand jury in order to continue the Manhattan
district attorney’s investigation. According to the three New York
Times reporters, the newly elected Bragg stopped the two prosecutors from
seeking an extension; instead, Bragg will allow the grand jury to expire absent
any indictment against Trump.
The problem with the New York Times’ story is that the
known facts are equally consistent with the opposite story. The alternative
view is that the frontline prosecutors realized that they had no case, and they
were unwilling to seek an extension from the judge having supervisory authority over the grand jury. Bragg may have ordered
them to seek an extension or be fired. Having no good faith basis to seek a
judicial extension of the grand jury proceedings, the prosecutors chose to resign.
Rashbaum, Protess, and Bromwich and The New York Times would have us believe that it is Bragg, along with some of the permanent staff prosecutors in Bragg’s office, that are holding up the investigation and a Trump indictment. But these three reporters do not explain how they arrived at that conclusion. The three New York Times reporters don’t explain who their source is or who their sources are, or how many sources they have, and who they work for. Or what interest they may have for anonymously communicating their information to the media. Because the reader does not know who the sources are, the reader cannot evaluate the sources’ potential biases. Was Bragg a source? Someone on Bragg’s staff? Were Pomerantz or Dunne sources? Or one of their underlings or associates in the Manhattan District Attorney’s office? A grand juror? Or someone in a supervisory role over the grand jury? The judge?—or, someone on the judge’s staff? We don’t know, and three New York Times reporters won’t tell us. There is not even a vague statement by the three New York Times reporters along the lines that the reporters’ findings were “confirmed by multiple highly placed sources in the District Attorney’s office.” Indeed, the three reporters’ March 2022 article has no discussion of sources at all. It is as if the whole story fell into the three reporters’ collective lap as manna from heaven.
For example, the article by the three New York Times reporters discusses e-mails sent by or to their narrative’s central players. But their article does not explain if the three reporters actually viewed these e-mails or if they were merely characterized by unnamed sources.
A prosecutor’s revealing confidential grand jury testimony material is, at
least, civil contempt of court, if not criminal contempt of court. [See <https://sgp.fas.org/crs/secrecy/R45456.pdf>.]
One might think that Bragg’s, Pomerantz’s, Dunne’s, their underlings’ or colleagues’,
or some judge’s or judicial staff person’s disclosing confidential prosecutorial deliberations
and the nature of what information was put before a grand jury was itself the
story—or, at least, a story (among others) worth exploring. But, no, that would require
some introspection. And we cannot have that at The New York Times.
Seth Barrett Tillman, ‘The New York Times and Trump: The Same As It Ever Was,’ New Reform Club (Mar. 6, 2022, 5:18 AM), <https://reformclub.blogspot.com/2022/03/the-new-york-times-and-trump-same-as-it.html>;
My prior post: Seth Barrett Tillman, ‘The Manhattan District Attorney’s Trump Probe,’ New Reform Club (Feb. 25, 2022, 8:54 AM), <https://reformclub.blogspot.com/2022/02/the-manhattan-district-attorneys-trump.html>;
Seth Barrett Tillman, ‘You Do Know What Came Next?,’ New Reform Club (Mar. 4, 2022, 12:10 AM), <https://reformclub.blogspot.com/2022/03/seth-barrett-tillman-you-do-know-what.html>;
Seth Barrett Tillman, ‘Republicans Pounce #9843,’ New Reform Club (Mar. 1, 2022, 1:19 AM), <https://reformclub.blogspot.com/2022/03/republicans-pounce-9843.html>;
