Ciceronian Review

Lazy Journalism

In the NT today is a story with the headline: Federal Workers' Children Born Abroad May Not Receive Automatic Citizenship.  Suppose you are interested in the story, as I was.  What one might like to learn from the story is which children will not receive automatic citizenship.  The story says some won't or may not.  Start with that, which ones?  Well, keep wondering because the story does not say.  It tells us that the new policy will "not affect the children of families with at least one parent who is an American citizen and has lived in the United States for at least five years."  That is not the policy, obviously.  It says something else and more.  But this not even a good start.  Does it exempt children of US citizens who have lived in the US at least 5 years in their lives?  So does it exempt the children of those who were born in the US and lived in the US at least 5 years?  Or is it 5 years within the last X years?  Does it apply to those who have been out of the US for 5 years?  Why, that is, not just say what the new policy is?  Odds are because the reporter has not read the policy and is too busy or something to find the thing and read it.  Instead, we get a report about press releases.  It cannot be that hard to read the new policy, or at the very least, for the really lazy, to link to the policy (the story is in the web version of the NYT, so it is not something difficult).  No, nothing.

Called by WJS

The Wall Street Journal concerned about deficits. WSJ does not worry about deficits when Republicans are in control.  The WSJ is calling the 2020 election for the Democratic Party, whoever the nominee.

Idols of Economics

If one reads blogs or columns by economists, one finds that, over time, there is a kind of economic celebrity offered up for admiration, people whose words should be attended to with special care.  I don't mean paying attention to the ideas of Warren Buffet about investing, or attending to the words of the Federal Reserve Board about what they do.  I mean the attention paid to discussions by folks like Peter Thiel about social and political issues, or Andreesson or Elon Musk and so on.  Sometimes expressed, and sometimes not, is the idea that these people have special  insight in virtue of their accomplishments.  It is a bit odd for economists to take such a view.  What have they done?  Become quite rich, of course.  They have done other things, like go to college, sometimes an advanced degree, but nothing much that would lead one to think they have any particular insight into social or political matters.  It should be needless to say, but isn't, that they have the same right to engage with social and political topics in the ways they think appropriate.  That is beside my point.  My point, as I asked, is that special weight is given to their views, in particular by public economists because they are so wealthy.  Wealth stands in for, or rather is, qualification for expertise, for acuity. 

Consider this: raise with the economist the issue of just wages, or fair wages, or what wage is deserved.  The standard answer is that such a question has no answer because it makes no sense in the end.  There is no desert in an economy. no account of justice sets wages, there is no moral claim to a particular wage.  Wages are left to a market. the right wage is whatever it is that the participants end up with.  Value is not based on desert, is not based on merit.  In fact, one of the prized features of markets is that they do away with the questions of merit.  

If that is so, then the idolatry of people like Thiel is foolish.  Economists, i.e., Cowan and his colleagues, are being silly in paying special attention to the views of folks like Thiel, unless all that motivates is the thought that the very rich have large influence and it is wise to attend to the influential no matter what the views.  But that is not what is going on.  What is going on is that attention is paid on the view that Thiel et al. have more insight, are wiser, deserve more attention.  They merit the attention.  But that cannot be squared with the fact that markets are not based on and do not reflect merit.  

They Know More

A group of philosopher professors have filed an amicus brief in Bostok v. Clayton County, one of the consolidated cases before the Supreme Court on the question of whether Title VII applies to bar discrimination against gays/lesbians or transexual persons.  More accurately, does the term "sex" in the statute cover sexual orientation or gender, or is it limited to discrimination against male and female persons because male or female?  There are very interesting arguments on this. As to this amicus brief, I have a couple of questions.  Although the brief was drafted with the aid of a law professor, it really is signed by something like 80 academic philosophers.  Of course none of them wrote it.  But, the argument is quite philosophical.  It shortest form, it comes to the claim that discrimination against, e.g., gay men, one necessarily discriminates on the basis of sex because their sex identification is intrinsic to the sexual orientation.  That one cannot discriminate on the basis of sexual orientation without at the same time discriminating on the basis of sex. Read the brief for the details.  My concerns are not with the argument, not here. 

