Ciceronian Review

Forstater

The judgment against Forstater received a lot of coverage.  In the news versions, Forstater lost her job for holding a gender critical view, that is, sees sex as largely biology and women as adult females, for holding the view that trans women are entitled to and should receive appropriate protections and treatment but are not entitled to displace protections for cis women (or women for Forstater).  See, for example, this and this.  There is also lots of political commentary on the decision.  For example, this.  I thought I would read the judgment because reports of judgments and court decision in the US of US legal systems are very often inaccurate, and often do not even state the court's decisions, providing instead summaries of comments on the decision.  Also, the UK system is different from the US systems.  Plus, it is an employment decision and that is, or can be, a world of it own in law.

A couple of caveats:  I do not know much about the structure of the UK legal system and am not sure I read the judgment correctly.  Even the most salient legal standard is more than a bit odd sounding to me.  If that so for a lawyer, what might it be for reporters?

First, Forstater was not fired.  Her contract was not renewed.  That is a quite different situation from being fired.  Second, the case seemed to me to be about tweets. (There was also a letter to her MP. (¶28.)) By which I mean what the Judge decided was based on his analysis of Forstater's remarks on Twitter, not on any other conduct.  She did not, as I read the decision, do anything else; she did not insult client, deny them service, provide lesser services or lower quality services to clients, denigrate clients, etc.  The central question was whether Forstater's views regarding trans women and trans men was a "philosophical belief" within the meaning of the European Convention and Human Rights Act.  To qualify as a philosophical belief (and so be protected expression, as I understand it): (1) the belief must be genuine, (2) it must be a belief and not an opinion or viewpoint based on the present state of information, (3) it must be about a weighty and substantial aspect of human life and behaviour, (4) it must be minimally cogent, serious, cohesive, and important, and (5) must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  (There are some other legal issues, e.g., defining harassment, but I think them secondary and will not spend time on them.)

The core analysis is at ¶¶ 74-93, especially 90 to 93.  What the Judge seems to me to conclude is that, while Forstater is free to campaign against the proposed revisions to the Gender Recognition Act and free to advocate for spaces exclusive to natal women, her view that sex is immutable is not protected and she may not describe trans women as men or trans men as women.  Expressing that view is not protected.  In other words, although Forstater thought that there was no legal compulsion to use the pronouns chosen by one's interlocutor (¶91), she is wrong.  Her offense, then, is that "She positively believes that they [trans women] are men; and she will say so whenever she wishes."  ¶93.  So, in the end, Forstater's belief is not a philosophical belief because it fails condition (5): it is not worthy of respect in a democratic society because it is not compatible with human dignity and conflicts with the fundamental rights of others.  (There is a peculiar passage where the Judge says that Forstater refuses to address people consistent with their Gender Recognition Certificate - 41.) 

One quick note: although the Judge implies that Forstater refuses to accept gender changes in communications with others, e.g., refuses to address trans men as men or trans women as women, that is not what the cited evidence shows.  What it does show is that she thinks that she thinks such address is matter of politeness and not being rude, but is not a legal requirement.

I wonder if the decision is appealable, and to whom.  There is a good deal of discussion of biology, but I can't quite make out why. Biology helps with information, but opinion about information is excluded from philosophical belief.  Which takes me to the part I have the most difficulty understanding -- what a philosophical belief is.  The condition are: (1) the belief must be genuine, (2) it must be a belief and not an opinion or viewpoint based on the present state of information, (3) it must be about a weighty and substantial aspect of human life and behaviour, (4) it must be minimally cogent, serious, cohesive, and important, and (5) must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  I understand what (1), (3), and (4) mean, and see the point of (5), but I have difficulty with (2).  I can't figure out what that is supposed to mean, which I suspect is because I do not know the legal materials behind it.  I do not think it is the ordinary meaning of the words, because that makes no sense at all.  How are beliefs differentiated from opinions, don't opinions necessarily involve beliefs and vice versa?  Why would the present state of information be excluded?  Or beliefs about the present state of information, or what inferences are best drawn from the present state of information?  Sorting out (2) is crucial to the decision, but it quite opaque to me (and I would guess to many in the US).  And there is a practical question -- how far would Forstater have to go in the way of round-about expression is to convey her concerns about the proposed revisions to the Gender Recognition Act?  Is the freedom to campaign left her by the Judge a freedom that has sufficient practical value?   

