Ciceronian Review

Rudy At Half-Time

Rudy Giuliani has been suspended from practice pending the completion of the a disciplinary investigation.  The suspension is based on Giuliani's knowing misstatement of fact to a court and many third parties and on knowing misstatements of facts to third parties made during the course of representation of Trump.  The temporary suspension is based on uncontested facts, i.e., Giuliani offered no basis for treating the allegations as disputed.  Page 5.  Bare denials do not create a dispute.  Page 19.  He had the opportunity to offer evidence that would counter the elements of the charges, in particular evidence that his statements were not knowing misstatements.  Giuliani chose not to.  What he did instead was aver that there was such evidence, somewhere or other, but not offer it.  The tribunal treated those claims as they should have, as not responsive.  With the factual allegations uncontested, the question was whether the requested temporary suspension was warranted.  Not having any contested facts made that determination a good deal easier.  Giuliani is suspended, but it should be noted that the proceeding is not concluded.  He can come back to the tribunal with the evidence he says exists a so challenge the charges against him. 

There is commentary that the disciplinary proceedings, including and in particular the temporary suspension, violate Giuliani's free speech rights.  See Blackman and Green & Roiphe, for examples.  I do not think that argument succeeds, and I am unsure the advocates see the implications for Giuliani's defense should the first amendment argument carry forward.

There is no significant doubt that the speech of lawyers in the context of representation of a client can be controlled, that their speech rights are limited in this context.  It is mostly a matter of litigation (although the rules apply across all forms of representation).  And here at least one court appearance is involved.  That count asserts that Giuliani knowing made misstatements in an oral argument (again, uncontested).  There is no doubt at all that this conduct is subject to discipline, both by the judge to whom the statements were made and by the appropriate bar disciplinary process, independently of any sanction or discipline by the judge.  Lawyers do not have as a legitimate option lying to the court.  It is likely that the criticisms of the temporary suspension rest on the other allegations, but one final note on this point.  That Giuliani later corrected the misstatements is only a mitigation.  the offense is knowing misstatement, i.e., lying.  The violation is completed when he lied, and he is properly subject to sanction whether he voluntarily corrects the lie or not.  There is no first amendment issue involved in discipline for lying to a judge during a court proceeding.  The rules of civil procedure and inherent powers of the courts have long been immune from that sort of challenge.  Indeed, there could not be a rule against perjury if lying in court was acceptable.

So limit the objections to temporary suspension for lying to third parties.  (Actually, those lies are mostly, but not exclusively, the lies to the court which were publicly available during the hearing and heard by several thousand people.)  It is important to keep in mind here that the it is uncontested (at this point) that Giuliani lied, that is what knowing misrepresentation is, lying.  That takes it out of normal advocacy, expressions of opinion and puffery that is a normal part of litigation.  Giuliani asserted that, e.g, more absentee ballots were returned than sent out, and that George Foreman was a listed voter.  That is not saying 'my client is innocent', it is asserting as facts things known to be false.  Now, true that civilians (for lack of a better word) can make such statements without legal repercussion. And lawyers too, when they are acting as civilians, can offer up such assertions.  They are as free to lie as others when they act as civilians.  But Giuliani was not acting in a civilian capacity, he was making these statements as part of and in the course of his representation of Trump.  That also is not contested, at least at this point.  Constraints on the speech of professionals acting in that capacity are commonplace and widespread -- consider the regulation of speech of doctors in the context of reproductive health treatment and consultation.  

Blackman purports concern over the scope of 'in the course of representation', that the phrase may be or is too vague for disciplinary purposes.  That seems to me an ill-considered critique.  The phrase is not unique to this context.  The scope of attorney client privilege is partly defined by or responsive to just that delineation.  Privilege attaches to communications in the course of representation (other factors are needed as well).  There is body of cases and law describing what the phrase means in that context, so we are not at sea with respect to 'in the course of representation.'  What lawyers say and do in the course of representation is regulated in other ways.  A lawyer may not make statements contrary to the client's interests, the lawyer may not disparage the integrity if the client, in the course of representation, or disclose confidential information without permission of the client.  These do not seem to be serious First Amendment problems.

