Quotulatiousness

January 24, 2025

When the law schools went woke

Filed under: Education, Law, Liberty, Media, Politics, USA — Tags: , , , , , — Nicholas @ 03:00

In the New English Review, Bruce Bawer reviews Ilya Shapiro’s book Lawless: The Miseducation of America’s Elites:

As Donald Trump begins his second term as president with a mandate to undo the damage done to the country by leftist ideology, incompetence, and corruption, one of the many stables that most need cleaning up is academia – which is, of course, the source of virtually all of the most misbegotten ideas that have sent America astray.

To be sure, some parts of academia are more desperately in need of reform than others. As a rule, the elite universities, especially those in the Ivy League, are more poisoned by the new progressivism than most state schools, especially those in the heartland. Humanities and social science departments are worse off than STEM departments. And as Ilya Shapiro points out in his important new book, Lawless: The Miseducation of America’s Elite, the introduction of woke thinking into law schools is singularly damaging.

Yes, writes Shapiro, it’s unfortunate enough if, say, a sociology faculty is selling ideology rather than fact, for it represents “a loss to the richness of life and the accumulation of human knowledge”. But for a law school to head down the same road is far more perilous. For these schools turn out the lawyers, politicians, and judges who will serve as “the gatekeepers of our institutions and of the rules of the game on which American prosperity, liberty, and equality sit”.

And the sad fact, alas, is that in too many American law schools today, a preponderance of students are the products of classrooms in which, as Shapiro puts it, “the classical pedagogical model of legal education” has been abandoned in favor of “the postmodern activist one” – a process that has been underway for decades but that was greatly accelerated during the Covid pandemic and in the wake of the irrational nationwide hysteria over the killing of George Floyd. Hence those students swallow such dangerous notions as critical race theory and its corollary, critical legal theory, and therefore believe that colorblind justice, due process, and freedom of speech aren’t desiderata but tools of white supremacy.

Lawless has its roots in Shapiro’s own hellish encounter with this ideological leviathan. It happened like this: on January 26, 2022, the day that Supreme Court Justice Stephen Breyer announced his retirement, Shapiro tweeted that the “best pick” for a replacement was Sri Srinivasan, who, if appointed by President Biden, would be the “first Asian (Indian) American” on the Court. Yet because Biden had promised to name a black woman, lamented Shapiro, “we’ll get [a] lesser black woman”. After sending off the tweet, Shapiro went to bed – and awoke in the morning to discover that his comment had caused pandemonium in the legal community, where he was being viciously attacked as a racist and a sexist. Shapiro immediately deleted the tweet and issued an apology for expressing his opinion in such an “inartful” manner.

But that wasn’t the end of it. As it happened, Shapiro, who had just left the Cato Institute, was scheduled to take up a new position at Georgetown University’s school of law in five days. And unluckily for him, the dean of the law school, William M. Treanor, was a wimp of the first order, the kind of craven academic administrator who’s quick to cave to the noisiest and most radical elements. On January 27, Treanor issued a statement in which he represented Shapiro as believing that “the best Supreme Court nominee could not be a Black woman”.

This was the height of disingenuity: it was clear that Shapiro simply meant that Biden shouldn’t limit the pool of possible nominees on the basis of sex or race – a view shared by three-quarters of the American public. But as Shapiro would soon discover, under the current dispensation at woke law schools “what matters is not the objective meaning of a given statement or even its intent but its effect – not the facts but the feelings”.

So it was that Treanor ordered an elaborate and expensive “investigation” by a top-dollar law firm into Shapiro’s tweet – yes, an investigation into a tweet. Ludicrously, it took more than four months – during which Shapiro’s new job was put on hold. In the end, the “investigators” concluded that Shapiro had indeed expressed an offensive opinion but permitted him to start work at Georgetown. Wisely, Shapiro decided that, given everything that had happened, Georgetown would not be a comfortable fit for him – at least not with Treanor at the helm – and chose instead to accept a job offer from the Manhattan Institute, where he works today.

August 29, 2024

How activists used lawfare to force the Boy Scouts to go woke (and then go broke)

Filed under: Law, Liberty, Media, Politics, USA — Tags: , , , , — Nicholas @ 04:00

A guest post from Cole Noble at Postcards From Barsoom discusses how progressive organizations and political activists have managed an immense take-over of the great outdoors, not least of which were the legal and political efforts to force the Boy Scouts of America to accept gay scouts and scout masters:

[…] This entertainment ecosystem, increasingly infested with culture warriors, also started chipping away at the longstanding prestige of organizations like the BSA [Boy Scouts of America]. Depicting someone as a scout became a kind of character development shorthand, signalling them as uncool.

