Ciceronian Review

Judge Napping

The Kansas Supreme Court has opined that a trial judge napping during trial is not grounds for a new trial.  See here.  It is not so bad as the headlines suggest -- the napping judge did not miss any objections.  But the analysis is curious in some respects.  There is an interesting review of the reported cases about judges sleeping during trial and cases where the judge is absent for parts of the trial.  The issue here was whether the napping judge created a structural error requiring reversal; that view was rejected.  The theory seems to be that the short nap was misconduct, but not actually or structurally prejudicial: "An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal."  Short nap, no remedy.  It is misconduct -- and the response to the misconduct is?  Is it just the embarrassment of a published opinion about the nap?  Is there anything more?  I don't know.  In general, judicial misconduct remains cloaked in secrecy.  Letting the public know when a judge has misbehaved will destroy confidence in the court system.  And lawyers are limited in what they can say about a judge,  Back to the case. 

"Just like a driver who feels the overwhelming physical need for sleep should immediately get off the road, a responsible judge charged with overseeing a criminal trial who feels the need for sleep, and can no longer successfully put it off, has a responsibility to call a halt to the proceedings.  But just as not every dozing driver causes an accident, not every instance of a dozing judge must lead to an automatic reversal."  "Physical need for sleep" as opposed to other kinds of need for sleep?  A psychological compulsion does not count?  The last sentence suggests that for sleepy drivers what is punished is causing the accident, while one has a responsibility to stop driving it is not a crime to drive and doze (absent accident).  Is that the law in Kansas?  Isn't it the case that impaired driving -- which would include, I think, driving while so sleepy that one naps at the wheel of a moving vehicle -- is the crime, or a crime, and a serious one?  I know the Court's point is more along the lines of 'the napping did not cause any prejudice'.  Not quite what it says though.  

I await the coming cases setting out the guidelines for determining when and how much napping or sleeping on the bench is a problem.  Sleeping through an objection?  (But won't that get shuffled off to consideration of prejudice in missing the objection?)  A whole day, but without objections?  I also await guidelines for how the defense counsel should wake up the judge.  The defense has the burden of remedying everyone's mistakes, so that is where the burden will fall.   

Plain as Day

While the Supreme Court considers whether anti-gay discrimination and anti-trans discrimination is (or is not) already barred by statute, we can pause over the argument.  (My guess is that the Court will find the statute encompasses those protections, a conclusion that is more from the tone of the questions than the substance.  Listening made a difference.)  One line of argument, the centerpiece of the Petitioners' arguments was that the plain language of the statute covered anti-gay or anti-trans discrimination because such discrimination is built on the sex of the plaintiff.  The idea is that one determines whether the discrimination is based on sex by changing the sex of the plaintiff  and looking at what the expected conduct would have been.  So, discrimination against a gay man dating a gay man is discrimination on the basis of sex because there would be no problem with the plaintiff dating a woman.  And that is the plain meaning of the text. 

The plain meaning of the text, on this approach, is at least sometimes not plain.  In the instant case, it is not controversial that Congress and the President at the time would not have believed, and in fact did not believe, that the statute barred anti-gay discrimination or anti-trans discrimination.  That is to say that the plain meaning at the time of enactment did not encompass that discriminatory conduct (but it does now).  Plain meaning seems to mean the meaning that virtually everyone accepts for the phrase or words.  So the meaning of the statute's plain language goes so far as the meaning accepted by more or less everyone.  At the time of enactment?  Well, the Supreme Court is gung-ho on originalism, at least for the Constitution.  And in recent years has talked a bit along the lines of applying originalism to statutory interpretation as well.  (Not all that salient here, but I do not see any convincing story about why the Constitution would be more sunk in the stone of enactment than a statute, but that is for another day.)  If there is an originalism equivalent for statutes, then the argument about plain meaning of the anti-discrimination statute should fail.  Before the Supreme Court, however, this sort of analysis was shunted off to legislative history, as some sort of alternative to plain text.  Perhaps, although I admit that I that attitude is wrong.  But, to get back to the point, the import of the Supreme Court adopting the argument that the statute encompasses anti-gay discrimination is that the plain meaning of the text is not the plain meaning of the text except at some particular time, evolving over time into new meanings.  Assuming one thinks that the meaning of words and phrases depends on the use and understanding of the linguistic community.  Not only though.  One could take the plain meaning to be clear reference to plain meaning of the concepts, and the plain meaning then changes over time because the understanding of the (unchanged) concepts changes over time.

I think one conclusion from these considerations is that realism is right. 