First, who is the brief aimed at?  Which justice(s) are likely to be interested in an analysis endorsed by academic philosophers? take out the suggestions of sarcasm.  A useful amicus brief is one calculated to address the interests of one or more justices.  So, when the question involves some opportunity for originalist analysis, a brief from legal historian may be of interest to one or more Justices.  (They don't seem interested in the work of historians simpliciter, the folks whose careers are made up of studying, e.g., colonial America.  Legal historians are something else.)  Chamber of Commerce submit briefs on economic and business issues.  The point is, which Justice is reading philosophy?  If none are, is this aimed at a particular (set of) clerks? 

Second, most of the academics have no particular expertise in law, or constitutional law.  Why is the interpretation of a statute a topic which philosophers have any special expertise?  What is it really that is being offered (in addition to 'here are a bunch of people who want this outcome' -- which is not valueless) in the brief these folks know better than others?  Again, strip out any suggestion of sarcasm.  I am wondering about how this is supposed to be understood.

1619

The NYT is running a series of essays connected with the the broad history of slavery and racism in the US.  (Slavery here and in all the articles I have read so far is black slavery.  Nothing about the enslavement of Indians or of Mexicans.  That is understandable and is legitimate  The latter are less significant because involving far fewer numbers and not sinking as deeply into the social structures.)  All of the essays so fr have been interesting.  They are all well-written, and well-illustrated.  It is best to keep in mind they are magazine pieces, pieces for the NYT Magazine.  It is an important point.  NYT Magazine pieces are really forms of entertainment.  They are not scholarship, and they are not usually efforts to write accurate popularizations of science or history.  I dwell on this point for a reason.  I have read three of the essays and the introduction, and expect to read the rest shortly.  They all share a common feature -- they are quite misleading and inaccurate, and also interesting and potentially informative.  Democracy did not start in the US with the Civil Rights Movement.  The Movement certainly broadened the US democracy, enlivened it and improved it, projects still underway.  But women voting involved more people, by percentage if not numbers.  The disappearance of property limits on voting rights was pretty important.  As a democracy, the labor rise of the late 19 and 20th centuries had a large impact.  So the essay overstates its case, or at least states it in a way that is not really accurate.  I am not sure that is a bad thing.  The overall series seems aimed at being a kind of tonic for what the editors think is a giant and pernicious gap in the knowledge or awareness of the nation, or the White portion anyway.  Or, perhaps it is just intended as a kind of mirroring of the way the history of the country is seen by some significant portion of Whites.  Consider the essay on the history of slavery, which has a title "A Brief History of Slavery That You Didn't Learn in School" (the essay is here).  Nice title.  It is true that I did not know all of the names and individual stories included in the essay.  But it is not materially different from the history of slavery I learned in high school.  The two are pretty close, virtually identical on all the key points.  I suppose I went to unusual high schools -- both were public schools in pretty solidly middle class places.  The colonial conquest of West Africa, exploitation of resources, extraction of human beings as slaves, the ongoing resistance and rebellion of slaves in the US, the role of slavery in the economic and political power of the South, the fundamental contractions of the political order and political rhetoric, was all there.  I get that it is just a title, designed to lure one into reading.  That is fine, indeed the right way to title the essays.  Of course, the level of historical knowledge in the US is quite low, and so I would expect the piece will be quite new for many people.  The factual defects in the article on slavery and capitalism has been discussed elsewhere. Lubet's critique is much more focused on inaccuracy and ideology, and valid.  As some of the comments on the essay on medicine point out, it is error to think that ethnicity and the rough classifications of race are irrelevant to medical treatment.  There are different rates of kinds of cancer and different risks that go with different ethnicities. And some of the listed myths are not even myths because no one in medical school is taught anything of the sort.  On the other hand, there are differences in pain treatment and other health outcomes and diagnoses that look to be the result of racist thinking.  I don't think that makes the essay a failure.  I think that one should also think about what the overall aims are for the set of essays.  But maybe I have too low a standard for magazine articles.    

Putting Down a Silk Slipper

A US Attorney offices ignores orders of a Federal District Court, misleads the Court concerning compliance with the orders, loses or destroy evidence.  Collects and reads privileged attorney client communications.  Imagine a world in which that conduct was punished.  You are not imagining this world, or at least not this country.  What the Court is considering is making the US Attorney office pay the Federal Defenders' fees in pursuing the matter.  The 184page opinion is at: Aug. 13 opinion.  I though the report may have missed something, but it does indeed look like there is nothing happening to the US Attorney in Kansas.  There is a chance, of course, that somewhere down the road something in the way of a genuine sanction might be imposed.  I am a doubtful.  The courts, whether sate or federal, really do not like exercising their supervisory powers, something they have a duty to do, over government lawyers, and prosecutors in particular.  In my 20 years in Utah, only once has a prosecutor been subject to misconduct sanctions.  