The targeting wasn’t incidental; the existence of the pre-centennial BSA was a serious problem for the ruling class. Their organization’s commitment to values-based conservation served as living proof that going along with society’s adoption of critical theory was completely optional. If the BSA was free to refuse the push, others might start getting ideas.

Lawfare was inevitable.

In 2000, the United States Supreme Court heard Boy Scouts of America v. Dale. In one corner you had James Dale, an avowed gay rights activist, co-president of the Rutgers University Lesbian/Gay Alliance, and outspoken advocate for gay teens having gay role models. In the other, you had the BSA, who didn’t want someone like Dale around its young, impressionable members.

The BSA won, but there was blood in the water. Culture warriors circled back around, this time employing social pressure. They tried to make their demand sound as reasonable as possible: drop the policy against openly gay members. Just one teeny tiny rule. What’s the point anyway? It’s outdated. No real sense keeping it, right?

Smart members of the program clocked this Trojan Horse from miles away. Alas, the organization’s leadership did not. Possessing both the physique and fortitude of rice pudding, they caved, capitulated, and acquiesced some more — agreeing to an ever-escalating series of demands that hollowed out the once-proud group into an empty vessel for The Current Thing(TM).

The Boy Scouts of America is now all-inclusive! Not just to gay scouts and leaders, but girls too. In a show of solidarity with Black Lives Matter after the riots of 2020, a mandatory DEI merit badge has replaced camping as a requirement to attain the once coveted rank of Eagle Scout.

Let’s not forget the Scout Masters now left to deal with teens using the program’s overnight trips as cover for hookups.

Oh, and they went bankrupt.

The organization agreed to a 2.5 billion dollar settlement over tens of thousands of sex abuse cases perpetuated by adult men, against underage boys.

(data compiled from the BSA’s publicly available annual reports)

Rather than bolster ranks, adopting DEI cost the organization more than 1 million members.

The BSA – sorry, Scouting America1 – didn’t publish annual membership reports from 2020 to 2022, I imagine out of embarrassment. During this time, the Mormons, who used Scouting as a youth program for its boys, took their 400,000 members, and their money, and left.

[…]

Scouting was one of, if not the last bastion of quasi-unstructured outdoor activities. While the death of free-range childhood seems to be commonly understood, there is some debate about the precise cause.

Whatever your opinion on the matter, regime journalists shoulder enormous responsibility for eroding societal trust and inspiring mass paranoia through sensational reporting. Former latchkey kids became hysterical helicopter parents, petrified of letting their children out of sight.

Playing outside became a heavily supervised affair, usually relegated to fenced-in backyards with locking gates.

Kids have been robbed of the experiences that could lead them to develop an organic appreciation for outdoor recreation, and groomed into a hypersexualized version of early adulthood. All the while, the institutions which once taught conservation and virtue now serve as apparatuses of critical theory.

    1. They changed their name in May of 2024, after 114 of being the Boy Scouts. Since they’re no long the Boy Scouts, this is at least honest.

Cole’s own Substack is Quandary Magazine, which you should check out if you’re generally interested in the great outdoors.

August 14, 2024

Premier Doug Ford’s weird plan to hold the justice system to account

Filed under: Cancon, Law — Tags: , , , , , — Nicholas @ 03:00

The problem with Premier Ford’s as-yet-unelaborated plan to collect formal statistics on the products of the criminal justice system is that it’s weird. And Canadians don’t like weird things because something something Donald Trump something something Hitler. Despite that, Colby Cosh thinks it’s a good idea:

Superior Court of Justice building on University Avenue in Toronto (formerly the York County Court House).

… the very idea of addressing a social problem by gathering quantitative information is so un-Canadian as to seem radical and startling. It certainly seemed that way to the lawyers and civil libertarians who freaked out at Ford’s mention of “accountability” for judges who fail to protect the public from criminal predators.

Judicial independence is an axiom of our constitution — but to the degree that judges become policymakers, which is perpetually increasing as they discover creative new applications of the Charter, their lack of oversight by elected legislators and by the voting public is also a serious and obvious problem, purely in principle. It is no wonder the legal guild takes fright at the notion of “accountability” if it is interpreted to mean that judges might be subject to enforceable performance measures or firing by a minister.

