Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing

I.                   Rittenhouse “murdered two people”.

In St. Mary’s Law Review on Race and Social Justice, Aglae Eufracio wrote:

 

 

You can find the entire article here: Aglae Eufracio, A Human Rights Crisis Under Our Roof, 23 St. Mary’s L. Rev. on Race and Social Justice 201, 229 (2021), <https://tinyurl.com/2yzaecrw>. Eufracio’s citation to Haley Willis’s New York Times article, at footnote 215, is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse “murdered two people.” Have a look yourself: you decide if Haley Willis’s article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse “murdered two people.” 

It is possible that the author, attorney Aglae Eufracio, believes that the prosecutors’ charges were strong presumptive evidence of Rittenhouse’s guilt. Eufracio is an “immigration and human rights attorney.” Id. at 201 n.*. Does one imagine that when Eufracio walks into court representing aliens who the federal government seeks to deport, Eufracio tells the judge: Your honor, the government’s charges are strong presumptive evidence of my client’s guilt and deportability. Is this Eufracio’s customary position?

Alternatively, perhaps, Eufracio’s use of “murdered” (and “murdering”) was colloquial language—i.e., a murderer is someone who kills another. Is that what Eufracio meant? Still, I think law reviews usually reserve the term ‘murder,’ and its close textual variants, for unlawful killings, in conjunction with some measure of meaningful deliberation.

II.                Rittenhouse was a “heavily-armed murderer”.

Here is another use of “See”. Professor Jon D. Michaels and Associate Dean/Professor David L. Noll wrote:

 

 

You can find the entire article here: Jon D. Michaels & David L. Noll, Legal Vigilantes and the Institutionalization of Anti-Democratic Politics 23 (posted Oct. 22, 2021), <https://ssrn.com/abstract=3915944>. Here the authors characterize Rittenhouse as a “murderer.” Michaels and Noll’s support is a New Yorker article by Paige Williams. That citation is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse was a “murderer.” Again, have a look yourself: you decide if the Paige Williams article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse is a “murderer”. 

Is this where we are now in regard to the use of “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>; 

and,

see also Seth Barrett Tillman, ‘An Academic Coda on Kyle Rittenhouse,’ New Reform Club (Mar. 11, 2022, 4:32 AM), <https://reformclub.blogspot.com/2022/03/an-academic-coda-on-kyle-rittenhouse.html>. 

Sarah Jeong: Journalist Seeking Walter Duranty Award

 

Seth Barrett Tillman, Sarah Jeong: Journalist Seeking Walter Duranty Award, New Reform Club (Nov. 18, 2021, 3:42 AM), <https://reformclub.blogspot.com/2021/11/sarah-jeong-journalist-seeking-walter.html>; 

High Noon News from Hadleyville

 

Seth Barrett Tillman, High Noon News from Hadleyville, New Reform Club (Nov. 13, 2021, 5:03 PM), <https://reformclub.blogspot.com/2021/11/high-noon-news-from-hadleyville.html>; 

Virtue: An Exemplar

Letter from Empress Wende to Emperor Taizong (Tang Dynasty) (circa 636 CE):

[Chancellor] Fang Xuanling has served Your Imperial Majesty for a long time. He is careful, and all of his wonderful strategies and secret plans were not revealed to anyone. Unless there is a particularly good reason, I hope that you will not abandon him. As to my Zhangsun clan, many of them enjoy high salaries and high positions on account of our marriage, not because of their great virtues, and therefore they can crumble easily. In order to preserve the Zhangsuns, I hope that you will not put them in powerful positions, and that they would be satisfied with seeing you at imperial gatherings the first and 15th day of each [lunar] month.* 

During my lifetime, I made no contributions to the people, and I should not harm them in my death. I hope that you will not build a tomb to cause the people to labour and the empire to waste resources. Make a hill my tomb, and only use brick or wooden implements in the tomb. I hope that Your Imperial Majesty will continue to be close to honest men and stay away from those lacking virtues; that you will accept faithful words and reject wicked flattery; that you will decrease [your personal] labours and stop [your personal] hunting. Even as I go into the underworld, if these things happen, I will have no regrets. It is not necessary to summon the sons and daughters back here; if I see them mourn and cry, I will only be saddened.

[end]

Wende was also the author of a 30-volume treatise: Examples for Women.

Seth Barrett Tillman, Virtue: An Exemplar, New Reform Club (Nov. 5, 2021, 4:38 AM), <https://reformclub.blogspot.com/2021/11/virtue-exemplar.html>;

*Rosh Chodesh

This is CNN

 COP26 is being held in Glasgow.