In the Crossfire: First Reports

The Report by IG Horowitz is quite long.  I have found that LawFare offers reliable summaries and analyses of such things.  There are two posts up there on the Report,  The first, by David Kris is longer at this point.  Sober analysis as they, which means here as it usually does, that what is offered really is an analysis with minimal politics.  He focuses, rightly I think, on the import of the Report for FISA work, and the need for some serious thinking about new guidelines and rules.  The second is by Benjamin Wittes who seems to me a sort of law-and-order guy.  Wittes' piece is the first of several so it will end up longer than the Kris piece.  It too focuses on the programmatic issues.  It seems to me to be clear that the Horowitz Report lays rest to the political conspiracy view of Trump.  True, however, that the Report does not expressly rule out the possibility of a political conspiracy, but after a thorough investigation no evidence of a conspiracy was found.  That should be enough.  The Report identifies a large number of lapses, errors, and misconduct in prosecuting the investigation of the Trump campaign, and some managerial decisions that made things worse, or made the lapses more likely.  Reforms are in order.

Kris offers some comment on the statements by Barr and Durham, both of whom come in for criticism.  The writers at LawFare were moderately supportive of Barr when he was nominated, talking about prior service and professionalism.  I do not think that Barr has lived up to that talk.  He looks much more a political arm of the Trump administration than the head of law enforcement.  As for Durham, I know little and that from recent news coverage.  I have some doubts, but one must wait for the product.  It is disappointing that there is still no report on the FBI leaks re the Clinton investigation.  It is hard to believe that it really takes four years to complete that investigation.     

Earth Colors

The NYT had a story yesterday about race and sex diversity in the Earth Sciences.  The title: "Earth Sciences Has A Whiteness Problem" with a subheading: "Barely 10 percent of doctoral degrees in the geosciences go to recipients of color. The lack of diversity limits the quality of research, many scientists say."  I thought the last sentence especially interesting.  How would a different demography improve the science or the quality of the science?  Assuming Earth Sciences includes climatology subjects, I thought it might be that more attention to local history would be informative about climate patterns, for example.  I read the article because diversity affecting the quality fo the science would be interesting and not something I would come to on my own.  Actually, I read it twice because there was, literally, nothing in the article supporting the notion that the 'whiteness problem' had or was affecting the quality of the science.  Thinking I might be particularly dense on the topic or blind to it in some way I also read through all 247 comments to see if someone had identified what I missed.  No.  There was nothing about the quality of the science.  The closest was the claim that "earth science classes could be enriched by a greater focus on nonwhite and Indigenous histories and voices, given that 'Indigenous people have a unique connection to the land.'”  It is a surprising claim.  I do not think it has much to do with Earth Science really, and certainly not a showing that the quality of the science is affected.  It is an odd statement on its own.  Indigenous people have a unique connection to the land is pretty far from anything like science.  It is not remotely credible that Indigenous people have a unique connection to the land because it is not remotely credible that Indigenous people all have the same connection to the land, or any reasonably identifiable set of connections to the land.  Even as to people doing the same things with respect to the land, like farming, do not have the same set of connections to the land. Indigenous people does not mean much in this context.  No migrations, apparently, until the White people showed up?  No discussion of class in the article, except the suggestion that all White people are wealthy.  

What is going on at the NYT? 

Judge Rakoff has another provocative essay in the NYRB, discussing forensic science in the US courts.  Or should one write "forensic science"?  It covers, briefly, the absurdity of the Mayfield case, making clear just how thin the grounds for his detention were.  It was more than confirmation bias at work.  Or rather a good deal less.  But the overall topic, the treatment of science in the US courts is large and serious topic.  There is greater focus on the use in criminal cases.  It creates a more stark moral picture to have people (men, mostly) off to prison for decades based in large part on ridiculous or dishonest presentations in court.  There is no science of blood spatter or science of bitemarks, TV notwithstanding.  The misuse of evidence like DNA or fingerprints is not of the same order, but it is certain that the discussions by witnesses are not just false, but structured in ways that deeply corrupt, by which I mean more or less intentionally obfuscatory, inaccurate, and misleading.  The story is no better in civil cases.  Experts are vetted to give the right outcome as part of deciding to hire, come to court with the predicted testimony and rely on methods that are in no way science.  It is just that money is what changes hands, not freedom.  

There is plenty of blame to share.  Lawyers do what they are expected to do, paid to do, and what the rules of professional conduct direct them to do -- look to the interests of their clients.  That is the procedural structure.  It is useless to ask lawyers to act in a different way.  Still, that does not get one out from under the tent.  Lawyers can, because I know lawyers who do, try for experts who have a reliable methods, are part of properly scientific or expert social structure (in other words, are actively involved in the relevant culture and practice).  On the criminal side, the economic constraints alone make the whole conversation painful.  Criminal defense just does not have the resources to mount challenges to prosecution experts, let alone to present experts of their.  The whole process of the criminal law system is, well, dismal to contemplate.  