But, of course, the word “account” is visible in there, and measurement of a social crisis is necessary to establish that one exists, even if almost everybody believes it to exist. Our courts are the first to castigate a government that makes some legislative change affecting individual rights without an attempt at inquiry into its reasonability and urgency. Ford, in proposing to establish the dimensions of preventable re-offending, is doing exactly what a legislator hoping to reduce crime ought to do: gather numbers. Collect and publish information. And let us specify that we mean publish publish, in an open, dependable, accessible way, with maximum detail.

Frankly, Ford’s announcement seems as much as anything like a reaction to being backed into a corner by an unresponsive Liberal government, which controls bail policy and the content of the Criminal Code, and by judges, whose irrational bail and sentencing decisions flood what’s left of our news media. Provincial politicians are bound to be judged by voters on the perceived prevalence of crime, but about all they can actually do about it is to, well, buy more choppers for the coppers and start collecting local data about revolving-door justice.

Update: Fixed broken link.

July 2, 2024

The Chevron decision

Filed under: Bureaucracy, Business, Law, Politics, USA — Tags: , , , — Nicholas @ 03:00

On his substack, Glenn “Instapundit” Reynolds discusses the recent US Supreme Court decision on “Chevron deference” and how it is going to impact the administrative state (and their business victims) going forward:

Goodbye, Chevron deference. Larry Tribe is already mourning the Supreme Court’s overturning of NRDC v. Chevron, in the Loper Bright and Relentless cases, as a national catastrophe:

Oh, the humanity!

Well, speaking as a professor of Administrative Law, I think I’ll bear up just fine. I’ve spent the last several years telling my students that Chevron was likely to be reversed soon, and I’m capable of revising my syllabus without too much trauma. It’s on a word processor, you know. As for those academics who have built their careers around the intricacies of Chevron deference, well, now they’ll be able to write about what comes next. And if they’re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.

And that wasn’t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class’s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.

Sure, Norm, whatever you say.

But how about let’s look at what the Court actually did in Chevron, and in the Loper Bright and Relentless cases that overturned it, and in SEC v Jarkesy, where the Court held that agencies can’t replace trial by jury with their own administrative procedures, and in Garland. v. Cargill, where the Court held that agencies can’t rewrite statutes via their own regulations. I don’t think you’ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.

At root, Chevron v. Natural Resources Defense Council is about deference. Deference is a partial abdication of decisionmaking in favor of someone else. So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing. I’ve learned that somehow he always seems to pick the best thing.

Deference doesn’t mean “I’ve heard your argument and I’m persuaded by it”, (though something like that is misleadingly called “Skidmore deference”, but isn’t actually deference at all). Deference means “even if I would have decided this question differently, I’m going to go with your judgment instead”.

Under Chevron deference, when an agency interprets a statute it administers (e.g., the EPA and the Clean Air Act), a court will uphold its interpretation so long as it is (generously assessed) a reasonable one, even if it is not the interpretation the court would have come up with on its own. As you might imagine, this, at least potentially, gives agencies a lot more leeway, particularly when, as is often the case, Congress has drafted the statute ambiguously.

With Chevron overturned, courts will now apply their own judgment instead of deferring to agencies. Of course, this isn’t as big a deal as Larry and Norm seem to think, because Chevron has been dying the death of a thousand cuts for a while. Under the “major questions doctrine”, courts already decline to defer to agency interpretations where the issue has major social or economic ramifications.

June 20, 2024

The “Idiot Nephew Theory” of show business management

Filed under: Business, Media, USA — Tags: , , , , — Nicholas @ 05:00

Ted Gioia recalls his hopes of getting into the entertainment industry after graduation:

The story of how I became a strategy consultant is shameful.

I was a student at Stanford’s Graduate School of Business, and needed a job after graduation. I wanted to work in the music or entertainment industries — but I soon learned this was an impossible dream.

They didn’t want me. And they didn’t want my classmates either.

Hundreds of companies came to our business school to recruit talent, and they included most of the leading US corporations. So I talked with everybody — Coca Cola, Morgan Stanley, Atari, Procter & Gamble, you name it.

But no record label or movie studio ever showed up. They didn’t even send job listings.

Can you guess why?

I asked around on campus and was told the following (off the record):

    Come on, Ted. You will never see the entertainment business recruit here. Those folks are not looking for business talent.

    They give the choice jobs to their family members — the idiot nephew gets hired, not an MBA. Even better if it’s an idiot son.

    And if there are other openings? Well … You’ve heard about the casting couch, haven’t you? Let me give you a hint — that couch isn’t just for auditioning the cast.

