Ciceronian Review

Distance

The issues of (meaning about and related to) immigration and refugees continues, obviously, to bedevil the EU and USA, and Australia, and so on.  For many, the presence of immigrants and refugees calls for theories of moralitry and politics that extends protection to these groups.  Countries are not the sort of thing which can justifiably exclude newcomers as it chooses, but must find ways to accommodate and protect refugees.  The problems are pressing because the numbers are large.  An common idea is that the only status that really matters is that of being human beings.  It is not only cold or heartless, but immoral or evil not accommodate refugees in whatever numbers, to integrate into society.  Crooked Timber, for example, has posts along these lines with some regularity. It does not really matter where one is from, where born, etc., one's claims on a society, once one is present or sufficiently near, are the same for all within the circle, the physical circle. It is an arena in which the notions of right are to be grounded in being human.  The others, they do not matter as much or not much at all.

Distance is in a curious role in these lines of thought.  One the one hand, place is not important.  That this one has been in a place always gives no moral advantage over that one who has only just come seeking entry.  It is curious that the physical distance of various people governs the moral and political relations. Those near at hand, refugees, have greater call on concern and resources than those far away, those still in the place the others fled.  No claim that latter are better off than the former, or that the former are more virtuous than the latter.  Maybe more deserving, but it seems odd that desert would tie top the distance traveled.  Distance traveled hardly seems a morally compelling category.  But how else to distinguish the former from the latter?  On the other hand, social distance is to be ignored.  That those at hand, have limited social connection to those already present is wholly discounted.

Perhaps there is something to Hume's account. 

 

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?   

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.         

Turlock - Sort of Something

I watched the opening statements of the law professors before the Judiciary Committee.  The oral presentation of Turlock was a bit odd it seemed to me.  I was not sure I understood what his position was.  I thought is a bit too informal for the context (I think Karlan made the same sort of error -- testimony is not a classroom lecture.)  Was he saying that there was no basis in the Intelligence Committee Report for impeachment?  Or was it that the effort now was premature, that further testimony and evidence would make the case better, or that it was all a waste of time? I downloaded the written testimony and have made it about half way through. It looks like he was saying two main things.  That there is a possibility that an abuse of office or abuse of power article could be presented, but not yet, and that the other proposed grounds for impeachment are not adequate for an impeachment because the acts do not clearly and incontrovertibly violate existing criminal law.

The abuse of power claim is not made out because Congress withdrew its subpoenas too quickly and has not pushed the subpoena issues before the courts.  If Congress stays with the subpoenas, the courts may rule for it and then documents and witnesses will be made available.  From them, a case may be made.  I think part of that is right.  I agree that Congress should push its subpoenas, should not have withdrawn the subpoenas for various administration and former administration witnesses to appear, and should have continued the fights for documents.  In some ways, that set of battles is more important than the impeachment because it is the way to get more clarity about the oversight powers and investigative powers of Congress.  I think letting them go is a long-term error, or loss.  Trump's and Barr's views are wrong and dangerous, they embody a contempt for democratic processes and contempt for Congress.  But that is all I can agree with in Turlock.  The rest of his argument, which is by far the greater part, seems wrong and wrong-headed.

The details are not what I want to discuss.  I think he is wrong on what the evidence is and means, but the underlying approach is where he goes awry.  Turlock admits that at the time of the adoption of the impeachment provisions, there was no federal criminal statute, or even yet a federal common law of crime.  English law, which is the general source for the provision was largely common law.  Common law crime is not definitionally sharp.  There are cases, usually not using exactly the same definitions or interpretations.  If the impeachment provision of high crimes and misdemeanors is to be understood relative to criminal law, then, for Turlock, we look to the definitions in the current criminal code.  I don't think that makes sense.  The phrase has no special meaning in the US criminal code.  There is no section High Crimes or High Misdemeanors.  The understandings of that past eera are not precise and do not build on careful definitions.  For example, is there evidence of bribery in Trump's conduct?  Within the understanding of then or of now?  If we look to current federal criminal law, the answer is that it is close and there may not be -- that is what all the talk of quid pro quo is about.  The Supreme Court decided a few years ago that the federal crime requires a specific quid pro quo -- lavish gifts in return for favors is not really enough.  But it was for decades before that decision.  So, if Turlock wants us to care about the history of impeachment processes and cases, and the history of enactment of the provision, why does he want us to abandon the historical work when it comes to understanding what crimes and misdemeanors count?  