Seth Barrett Tillman, This is CNN, New Reform Club (Nov. 1, 2021, 7:02 AM), <https://reformclub.blogspot.com/2021/11/this-is-cnn.html>; 

The BBC’s Passive Voice and the Protected Class

 

Seth Barrett Tillman, The BBC’s Passive Voice and the Protected Class, New Reform Club (Oct. 22, 2021, 4;22 AM), <https://reformclub.blogspot.com/2021/10/the-bbcs-passive-voice-and-protected.html>; 

See also: <https://tinyurl.com/3xtwbakr>;

Tillman on Biden, DOJ, and the Media

 

Seth Barrett Tillman, Tillman on Biden, DOJ, and the Media, New Reform Club (Oct. 17, 2021, 3:47 PM), <https://reformclub.blogspot.com/2021/10/tillman-on-biden-doj-and-media.html>;

The Federal Vaccine Mandate, State Derivative Actions, and Federal Securities Laws

 

Seth Barrett Tillman, Federal Vaccine Mandate, Derivative Actions, Securities Laws, New Reform Club (Oct. 15, 2022, 6:25 AM), <https://reformclub.blogspot.com/2021/10/federal-vaccine-mandate-derivative.html>; 

Letter to the Editor, Responding to ‘Why the Term “JEDI” Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific American

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

September 24, 2021

Scientific American

Letters to the Editor

1 New York Plaza

Suite 4500

New York, NY 10004

RE:    J. W. Hammond and others, ‘Why the Term ‘JEDI’ Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion,’ Scientific American (Sept. 23, 2021), <https://tinyurl.com/m8mfy972>.

Dear Editors,

Hammond and others wrote: “What’s more, the bodies and voices centered in Star Wars have, with few exceptions, historically been those of white men.” (emphasis added) The most iconic voice from Star Wars was undoubtedly that of Darth Vader, and Vader was voiced by James Earl Jones. Everyone knows this. Indeed, when people do Star Wars impressions, almost invariably, they turn to Yoda (who was a green alien) and Darth Vader (voiced by a black actor). Everyone knows this too. Hammond and his co-authors are whiting-out (no pun intended) accomplished and loved actors.

Hammond and others assert that: the “‘Slave Leia’ costume [was] infamous for stripping down and chaining up the movie series’ first leading woman as part of an Orientalist subplot.” “Infamous”? Their only evidence for this understanding of the Princess Leia-Jabba the Hutt sequence is … a link to a book suggesting that this sequence “might” be an “orientalist trope.” Their shift from “might” to “infamous” indicates that their argument lacks any established support in the literature.

What Hammond and others’ article shows is that a professional class in search of societal wrongs lacks real, actual (in this galaxy) targets for their ire, and now they must destroy children’s fantasy, theatre, and movies—and their creators. I would give your authors credit, if their views were original. But this was all done years ago, by those who objected to Tolkien’s orcs as embracing racial tropes.

Sincerely,

/s/

Seth

Seth Barrett Tillman, Letter to the Editor, Responding to ‘Why the Term “JEDI” Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific American, New Reform Club (Sept. 24, 2021, 8:02 AM), <https://reformclub.blogspot.com/2021/09/letter-to-editor-responding-to-why-term.html>; 

How To Get Cited

 

 

Dear Professor,

I have attached a copy of my article on Merryman. Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Military Law Review 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>. I take issue with the standard narrative on Merryman. My findings are inline with the recent treatments of the Merryman case by Bruce Ragsdale for the Federal Judicial Center, and also inline with the two full-length books on Merryman by McGinty (2011) and White (2011). Both books were published for the 150th anniversary of the case. See Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (2011); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011); Bruce A. Ragsdale, Ex parte Merryman and Debates on Civil Liberties During the Civil War (Federal Judicial History Office 2007), <https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war>.

In your book, you make several factual and procedural claims about the Merryman case.

You state that “[o]n May 26, 1861, when Taney arrived in Baltimore ... he learned that Merryman had been charged with ... treason.” May 26 was a Sunday, and the hearings took place on May 27 and 28. It was on the 27th that the Army explained its “charges,” such as they were. As for Merryman’s attorneys, they filed their petition on the 26th, when Taney was still in DC, and perhaps they indicated what the Army’s charges might be. But, again, that was in DC, not Baltimore, Maryland. So your chronology and/or locations here seem wrong.

You state that Merryman was one of the “troublemakers” in the “local mobs” that attacked federal troops on their way to defend DC. I don’t think there is any evidence of this. You state that Merryman was or had been a member of the state legislature prior to his arrest. (In fact, according to most records, he became a member of the legislature only after the war ended.) You state that Merryman was a colonel in the militia. (In fact, according to most records, he was a lieutenant.) You state that he was an “ardent secessionist.” I know of no statements from Merryman—by spoken or written word—indicating his political leanings. And, you state that Merryman was “trying to organize troops to fight for the Confederacy.” What possible source do you have for this?—other than the Army’s charges, which were never asserted in a criminal trial, much less proven, in any actual trial?