    But you wouldn’t want a job there even if they gave you one. When time comes for a promotion, the drooling idiot nephew moves up — not you.

I’ve never shared that story before — because I know how people inside the music business hate hearing it.

And maybe it’s not a fair story.

All I can say is that I found this advice very helpful. I stopped planning on a career in the music business. And I also developed a very useful theory to explain why record labels are so bad at making strategic decisions.

I call it the “Idiot Nephew Theory”:

    THE IDIOT NEPHEW THEORY: Whenever a record label makes a strategic decision, it picks the option that the boss’s idiot nephew thinks is best.

And what does the idiot nephew decide? That’s easy — they always do whatever the company lawyer recommends.

Maybe this theory is wrong. All I can say is that it helps me predict events in the entertainment industry with a surprising degree of accuracy.

I always operate on the assumption that there’s no business strategy in the music or movie business — only legal maneuvering.

Years later, when the music business got totally reamed by tech companies — a phase we’re still living through, by the way — I wasn’t surprised in the least. The record labels respond to every new music technology by litigating, but whenever they encounter a company with more legal clout than them (Apple or Google/YouTube, for example), they simply gave up.

In the future, you can test this theory yourself. You will see that it possesses great explanatory power.

June 4, 2024

How Wall Street billionaires are reacting to the verdict against Trump

Filed under: Business, Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Under normal circumstances, you might think that Trump would find doors closed to him among the big-money folks on Wall Street after his trial ended with 34 guilty verdicts … yet the opposite is reported to be happening and his campaign is being inundated with big financial donations:

My quite strong suspicion is that Leticia James and Alvin Bragg have caused alarm by targeting business records and real estate valuations in corporate borrowing, things that everyone shares in finance, insurance, and real estate, for criminalization and destructive litigation. My bet is that capital is turning hard against lawfare, seeking to disincentivize and punish an attack on the basics of corporate business. People in business are horrified by a flamethrower of a prosecution over old business records.

So Bloomberg’s interpretation is that Wall Street is standing with Trump despite the verdict, but my bet is that Wall Street, Silicon Valley, and other business interests are turning against Democrats because of the verdict — because Democratic prosecutors in New York (and especially Manhattan), America’s financial capital, are doing things like turning seven year-old business record misdemeanors into a long list of Frankenstein felonies.

That interpretation makes capital’s support for Trump self-interested rather than morally outraged, though not over Bloomberg’s explanation of lower taxes, as people who keep business records turn against the party that bizarrely overcriminalizes the handling of business records when the target becomes politically unfashionable. If capital turns against the Democratic Party — if the ATM machine stops spitting out campaign funding — the moment becomes pretty significant, and Alvin Bragg becomes the dog who caught the car.

June 1, 2024

Guilty!34

Filed under: Law, Media, Politics, USA — Tags: , , , — Nicholas @ 03:00

The New York City jury did what the presiding judge told them to do and returned a “guilty” verdict on all charges against former US President Donald Trump. Sentencing is apparently going to take several weeks, because … reasons, I guess. eugyppius provides the German media’s gleeful response to the verdicts:

Der Spiegel‘s characteristically dignified, restrained way to present the news.

Yesterday, a Manhattan jury found former US President Donald J. Trump guilty of 34 felony charges. It is impossible to describe this highly contrived case clearly in a single paragraph, but the upshot is that hush-money paid to the porn star Stormy Daniels violated campaign spending limits, amounted to tax fraud, or constituted an attempt to unlawfully influence the 2016 election – either all of these things at once, or some mixture of them.

The naked political motivations of the prosecution are so obvious that they preempt all possible commentary. In the United States, the establishment have felt it necessary to fortify their free and open democratic elections against unpalatable outcomes by enlisting the help of the judiciary.

Because the German press are complicit in an essentially identical strategy on this side of the pond, they are thrilled – just thrilled – at Trump’s guilty verdict. Their reporting is as voluminous as it is identical, and it’s hard to keep the different think-pieces, op-eds and articles straight. This one from the Süddeutsche Zeitung is useful mainly for hitting all the common themes:

    Guilty. Criminal. From now on, these are the official trademarks of Donald J. Trump, at least for now. He is no longer just the first former US president ever to be criminally charged, and in four different cases at that. He is now the first former US president and current presidential candidate to be convicted in criminal proceedings – unanimously, at least in the first instance. Guilty 34 times over.

    Trump is a criminal! He is guilty! It feels so good to say that! Guilty guilty guilty!