I am sure some budget somewhere will suffer, but what about the lawyers who hid documents, refused to comply with orders, knowingly violated attorney client privilege, and so on?  Is it really too much to ask that there be some personal responsibility?   

Eggshells

On various philosophy blogs there are debates about whether someone or other should be saying something or other, or how academics should behave toward one another.  No petitions for Collard.  Philosophy as maybe activism.  The return of internecine wars of the anti-war movement.  They are all, in differing ways, interesting topics of discussion and entertaining reading.  In the commentary, one always finds several warnings about how to talk, that some sorts of requests or inquiries may be problematic, that it is bad for senior academics to criticize junior academics, to take for the vulnerabilities of graduate students, why of course comments must be anonymous and so on.  It is the comments that I have in mind now. 

Academics, at least in philosophy, teach.  They grade their students.  They organize and present courses.  They are in departments that organize a major or a minor (almost all of them, anyway).  They write letters of recommendation.  Those with graduate programs teach and advise graduate students, and write more letters of recommendation.  And they conduct hiring searches, and they hire people.  How is all that done?  It is not nurturing to give out bad grades.  It is an exercise of power, imposing opinions.  Making hiring decisions is certainly cruel to those not chosen.  Recommendations are about personal relationships, at least in part.  The winnowing of graduate students, and colleagues, are built on the more senior judging and being critical of juniors.  Why aren't these practices condemned?  

No to open letters and petitions.  But yes to committees and to departments, and each making decisions about curriculum and about personnel?  No voting in a department?  No to voting generally?  Or is it that being asked to sign is just too much pressure?  Unreasonable to expect someone to stand with their own views?  Well.  It sometimes seems that these poor folk in academia should be able to flourish without any risk, and certainly nothing should happen that might interfere with their careers.  An exaggeration of course.  But not enough of one.

 

They are special

All of the ethics complaints against Kavanough were dismissed a few weeks ago.  So the headlines said.  In the stories, if one read far enough, one learned that the complaints were dismissed because the entity considering the complaints determined that it did not have jurisdiction.  The merits of the complaints were left untouched.  The entity, a special committee of the 10th Circuit Court of Appeals, had no choice really.  None of the ethics rules apply to a Justice of the Supreme Court.  Once confirmed, there was no jurisdiction to consider the complaints.  It is a curious state of affairs.  The Justice each for her or himself decides whether they have violated some ethics norm.  No rules are applied, and each is his or her own judge.  The late Justice Scalia would take paid hunting trips (recall the location of his death), catch rides of private planes, and so on.  Justice Thomas' wife is a political activist on issues that appear before the Supreme Court.  Nether saw a problem with the situation.  It seems to me a bit of a scandal, but of a piece with both the quasi-religious nature of the Court and its practices, and the idolatry of prestige.  Although I suppose there are other positions for which there are no rules of conduct, none come to mind.  CEOs lose their jobs over misconduct and conflicts (admittedly on rare occasions), and even other judges (extremely rarely, but still).  There is someone to complain to and someone charged with investigating the complaints.  Except the Saints of the High Bench.  For them, no standards.  I cannot see what argument could be made persuasively for this situation.  

It could be cured.  The Supreme Court could promulgate a set of rules of conduct, and create a body to examine complaints.  It could set the sanctions for misconduct.  Or it could be done by statute.  There is nothing in the structure of the court system that prevents this, nor in the Constitution.  Certainly not in an originalist Constitution, or on a living constitution view.  Such an arrangement would, however, detract from the mystery of the Saints, all of whom always are wonderously smart, kind, generous, great persons.  Their former clerks, whose careers are made by having been by selected as clerks, say so.  Well, at least so long as the justice is not dead at least fifty years.  To be less petty in expression, there is no reason to think the Justices are Saints, or really much different or better than the rest.  They have conflicts, they have cognitive biases and blind spots.  We could do something about the conflicts and the ethics, to help them.  Fair hearings, after all, are what most say they want.

Oh, one complaint, or one more, on a related topic.  The Solicitor General is not a General.  His or her assistants are not colonels or captains. 