On the procedure side, you state that Merryman’s attorneys filed their petition with Taney because Judge Giles’s habeas orders had been ignored in prior habeas cases. That’s a sensible inference—but I know of no actual records bearing out that what you suggest was actually what motivated Merryman’s attorneys to bring their petition to Taney. Maybe Merryman’s attorneys thought Taney, as Chief Justice, would get their case more headlines? You wrote that Merryman sat as “circuit judge.” That’s not quite right. Taney decided Merryman under special authority granted to Article III judges by the 1789 Judiciary Act. He was not sitting as circuit judge on the Circuit Court for Maryland—albeit, his Merryman opinion and orders were put on file with the circuit court’s records. It would be more proper to say that Taney was “on circuit” (in the sense that he was away from his DC chambers) when he decided Merryman, and not that he was acting as a “circuit judge.” Finally, you state that Taney delivered his opinion when in DC. But contemporaneous accounts say he give it over orally in the courtroom in Maryland.

If you should publish a new edition or supplement to your book, or return to Merryman in another publication, please consider amending your Merryman narrative, and please consider citing my paper.

Thank you,

Seth

Seth Barrett Tillman, How To Get Cited, New Reform Club (Sept. 17, 2021, 3:56 AM), <https://reformclub.blogspot.com/2021/09/how-to-get-cited.html>;

 

A New Genre: Peer-Reviewed Historical Mystery Non-fiction

A Letter from an Anonymous Referee at a Peer Reviewed Journal 

August 1, 2021 

“What Oath (if any) did Jacob Henry take in 1809?: The Problem of Conceptual Confusion between State Religious Tests and Religious Test Oaths” 

I recommend publication of “What Oath (if any) did Jacob Henry take in 1809?” And I recommend publication with no necessary revisions. 

The article’s purpose is to answer the question posed in the title. It does so, and it does so in an especially engaging manner. Indeed, the article might start a new genre: peer-reviewed historical mystery non-fiction.

Among the article’s strengths is its clarity. It poses a question and then answers it. Along the way, we learn of the article’s primary contribution, which is to correct the scholarly record regarding the story of Jacob Henry. 

. . . . 

The article is very well written. I enjoyed reading it. I could see how some might criticize the essay for not fully revealing its argument until the end, but I thought the presentation was terrific, even suspenseful. 

The author may or may not be right about what Jacob Henry did, but he/she presents a compelling case that is well documented and engagingly told. I recommend publication. 

Seth Barrett Tillman, A New Genre: Peer-Reviewed Historical Mystery Non-fiction, New Reform Club (Sept. 5, 2021, 5:27 AM), <https://reformclub.blogspot.com/2021/09/a-new-genre-peer-reviewed-historical.html>; 

The article is posted here: <https://ssrn.com/abstract=3790115>;

How to Start the New Academic Year

Hi Seth,

Thanks for the query, and well spotted re[garding] the discrepancy [between the Courts Service of Ireland’s 2019 annual report and 2020 annual report].

We have had the figures re-checked several times, and the ones given in the 2020 [annual] report are the accurate ones.

The reason given to us for the discrepancy was that we were changing from one data collection tool to another at the time of the 2019 [annual] report—and the newer more accurate one was not in place just then. I think some items were missed in the changeover.

But the 2020 [annual] report figures are the correct ones.

We will change the 2019 [annual] report online.

We will also put in an erratum with it.

Thank you so much for letting us know of this matter, so as we can correct it.

Regards,

[A Courts Service Officer]

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

Dear Courts Service Officer, 

Feel free to thank me in the erratum. Academics like to be cited. It helps for things like tenure-&-promotion.

Also, you will want to make sure that [Justice] Birmingham [President of the Court of Appeal] is informed of this correction and the reasons for it. He can decide if his colleagues should be kept in the loop.

I don’t monitor all the significant numbers in the annual reports. I only monitor a subset of the information about Court-of-Appeal productivity. So one has to wonder how many other errors there are. If I am spotting an error by monitoring a small subset of the information in such a large volume, it does not bode well for these reports’ accuracy. And it would be a mistake (I think) to brush this error off as an outlier. There is no good way to tell if it is an outlier absent investigation. Public accountability, democratic oversight, and good policy-making by the judiciary and the government depend on one-and-all (including the public and the press) having accurate information about judicial productivity. So again, this error should not be brushed off as an outlier.

The 2020 Annual Report has two listed auditors: Mazars and a government office. They too should be notified—so that going forward they can monitor for this type of error. And if there is a committee that has oversight over the annual reports, you can pass on my name to its chair. In the U.S., it is common for committees to invite independent academics to participate, report, and/or observe. Years ago, I was an observer on the (U.S.) National Conference of Commissioners on Uniform State Laws Committee for a model Uniform Faithful Presidential Electors Act.

Please let me know when you put a corrected 2019 annual report on line.

Best wishes,

Seth

Seth Barrett Tillman, How to Start the New Academic Year, New Reform Club (Sept. 1, 2021, 7:39 AM), <https://tinyurl.com/28nx4a8m>;