One link in the system could be improved: the judges.  They could start learning some of the relevant statistics and science, they could have schools on social sciences.  I do not think it will happen any time soon, but these things are possible.  And necessary, because it is judges who decide what is admitted to trial.  Far too many judges have no understanding of the materials from experts they admit.  Rakoff has good discussions of these issues.  There is one additional point I would make here -- another problem is that the courts create fake facts.  Some analysis is admitted, the judge says it is good enough, and then that is set forever.  Two examples, one has a little light and the other not.  Shaken baby syndrome and fingerprints.  For some years testimony that an infant was killed or injured because it was shaken was taken as established based on inferences from spinal and brain injuries.  But over time the medical science changed  (or more accurately, some science developed), establishing that the inference just was not substantiated, was not reliable.  Or recovered memories.  And some courts stopped accepting the testimony.  On the dark side, fingerprint testimony is accepted everywhere even though it lacks a reliable scientific foundation.  The probabilities are made up, the standards for matching are no more than "connoisseurship". 

Courts should engage their own experts more.  The standards for admissibility ought to be tightened.  I should be the next Doge.

Morales

The coup in Bolivia appeared and receded from the news in quick time, if not double quick time.  A flawed election, but no evidence that the flaws affected the outcome, the appearance of far-right figures taking over the government were not explained in any real way.  What followed was the violent suppression of protests and suppression of MAS, a cabinet stocked with questionable figures from the fringes.  None of the major US papers really made any effort to cover what was happening once Morales was forced out.  The coverage of protests against the coup was extremely skimpy compared to the coverage of the protests against Morales, though in fact the seemed comparable in size and comparable in popular support.  There is a good account in the LRB by Tony Wood.  The NYT did, I think, a particularly poor job.  The stories relied on quotes and descriptions from anti-Morales exiles in Miami, a tactic that is too worn and too encumbered by a miserable past of apologies for right-wing bloodletting.

There are serious questions about the overall direction of MAS in the last years, particularly an over-reliance on extraction for economic development.  But the improved economic and social circumstances of the great portion of the Bolivian people is tough to overcome.  Particularly, I think, given the way the same papers are indulgent toward Xi. 

There are promised elections to come early in the next year.  It remains to be seen if the elections will be anything like fair, or if they will instead be subject to violence and intimidation aimed at MAS. 

Still Nothing

Recall the 2016 election campaigns?  Recall the leaks from the NY FBI office about the investigation of Secretary Clinton's private server and email practices?  Recall that the FBI Office of the Inspector General was investigating those leaks?  Wondering when we will get a report about those activities, where the leaks came from, whether laws or regulations were violated in the leaking?  No need.  The investigation by Inspector General Horowitz is still going on. One might see this as an IG failing to avoid politics, one might see it as the usual inability of police agencies to properly investigate internal mischief or misconduct, one might see it as the IG wanting to stay employed.  It should not take 4 or 5 years to complete this investigation. 

We already have, a few years now, the results of the investigation into Clinton's handling of email and her private server.  No crimes involved.  And certainly bad judgment and bad advice.  (One aspect that has always bothered me is the absence of a serious response to destruction of emails, private or not.  No one got so much as a day's pay docked for that.) 

The failure of the FBI to police itself to any reasonable degree is part of a more general problem of failures of supervision of police and prosecutors.  

Modi

India is in trouble.  It is about to adopt an immigration law directly and incontestably aimed at its Muslim population.  The proposed law provides for immigration of persons who are of a religion other than Muslim.  Hindus, of course, Buddhists, Christians, etc., are fine, but Muslims need not apply.  It is a long-held aim of BJP, politely described as a Hindu-nationalist party, but really something worse.  It is clear now, as it  has  been for years that the general program is to rid India of Muslims and turn it into a monolithic Hindu state.  This is a loss for democratic regimes.  The unsettling fact is that authoritarian regimes are increasing and increasing in power, economic and military.  India is moving away from the Euro-American models of democratic government, onto the path taken by China.  

This legislative development follows on the Supreme Court decision approving the destruction of a mosque and the utter failure of the government to react to mass riots that resulted in thousands of murdered Muslims.   (Sure, the Court said the government should find some other piece of land somewhere else for the Muslims to build a mosque.  At least no special tax on the Muslims to pay for the Hindu temple.)  The imposition of martial law on Kashmir and suppression of local government and politics is of a piece. 

Sad.