If these restrictions are problematic, what to make of attorney client privilege?  More specifically, if Giuliani's statements at issue here were not made in the course of representation, then he was not representing Trump when he made the statements.  And strongly suggests that Giuliani and Trump do not have an attorney client relationship, at least as to these statements and Giuliani's doings at the time.  So communications between Giuliani and Trump are not privileged during the period, at least some of them.  That is an outcome that would be surprising to Giuliani, to Trump, and to the critics of the temporary suspension.

Whispers Only Allowed

Commentary on Mahanoy Area School Dist. v. B.L. continues to focus on the vulgarity" of the woman's statements, and not the substantive content.  See, e.g., Dorf.  The oral argument before the Supreme Court did not much concern the use of "Fuck".  It focused on criticism of a school and its personnel and how the criticism was voiced.  As it should have been.  I cannot believe that a Cheer Squad member would be suspended for 1 year because she said "Fuck" within hearing of another member of the squad. It is not credible to maintain that there was any disruption of school or negative effect on team solidarity or cohesion because of the use of the word.  Usage is entirely too common for that to be sustainable.  Would the school have done nothing if only she had expressed her frustration and disappointment more politely?  The argument was about the reach of school control of speech, and the argument was properly about how far outside a school itself its control should reach.  And Cohen made clear a long time ago that the mere presentation of the word is not sufficient basis for discipline.  This thought is also supported by the arguments in favor of the school, which had to do with pervasive criticism -- students criticizing an administrator daily in online media.  One interesting thing about the responses to the case, before and after the decision, is how far across the political spectrum can be found a rejection of Tinker.  Students do not shed their rights at the school house is great left back in opposition to the Vietnam War, but not now.  This case was about a private statement about something important to the student.  Is it a good idea to set the boundaries of permissibility by the size of the audience?  Or by whether third parties spread the message?  She is fine to say what she wants to six friends in person but not.... 

An I For An I

In deciding Fulton the Supreme Court sidestepped both the question of whether to overrule Smith and how far accommodation of religious beliefs in conflict with anti-discrimination policies may go. In summary, the Supreme Court found that the Philadelphia policies and laws were not of general application, because they provided for exceptions, and so the requirements of Smith had not been met and the case could be decided without addressing the standing of Smith.  Catholic Social Services won, at least for the moment.  The litigation is likely to continue in another form, as one response Philadelphia may make is to amend the relevant statutes and policies to eliminate exceptions, thereby curing the lack of general applicabiity of the laws.  That route would result in another suit and the Supreme Court facing directly whether to preserve or overrule Smith.  A reason not to go that route is that there are already three Justices prepared to overrule Smith, and another 2 or more thinking about overruling Smith.  My impression is that, when the question comes to the Supreme Court, Smith will be overruled. Philadelphia then ought to take the loss and let others litigate the status of Smith. The result in Fulton surprised me.  I thought that the Court would both address Smith and either find for, or suggest a method of analysis favorable to, Catholic Social Services. That did not happen, obviously, but there is writing on the wall. 