As to the 1half of the piopulation1 will be mad if the impeachment proceeds is inane.  No one will be mad if the impeachment process stops now? Or does that half not matter?  Was half the population upset about the proceedings against Nixon?  Well, up to the day he resigned it was pretty close to half who stood with him.

 

 

Just Because It Is In The Constitution Does Not Mean It Is A Real Right

The Utah Constitution has a citizen initiative provision, Article VI, § 1(2)(a). The initiative right is may be exercised “under the conditions, in the manner, and within the time permitted by statute.” Naturally, the Legislature has enacted statutory conditions on initiatives, which include limits on who may collect signatures, how many signatures must be collected, the geographic distribution of the gathered signatures, and a mechanism for people to remove their signatures from the petition. Utah Code § 20A-7-201 et seq. The signature pockets have to be submitted to the county clerk, and signature withdrawals also have to be submitted to the county clerk. In County My Vote v. Cox, both sides submitted packets of signatures and withdrawals to the Lieutenant Governor “en masse”. Nothing in the opinion explains why that works. Shouldn’t the packets go to each county clerk and then the Lieutenant Governor? That is not the interesting part of the Opinion.

There is a right in Utah to remove one’s signature from an initiative petition, as there is a right to sign in the first place. This is a little peculiar. The right to sign a petition is part of the Utah Constitution -- the provision on citizen initiatives entails it, if not embodies it. It is a “constitutionally guaranteed right.” But that provision of the Constitution is wholly silent on a right to remove a signature. Nothing at all in the language implies any such right. The right to withdraw support is a creature of court decisions, and so,, in a place like Utah should not be on par with a right found in the Constitution.

Restrictions on the initiative process, like the geographic distribution and removal of signature process, are subject to judicial review, but what sort of review? Well, it is Utah, and in Utah the Legislature and the Supreme Court are not inclined to think the people of the state should have much say in its running. Here is the standard for review of the “constitutionally guaranteed right”: The review “’bears a resemblance to our traditional minimal scrutiny review’ but requires a somewhat “more exacting analysis.” What does that mean? Don’t ask the Court, as it won’t say. You can go back to Cook where the line seems to be any restriction will be fine so long as there is “some meaningful channel” for the people to act, which in turn means the judiciary should act only if the restriction “abrogates the reserved right of the people.” Absent a demonstrably complete bar on initiatives, anything goes it appears, because “undue burden” remains unexplained. Including whether it means anything other than the Legislature has effectively foreclosed any real possibility of citizen initiatives: deference to regulation “except in circumstances where such regulation forecloses any meaningful possibility for the people to exercise the [initiative] power.” Some fundamental right. Redolent of the Slaughter House cases. I would go with the dissent and the concurrence.

The case is Count My Vote v. Cox, 2019 UT 60.

Good Faith For Companies, Not Employees

The Utah Supreme Court does not much care for employees.  In Vander Veur v. Groove Entertainment, 2019 UT 64, the Court decided that a sales rep on the covenant of good faith and fair dealing is implied in all contracts except at-will employment contracts.  There is a long line of cases by the Supreme Court and the Court of Appeals holding that a covenant of good faith and fair dealing is implied in all contracts   St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194 (Utah 1991).   The covenant is a promise that each party will not intentionally or purposely do anything which will destroy or injure the other party's right to receive the fruits of the contract.  Well, now, not so much for employees.

Vander Veur had a contract to provide sales services to Groove, which provides television services to hotels.  Under the contract, Vander Veur got a commission for Qualifying Sales.  He was fired in June 2013, but before the firing date, Vander Veur had obtained commitments for six sales, all of which were completed (i.e., installed and operating with appropriate margins) within three months of firing.  In Spring of 2013 he also worked on a deal for a contract with Grand America (along with two others) for which a substantial bonus (rather than commission) was expected, which was installed before he was fired.  Groove did not pay him for any of these.