At Long Last Freedom

Another wrongful conviction story, here.  Thirty-six years in prison while innocent.  In this case, the prosecutor's office did not object or obstruct release.  in fact, the office initiated the process before the court, based on information provided to it by one of the imprisoned, who obtained the exculpatory evidence by way of a freedom of information request for court records. In those records he found proof that the prosecutor hide evidence that a third party committed the murder.  The prosecution witnesses had by then recanted, claiming that their testimony was the result of abusive tactics by the police.  The state's attorney, Jonathan Shoup, lied.  He is now dead, so no possibility of repercussions for his misconduct.  The Baltimore prosecutor Carol Mosby, has an office that looks at old cases that seem questionable.  That is good.  And the office seems to be doing work, as these are not the first wrongfully convicted to be helped by that office.

Too few prosecutorial offices have such a function, too few offices ever discipline attorneys who wrongfully prosecute and convict, and too many offices unreasonably resist efforts to free the wrongfully convicted -- a problem, in my mind, for Kamala Harris's campaign.  Missing from the story is any indication that any of the prosecution team -- the lawyers or the police -- will ever face discipline for what they did.      

 

Hobbesian Laws of Nature

The Laws of Nature look like reasoning norms or rational guidance.  That is, if one considered the circumstances entirely or solely as a rational agent, then the Laws of Nature would be conclusions which guide action.  So maybe norms of practical reason.  But norms so far as they are the inevitable result of reasoning about the circumstances.  They cannot just be good advice or rules of thumb.  Those things are not what one would call laws.  Among other reasons, there is nothing wrong or condemnable in ignoring or not following or even transgressing advice or rules of thumb.  It is not immoral to ignore advice or not weigh it properly, at least absent some pretty special conditions.  The conduct might turn out poorly and in that sense one was wrong, but that is not the right sense of wrong.  It is like betting wrong, not like doing something wrong (immoral).  Whatever it is that may be wrong it is not that not adhering to the advice considered alone was wrong.  Really the only wrong is the outcome, whose status does not change depending on whether preceded by advice followed or not. 

The Laws of Nature also do not look like moral laws.  It may be unwise or imprudent to go contrary to one more of the Laws of Nature, but that would not make the conduct immoral. That might work if there is some kind of moral obligation to live well or to flourish, or more closely to the problem, a moral obligation to follow reason.  But that sort of obligation is obscure.  It cannot be that poor reasoners are by that immoral persons.  I fail statistics so I am evil or vicious? 

The Laws of Nature look much more to me to be rules of reasoning, and if moral laws then moral laws derivative from or based on demands of rationality.  It all looks, again, that poor reasoning is immoral, that failing to see what rationality requires is a moral failing as well as a defect of reasoning. That, I think, cannot be right.  Not being any good at understanding statistics is not a moral failing or a character defect.  Is there some line dividing forms of rationality or forms of reasoning so that some reasoning about circumstances is especially normative or somehow grounds or constitutes moral norms and others are not?

What would be wrong (!) in leaving the Laws of Nature as rules of reasoning about the human condition, or, as I prefer, circumstances? 
 

War of the Democracies

I recently read The Law of Peoples by Rawls.  I should have read it many years ago but I was busy.  In an aside in the book, Rawls mentions the idea from Kant perpetual peace and democracies, that is, democracies do not go to war against one another and engage only in defensive wars.  I recall the notion from Jeanne Kirkpatrick speeches while she was in the Reagan Administration (Ambassador to the UN I think).  I later learned it is a theme from Kant, so one would expect it in Rawls as well.  But I find it hard to parse.  What does democracy mean in this context, and what does war mean, and also what is a defensive war?  On an ordinary understanding of democracy, it does seem that democracies wage war against one another from time to time.  The US Civil War was between democratic states, democracy just means more or less open elections to a big part of the populace.  Maybe we exclude that because the polis was too small?  Then what portion has to be able to vote for the term to apply?  And skip forward in time.  Is war confined to large scale military operations?  How to keep out of the ledger the attacks by the US on democracies in Central and South America?  The coup in Iran?  Not wars because not enough soldiers involved?  Is that elections or referenda on war are needed?  What about colonies?  How does the retention of colonial lands and peoples fit in?  There are lots of questions, and they are not hard to develop. I understand European nations have not gone to war against one another recently (I suppose the destruction of Yugoslavia can be put to one side because it was not a democracy, but then some of the new states look enough like a democracy to count and they had no trouble warring against one another).

As an empirical claim, it looks in poor health.  But assume it for the moment.  What is it supposed to show?  Democratic peoples are peace-loving?  That people do not vote to go to war?  That sort of talk would be digging a grave.  Pro-war candidates win elections.