The ACA decision (California v. Texas) took up most of the commentary on the decisions handed down Monday.  That seemed to me an easier case, indeed, one that would not have made it to the Supreme Court had the lower courts not be so ideological.  The technical nature of Fulton also helped lower its profile, but the problems the case presented are not going away.  The conflict between religious belief and anti-discrimination laws and regulations is not solved.  The apparent commitments of a majority of the Supreme Court look to me to invite further litigation, that is, the Court will overrule Smith and will try to work out means by which there will be greater accommodation of religious views as exempted, to a limited but real degree, from anti-discrimination law.  Stay with CSS as an example.  It is not a simple anti-gay bias that is at work.  CSS serves unmarried gay men and lesbians along with their heterosexual counterparts.  (So the Supreme Court says anyway.). CSS draws a line only between married same-sex and married different-sex couples.  Married couples is the locus of conflict here.  CSS has religious commitments concerning the nature of marriage that entail that preclude treating same-sex marriages as equal with different-sex marriages.  But as it willing serves unmarried persons of various sexual orientations, it is not really true that it is excluding or denigrating gay men or lesbians.  If the analysis of Bostock gets applied that fact may not matter because denial of service to same-sex married couples would seem to be in virtue of sexual orientation of the married couple.  But Bostock does not yield a clean answer because it is, after all, just within the set of married couples that different treatment arises.  I.e., it is not solely sexual orientation that matters, as was the case in Bostock. 

For many, any exemption would be anathema, i.e., any exemption will denigrate gay and lesbian married couples, and so gay and lesbian persons.  They would be an affront to their identities.  And the absence of any exemption denigrates the adherents to the Church.  CSS is not a business; it is part of the religious practice and mission of the Church and its members.  Forcing them to abandon the mission denigrates the importance of religious identity, denigrates beliefs fundamental to identity.  Which I carries the day?  I am not at all certain.  Tentatively, my thought is that the accommodation and exemptions is the better route.  In Philadelphia, there are 21 or 22 other agencies involved in offering credentialing to prospective foster parents.  I think all of the other agencies work with same-sex married couples, so there are lots of alternatives to CSS, and its presence has no material effect reducing opportunities for same-sex couples.  Certainly the continued presence of CSS doe snot impose an undue burden on prospective same-sex married couples with to become foster parents.  Permissible obstacles to abortion are higher.  Pharmacists, who are engaged in business, are able to opt out of service involving contraceptives.  These too involve rights grounded in the Constitution, and yet exemptions and accommodations are to many quite acceptable.  Tentative thoughts.

It Is Everything

Prof. Fraser's argument is, in part, that there are interesting and serious losses when literature is dominated by white men, insights are lost (or never really offered).  (As already noted, it is hard to credit the white part unless the discussion is just of the UK or the USA.  I rather doubt white men are dominate in the literary production and consumption in China, India, Japan, etc.)  Her observation is, I think, correct.  A wide range of sources is more likely to generate information - here, expressions of and insights of a wider variety of people or characters.  I have found that true for myself, which is, to be honest, not much in the way of evidence.  

Still, it is not clear why that is an argument for dominance being an injustice.  An epistemological shortcoming, problem, deficiency, I agree.  We do better with a wider range of sources (all else being equal), and so there is, on this basis good reason to read a variety of authors, and authors with a variety of backgrounds and identities.  For convenience, we can rely on broad categories, as we do often in a variety of contexts.  So more women writers, and more writers (for folks like me) from other parts pf the world, and various social and economic classes.  But am I committing an injustice if I do not widen my reading?  Assume the questions from the prior post and move now to the question of what the injustice is or would be.  I think I need to find something that is not merely the instantiation in the production of literature of the general social and economic structure.  I do not think Prof. Fraser is arguing that the kind of late capitalism we are living in the US and UK is unjust -- well, maybe she is but focusing on literature if a peculiar way to go about it.  A change in this aspect of the economic world is not likely to have the right kinds of impact to alter the wider and more robust other areas of the economic order.  It is far stretch from more women writers to adequate child care and improved economic and social equality broadly.  One might make that sort of argument about integration of the upper reaches of corporate worlds, although I doubt it matters greatly that the demographics of exploitation alter.  Maybe, but even so assuming does not do much for the issue here.  It could be that Prof. Fraser is using the literary world as an example, except she never says that.