We're So Special

It has almost no role at all in the current rounds of debates of those running for the Democratic Party nomination, but it does seem to be the most important issue for the nation, the state, the world: Climate change.  There is this, in today's NYT, about the disaster looming for food supplies for human beings. And stories about the shortages of potable water for human beings, already on us and of increasing severity, and of course the change in the heat of the atmosphere and oceans. But nothing much from the candidates, or from the Administration.  As what the candidates are asked is what the reporters think interesting, the reporters must think the near time probability of the destruction of human civilizations and life not an interesting topic.  

There are some ways in which they are right.  People, meaning relatively rich folk like me, are not willing to be much inconvenienced to help with the problem.  No one seems to win elections by pointing that we must make investments and sacrifices as a nation in order to address an issue.  What Joe said 40 or 50 years ago matters more, what Pete manages not to say about much of anything matters more (he went Iraq or Afghanistan to do something, though no one knows what).  Or maybe it is the plans to completely alter the health care system, whose practicality can't matter because the Senate is Republican and it will not ever ever happen during the next administration.  

But is also something that should be on the top of the list.  The world is getting hotter and there is nothing on line to halt the rise or even slow the rise.  And with the rise comes extinction.  Likely millions of species.  Okay, they are mostly doomed anyway because we, if not burned up, are going to destroy all habits not hospitable and usable by and for us.  But burned up we will be.  Which is the introduction to the question of what should one do -- use it and go, or try to prolong our presence?

 

Empty Glitter

The TLS has a devastating review of Preet Bharara's book Doing Justice, by Clive Stafford Smith.  The review dismantles the central stories of the book, and casts bright light on the ideological stance adopted by Bharara.  Smith is defense lawyer, and knowlegdeable about the legal processes and cases Bharara discusses. It is in contrast the general run of reviews, which take Bharar at face value, never looking past the pages.  Even in places one could reasonably expect to do a critical job, there has been nothing much like Smith's work.  It is, I think, the result of two sources of influence ont he reviewers.  First, Bharara has somehow triggered the wrath of Trump.  Maybe a hint that he would investigate some of the criminal conduct of Trump.  Not that Bharara ever in fact did, and certainly never before Trump ascended to the Presidency.  But now Bharara is on the side of political good, so not too strong a critical examination.  The other source is the general tendency to accept the statements of prosecutorial authorities, to consider prosecutors golden-souled.  Upright and sacrificing.  It is just the way the politics of it work.

One short bit from the review.  Brandon Mayfield was implicated by the FBI and US Attorneys in the 2004 Madrid train bombing.  The Madrid bombing resulted in 193 dead and 2,000 injured. He was arrested and held for two weeks as a material witness, suspected of participation.  The arrest was, purportedly, based on finding Mayfield's fingerprint to "latent fingerprint 17" at the scene.  "Bharara then describes the facts that led the FBI to think that Mayfield was their man: he “had married a Muslim immigrant from Egypt. Not only that but he himself had converted to Islam. Not only that, but he frequented a particular mosque in Beaverton, Oregon, that had received attention from local authorities”."  I won't repeat the whole section from Smith, but only a couple of points.  But let's stop here and look at what  Bharara offers up as the basis to arrest Mayfield.  He is Muslim.  None of this is even relevant to whether Mayfield was involved in the bombing. At every point something of the sort is offered.  There was no fingerprint 17 and there was no match.  And then this, which I found astonishing:  "Other factors ignored by the FBI – and which Bharara does not mention – are Mayfield’s patriotism, his nine years’ service in the US military, and one piece of rather compelling information, readily checked through Homeland Security records: that he had not travelled outside North America in more than a decade and could therefore not have been in Madrid for the bombing."  That Mayfield never left the country is not a problem?

Two points.  The procedural and intellectual travesty is, or rather ought to be, literally astonishing.  If it were not so entirely ordinary.  And, second, Bahara cannot admit any of it.  He cannot admit that Mayfield should never have been dragged in, that he was innocent, that the whole thing was, plainly, a complete failure on the side of the FBI and US Attorneys involved.  He cannot admit error. 

When the Utah Appellate Practice Section invited a national speaker annually, someone of particular note in the appellate practice world, about half of those invited were appellate lawyers for the government.  I had the same question for each of the speakers.  When i arranged the speaker, it was one of the questions I suggested they consider as a theme for their talk.  What do you do when your case is wrong, or a dead loser.  Over the years, we got exactly zero answers from the government lawyers.  Even in conversation I could not get an acknowledgement that any such case even existed.