As to the first three, the Court says "too bad, buddy, the contract says you are at-will".  No covenant allowed.  Because he was fired  before the three were installed, he gets nothing.  Because Vandeer Veur was at-will, the company can fire him immediately before his commissions would be vested, and there is no remedy, because there is no breach.  Of course, the Court is not saying that an employer has no duty of good faith toward at-will employees:  "At-will employers have the authority to terminate employees at any time -- for any reason or for no reason at all -- and still be acting in good faith."  Which makes no sense, and is not even grammatical.  How could an employer fire an employee in bad faith under this case?  So, despite prior cases saying the covenant applies in all contracts, it does not.

The dissent and concurrences have it right: "The majority applies the implied covenant in a manner that ... will practically eliminate in [the at-will employment] context."   The employer merely waits until the job is nearly finished and then fires the employee -- if the contract is payment on completion, nothing is owed because the job was not done when the employee was fired. An invitation to exploitation and dishonesty.  

Vander Veur is a bad decision.   

Sharp and Smudgy Lines

Earlier I wrote about the Arizona Brush & Nib case, another in the line of legal cases addressing the conflict, real or apparent, between religious freedoms and anti-discrimination law.  I suggested the possibility of carving out marriage for special treatment by anti-discrimination law, but did not really say why that would be reasonable.  Marriage is a peculiarly mixed religious and secular event.  Marriages are registered with the state and many are performed by civil servants.  )I have no idea of the relative numbers of civil and religious marriages.)  The practice in the US is not clearly one or the other, but for a large portion of the population, the religious significance of marriage is quite clear and quite important.  It is then reasonable to think that for some the religious significance of the marriage is integral to the event, for those directly participating as the ones being wed and their witnessing families and friends, and for those providing services enabling the celebration.  It looks and is different from the services enabling a graduation party, for example.  Recognizing this and allowing the religious to limit their participation in marriages that are contrary to their religious views treats their religious committments with respect, it respects their religious identity, which is to say their identity.  It says nothing about the identities of others or about the place of others in society.  It could be read then as not challenging or impugning the citizenship and dignity of others.  So the same-sex couple are not denied dignity or rightful place by allowing the religious to decline wedding specific services for a wedding the religious believe offends their religious committments.  

Of course, it looks or may look rather different from the perspective of the persons denied services.  Even if one accepted the above, there must certainly be available equivalent services (in cost and quality) in the same place, which I think likely in large urban areas.  So one has a line that accommodates both the religious and same-sex couple.  And the line looks sharp.  Well, looks.

This is a candidate in large part because it keeps a tight focus on marriage, building on the peculiarly religious aspects of the event.  I am not bothered by the secular versions -- fight for civil unions outside of marriage and put the marriage into a fully religious category.  That is not the big obstacle at hand.  The big obstacle at hand is that it does not look reasonable to confine the special treatment of the religious to the little world of wedding cakes and invitations or photo shoots.  The religious view can as well be pervasive and ubiquitous.  Religion is a fundamental aspect of identity, or can be. And where it is, it can be expected that in some significant portion of cases to imbue every aspect of life with choice that it is weighty.  There is no means to put a line around weddings that will not, on more or less the same grounds, be drawn to include all or most other transactions or interactions.  Hobby Lobby comes to mind.  So one exempts weddings and paying insurance.  Why stop there?  How to stop there with reasons? 

I think then one is at a fork in the road:devalue the religious identity, leave religious practice with little dignity, or leave others at the mercy of the religious.

Vigili

Janice Dowell and David Sobel have drafted and circulate a kind of petition or statement of action (here and here).  Distilled to its essence, the proposed course of action is this:  academic philosophers should listen to reliable reporters who tell them that someone has engaged in sexual harassment and, in response, remove the accused person from those who are invited for talks, included in invited to contribute to volumes, or invited to conferences.  The statement has a good number of signatories, 190 by my count.  The statement does not endorse or call for some formal process, e.g., an index of forbidden persons (to exaggerate).  It is a bit coy on whether there should be any public comment at all, or if it is just an internal informal activity within departments.  A significant number of people, obviously, think it a good idea and have signed on.  I have not seen any commentary about it, but the idea is not new and there have been discussions on closely related ideas.  I am not so interested here in the text or the details of the statement -- note 4 is problematic, but it hardly matters whether the note is there or not.  I want to talk a little about the idea.  To put it starkly and somewhat unfairly, it seems to be a call for academic vigilantes.  (I said 'somewhat unfairly,' so pause a moment.)