What sort of injustice is it that Prof. Fraser identifies?  Epistemic failures are moral failures?  Not doing the best one can with respect to imaginative empathy with others is a problem of justice?  I am stumped here.  I think a significant part of the reason is that I have difficulty with the notion that everything is a moral issue.  That disparities of every kind are problems for morality and/or justice.  Failing to fairly consider a manuscript because of demographic features of the author is sometimes a question of injustice.  But it is not always.  I can see a failure to fairly consider a manuscript for a book on modal logic from someone who lacks even a high school diploma would be a disappointment to the author, but, given ordinary constraints on time and resources, not an injustice. 

Duty to Read

Rachel Fraser has published an interesting essay, described at Daily Nous this way: What’s so bad about the literary dominance of white men? The essay (in New Statesman) has a slightly different title: Do We Have A Duty to Read Women Writers?  The second is, I think, better -- more accurate about the essay and a lot more interesting a proposal.  Fraser does not quite conclude that we have such a duty, but doe slay out a case for thinking that there is some injustice in the current state of literary affairs, understanding 'literary affairs' to mean the USA and UK (and maybe the EU?).  She does not say much and cites nothing showing white men dominating literary affairs in other parts of the world, e.g., India, China, Argentina, and so on.One could go on about that sort of oversight or gap, but it is not what I am interested in, which are two topics.  What is a duty to read some set of authors?  How widespread is an inability to name authors who are not men or not white (an opening gambit in the essay)?

A duty to read works by women....is there a duty to read at all?  That caused me to stumble.  When I stopped reading for some months, was I doing something immoral?  Would it matter why I stopped reading?  I suppose if there is such a duty, then, say, loss of eyesight might excuse not reading for a bit (while developing other skills for accessing literary works).  Would a challenging emotional event be sufficient excuse, or just fatigue?  It seems odd that one could a escape a moral by fatigue.  How serious a fatigue would it need to be?  Is the duty to read women at the same time a duty to buy books (or other works) by women from bookshops, etc.?  I mean, new volumes, is the duty one to buy books or read the books, or both?  I think it has to be one of the last two for Fraser because part of her case for a duty is an argument about the economic disparities of men and women authors.  (That part of her argument would apply quite broadly, in support of duties to buy motorcycles designed or manufactured by women (or maybe just sold by women?), clothing designed by women, restaurants owned by women, fly  as a passenger in planes piloted by women.)  My point is that if there is such a duty, it is pretty complicated duty to delineate.

If there is a duty to read works by women, what it call for us to do?  Read just anything written (or published?) by a woman?  Do I have to read Jane Austin or Virginia Woolfe, or is it enough to read Rita Mae Brown or Donna Leon?  (The economic part of Fraser's argument suggests that Austin and Woolfe are not in the game because no money flows to them from book sales.) 

I do not think, however, that there is a duty to read nor a duty to read literature by women.  I do not think there is a duty to buy art, or to listen to music (or particular sorts of music), or a duty to dance for that matter.  I do not have to attach duties to these activities to think them valuable or to think that they deserve social support, including state support.

Difference

The Utah Bar collects demographic information as part of its annual fee payment process.  The announced purpose is an interest on the part of the Bar Commission (although I think the page uses the term "Bar Leadership" instead) in how the Bar membership reflects or fails to reflect the demographics of the state.  Quite usual, and so too are the categories, which are just the census categories.  The Bar Commission wants greater demographic diversity in the Bar and the Bench, along those lines anyway.  There is evidence that defendants in criminal cases have more confidence in the process when the judge appears similar to the defendant.  I suppose there is something similar going on in civil processes as well.  So one of the ideas is to shore up confidence in the legal system through changing the appearance of those in the power positions in the process.  I wonder whether the effects remain when the defendant learns the judge is a former prosecutor.  That history has an effect on the performance of the judge and how the judge will treat the defendant.  Maybe, maybe not; I don't know of studies on such topics.  My experiences in court led me to believe that prior practice was more important that race, gender, sex, ethnic identity, sexual orientation.  it was almost always trouble when a complicated financial case was before a judge whose prior practice was felony prosecutions or worker compensation. I never saw much difference on other dimensions, but then this is just anecdote.  It is possible I was blind to the differences or that the sample was too small or to subtle for me.  When I have talked with the Bar President about such things, she points to studies showing that better and more creative decisions come out of groups with diverse membership.  The ones I have looked at are not so helpful.  They are studies of business decision-making in medium and large companies, and concern problems where it is possible to make an ordering of decisions.  I don't know quite how that works for a courtroom, where there is only one judge.  There are some studies of jury decision-making claiming the same thing.  I am unsure how the assessments are made however.  Is it real cases that are looked at, or is it the abbreviated and tailored panels of jury advisors?  Presumable the latter are sufficiently reflective or what real juries do that there is a science involved.  One hopes so.  