Prosecutors Are Not At Fault

Yesterday there was an article in Access to Justice360 about prosecutorial misconduct.  You may remember the Flowers case before the US Supreme Court last year -- Flowers had been tried and retried five times because of prosecutorial misconduct, e.g., illegal jury strikes, withholding evidence.  The prosecutor may get yet another try because, so far, the state court system has done nothing to remove him from the case.  The story of course is the absence of supervision of prosecutors, the absence of any effective disciplinary system.  It is not a new story.  

in the article, the one paragraph that most impressed me was this:

"You can't have the conversation about prosecutorial misconduct unless you're talking about ineffective assistance of counsel, and you're talking about judicial error," he said. "If a judge allows something to happen, and it's later called prosecutorial misconduct, well then, you have to ask yourself, why did the judge allow it? Why did the prosecutor think it was OK? In a lot of cases, you don't even have a defense attorney objecting to it."

Quite the defense -- those guys over there did not stop me, it is their fault!  The essence of the argument is that prosecutors do not engage in misconduct, it is the bad defense counsel who does not object and the worse judge who lets the prosecutor do wrong. Prosecutors can't be expected to be good on their own.  I know it is a line of defense frequently found in criminal cases and accepted by absolutely no one.  Also, in private civil litigation, it is an argument accepted by no one.  But for prosecutors, it is too much to ask that they comply with the rules of professionalism and rules of court on their own. 

The story goes on to discuss some offices which have taken seriously the obligation to correct misconduct.  But the number of comparatively small: 58.  In the country.  58.  Poor accounting practices that cause no actual injury merit sanctions, but wrongfully convicting someone by withholding evidence, intimidating witnesses, etc., elicits nothing in most of the country.     

When Their Lips Move

they lie.  Uigher were sent to vocational schools and have now all graduated.  

Well, at least the government did not kill all of them. 

Impeachment Is Not About Crime

Some law faculty talk about impeachment as requiring the commission of a crime, with the problem being exactly which crimes might serve as the grounds for impeachment.  Blackmon, for example, reject the idea that there should be any basis other than violation of the criminal code (and only some select part of the criminal code) as grounds for impeachment.  His concern is that impeachment based on abuse of power fails to give notice to the President of what might be an impeachable offense, and unduly politicizes impeachment.  The latter argument is, I think, disposed of by Mark Graber.  Graber argues that much of the history of impeachment proceedings (at least for political offices) was long ago fully politicized.  The votes in the House and Senate regarding Jackson, Nixon, Clinton were highly partisan.  That is not changing.  The process, like almost everything about the Constitution has tenuous connection to the conception of the Constitution and its processes when it was adopted.  Politics is there to stay. 

Blackmon's argument is that  impeachment should be grounded in the criminal law so that the President has adequate notice of what conduct may be impeachable misconduct.  That seems to me a somewhat odd approach to impeachment.  Two suggestions:  the criminal law approach advocated by Blackmon means that he thinks that impeachment is improper (and inappropriate to consider) when a President does any of the following sorts of things, none of which are (I think) crimes:  directs the FBI to investigate a political opponent; not to enforce particular laws or not to enforce laws which may benefit or protect some group or person out of favor; redirect funds intended for the welfare or education of a particular state to other uses, depriving the state of those funds, refusing to declare emergencies in states dominated by political opponents; directing the IRS not to investigate or prosecute friends or allies; impound the passports of disfavored persons; refuse to enforce environmental or health standards; directs the Justice Department never to investigate her or himself or family; and so on.  That such conduct might violate some statute does not make it a crime. Why would conduct of this sort not be enough for impeachment?  I see nothing in Blackmon, or Turley, or their colleagues that explains why perjury in a private lawsuit is impeachable but massive abuse such as the preceding is not. Blackmon says that there is not enough or clear enough notice.  I find that deployment a little disingenuous.  I have a test for such arguments.  Is there less here than would satisfy an indictment for distribution of illegal drugs, or less than would satisfy for asset seizures?  No.  What is at work is that as social standing rises, so does the standard for enforcement, a tendency I do not care for.  Or, to engage more directly, the idea that an impeachment based on abuse of authority would strike out of the blue is hard to believe.  That the President would feel inhibited and frightened to act because he or she might be impeached for abuse of authority is, in a word, ridiculous.  There is no evidence at all for such a view. 

Imagine what takes little imagination - an executive fully devoted to a strong unitary executive theory (in which the President controls all executive activities exclusively) along with a strong departmentalism so that the executive may act on its own views of the Constitution along with a particularist theory of standing and remedies so that each remedy in a lawsuit must be for just the individual plaintiff (so no nationwide class actions, no nationwide injunctions).  Blackmon and Turley would leave us with nothing in such circumstances but to wait for the expiration of the tyrant.