How it is like vigilante justice.  We take the word of a reliable reporter, and acting on that word punish someone.  No formal process of evidence or confrontation, neither adversarial nor inquisitorial.  Someone says and someone else is punished.  To be sure, the punishment is sort of hard to identify: how would one know that one was not invited to a conference for that reason (rather than, say, the organizers dislike the person or think their work poor or just ran out of space).  And, as the statement notes, no one is deprived of a right by the action -- there is no right to attend or participate (at least no legal right in the form of an entitlement).  But everything operates on word of mouth, and without any further process.

How it is not like vigilante justice.  The punishments are relatively small.  No one is publicly names as, no one is physically harmed.  

More important things about the statement.  It fits within lots of other forms of punishment.  There are lots of social networks that impose punishments without any formal process, based on the word of a reliable reporter (or some similar functional role).  Consider social circles, where some are pushed out because another has something against the person, or intra-familial sanctions, or, for some religious groups, expulsion from the flock by social pressure, or shunning.  Or gossip.  The notion that punishment is at work in circumstances other than formal processes is, I think, old enough even in US philosophy circles.  I wrote about it back in the day, or for someone better known (but still a pretty nice person and kind to me), Jean Hampton.  

Something else to note.  It would be good to see a discussion of what sort of effect, if any, adhering to the statement may be expected to have on formal processes.  There is a brief note about contractual obligations of faculty to report harassment, but nothing (that I found) about whether this will (or reasonably can be expected to) strengthen the formal processes.  I think that important for two reasons: part of the justification for the statement of action is that formal processes do not seem to be effective at present and for what sorts of things should we want informal enforcement of social standards rather than formal enforcement.  

So vigili, watchers, not vigilantes.  Except for the cowboy hats, because that is the style now. 

Mr. Fix-It

There is an interview of Justice Gorsuch with the Wall Street Journal, a summary of which is available outside the paywall.  It is mostly one expects: bromides and bland statements that sound good but have no real content.  But that is to be expected.  Justice do not allow themselves (mostly) to talk honestly and frankly about their work or what theories they work with.  I do not quarrel with that diffidence, not today.  But Gorsuch goes on about originalism in constitutional law.  Like so many originalists on the bench, I wonder if he really means any of it.  The talk is always about the meaning being fixed at the time of adoption or ratification.  Like a creature caught in resin, and now available to us as an interesting piece of amber.  It is not, despite my tone, a question of good faith.  I don't see reason to think these folks are dissembling.  It is just that it is very hard to see how it is they get to their conclusions about basic features of the legal order they plainly do support -- equality of race and sex, for example.  Gorsuch says that Dredd Scott was awful because Taney did not find racial status in the Constitution.  The bar on citizenship for free Blacks was just not in the Constitution, and that is why Dredd is wrong.  It is valiant, and Gorsuch is far from alone in agile attempts to get Dredd Scott and Plessy and Brown onto the list of defensible orginalist decisions.  I do not see any of the efforts as getting close to success.  These attmept alwsy end up with some story of meaning in which those who adopted the Constitution (or some amendment to it) have little idea of what they are doing.  They don't understand the Constitution they adopted and whose meaning is fixed at that time by their adoption.  It looks like magic.  I am dubious that the meaning of a document at a time could be independent of the use of the language at the time, and use is application.  Concepts are not so bound I think, but the Constitution is not a concept.  It is not a list of concepts, or if it is, then originalism is pretty thin gruel, or more accurately, pretty dirty water.  I know it is a bit of recurring roundof complaints on the general topic -- the history if poorly done and too often wrong, there is no account of how the entire thing does not change when amended, there is no account of how it is one takes an oath to uphold something the person cannot understand by reading but has to have a special legal history (which is fake history), how it makes nonsense of the Constitution as political foundation, it is a sort of idolatry of law and lawyers, and on goes the list.  It is, in the end, for me, that if the Constitution is not living it really is a relic and the reliquary is in the courthouse.      

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.