Reflective of the demographics of the general population (of the state, I suppose).  Not too accurately reflective.  Do not want judges who did not go to college or law school.  Do not want people with substance abuse issues on the Bench or in the Bar.  And religious affiliation, that also is not a category the Bar Commission cares to collect information about, nor is political or social affiliations, or economic status.  Or background and identity that is more fine-grained than sexual orientation of non-Hispanic white.  It is curious kind of essentializing, or maybe just looks like essentializing.  There are lots of ways of being an outsider not captured by the survey.         

Poppies Are Red, And So Is The West

An essay by Justin E.H. Smith reminded me of a question I have puzzled over for several years. It is a terminological questions, how to refer to some groups. Smith’s essay is about that in part, although more focused on the substance of what ties the group(s) together. It is about people who want to, and quite often succeed, in imposing moralistic standards on figures in arts, history, politics, and generally in the public sphere. Smith talks in terms that look back to Stalin, in particular, and the recent history of Russia and eastern Europe. He makes comparisons between the present trends in attempts to silence and degrade people who do not meet certain current behavioral and thought standards. In other words, the cancel culture of left and right in the US (and elsewhere).

That experience of censorship and control was directed, more or less, from the center, the governmental center. Stalin and his colleagues heading the state issues directions and orders. The efforts to crush variety in thought and bind expression to a narrow range of approved methods and topics came from the center. Enthusiastically applied, no doubt. My understanding, which is not that of an expert, is that one can describe it as state action even if it is often quite hard to see it has a legal regime. There was law, or anyway, statutes and a constitution, but realistically they had little to do with the goings on. The various police, secret and otherwise, acted on directions from above. I think that is accurate enough for the moment.

I think Mao’s Red Guard and the Great Proletarian Cultural Revolution is a better analogy. First, why, and then some reservations. The Cultural Revolution involved mass movements in battle with one another, each grouping imposing its standards on all within their reach. Murder, torture, beatings, indoctrination, humiliation, dispossession, and exile, etc., meted by groups which were more or less self-directed. Faction against faction, Red Guards against Army, etc.

Both sets of experiences are, in fact, distant from the issues in the US. That is a point Smith makes quite directly and eloquently. At its present worse, cancel culture is not murdering people, or dispossessing them of home and property, exiling them to remote regions to struggle for food, sending them to prisons to be worked to death. It is now here only a faint resemblance. One hopes that the faintness will fade, but even as it is it is not the state terror of the USSR or its client states or the terror of the Cultural Revolution. But they share some features -- a rejection of forgiveness or error, imposition of rigid moralistic standards whose violations, however remote, are unforgivable, and intense drive to create a monolithic cultural landscape, contempt for difference or dissent.

How to refer to them? An American Red Guard, a Stalinist tendency?

I wonder if my preference for analogy to the Red Guard is any better? I wonder if these comparisons are so overwrought as to be self-defeating. A point Smith makes, I think, is that whatever the terminology or descriptors, the current status if not in fact much like Stalinism or Cultural Revolution, there is not the blood, murder, not the risks, etc., and it is wrong to pretend or suggest otherwise. That is right. But how to describe or refer to these tendencies?