    After such a judgement, a candidate for the most powerful job in the world should be politically finished. Who can imagine a convicted criminal in the White House? What’s more, Trump is theoretically facing three further and far more important trials. Under civil law, he has already had to pay hundreds of millions of dollars in fines for sexual abuse, defamation and illegally inflated assets. But this is the USA of the Trump era, so logic hardly matters …

This is a historic case! It’s hugely important! Even though we’re far from confident it will have any meaningful impact on the election which was the whole point of this farce in the first place!

It was always going to be difficult for someone as polarizing as Donald Trump to get anything remotely like a fair trial, just like poor old Senator Bedfellow in Bloom County:

Mark Steyn, who has had his own bitter experiences with the American “justice” system, on the proceedings of the NYC kangaroo court in the Trump prosecution: “[they wouldn’t] have gone to all this trouble for a fine and a suspended sentence. They want him dead.”

As everybody but the New Guinea tribesmen who ate Joe Biden’s uncle knows by now, Donald J Trump has been found “guilty on all counts” – a quintessentially American expression because, of course, the multiple-counts racket is one of the many perversions of judicial norms that have long disgraced the US courthouse.

[…]

Be that as it may, his legal reasoning would be fine if America were a land of laws, but unfortunately it’s a land of men: whether for the forty-fifth president or a “niche Canadian”, we’re in basic “Who? Whom?” territory, as the Leninists would say. After my own experience of both the New York and Washington appellate benches, I would rate the chances of Trump getting this reversed at the state level as way lower than Mr Otis’s five per cent. It’s the same in my own case: all involved know the DC Court of Appeals is merely an interlude in order to get it wafted up to the US Supreme Court. Likewise with Trump. So we’re betting the farm on John Roberts and that rock-ribbed six-three “conservative” majority on which Republicans have expended so much energy to the exclusion of every other societal lever. And, even were they minded to intervene, as I remarked on-air to Tucker a fortnight before the last so-called election, “A judges’ republic is a contradiction in terms“.

So Mr Otis’s legal arguments have very little real-world meaning in terms of November’s exercise in republican self-government. Meanwhile, back in what passes for reality in the courts of New York, the exciting bit having concluded, we are now back to the leisurely proceduralist folderol: The corrupt Judge Méchant has scheduled sentencing for July 11th. So, for viewers of English courtroom dramas on PBS, there’s none of the traditional “Take him down!”, with the guilty party being led down the steps ten minutes after the verdict to be driven away to begin his sentence. Let me see now, July 11th is, oh, a mere six weeks away, which torpor is also very familiar to me: my own verdict came down in February, but the various post-trial motions keep getting kicked down that endless road.

July 11th is also, as it happens, four days before the GOP convention is due to start in Milwaukee. So, at a time when the presidential nominee should be practising his acceptance speech in front of his bedroom mirror, he will be a thousand miles away waiting to hear whether he is to be belatedly taken down.

Thus, Judge Méchant will have once again subordinated the election calendar to the caprices of his filthy courtroom.

In theory, Trump has been convicted of a crime and could be headed to gaol. Also in theory, his term of confinement could be put on hold pending the outcome of his appeal. But they didn’t do that with Peter Navarro, did they? And it seems highly unlikely to me that they would have gone to all this trouble for a fine and a suspended sentence. They want him dead. If you don’t get that, go over to Larry Hogan’s pad and start cooing over your “respect” for “the rule of law”.

April 2, 2024

Publishing and the AI menace

Filed under: Books, Business, Media, Technology — Tags: , , , , — Nicholas @ 03:00

In the latest SHuSH newsletter, Ken Whyte fiddles around a bit with some of the current AI large language models and tries to decide how much he and other publishers should be worried about it:

The literary world, and authors in particular, have been freaking out about artificial intelligence since ChatGPT burst on the scene sixteen months ago. Hands have been wrung and class-action lawsuits filed, none of them off to auspicious starts.

The principal concern, according to the Authors Guild, is that AI technologies have been “built using vast amounts of copyrighted works without the permission of or compensation to authors and creators,” and that they have the potential to “cheaply and easily produce works that compete with — and displace — human-authored books, journalism, and other works”.

Some of my own work was among the tens of thousands of volumes in the Books3 data set used without permission to train the large language models that generate artificial intelligence. I didn’t know whether to be flattered or disturbed. In fact, I’ve not been able to make up my mind about anything AI. I’ve been playing around with ChatGPT, DALL-E, and other models to see how they might be useful to our business. I’ve found them interesting, impressive in some respects, underwhelming in others.

Unable to generate a newsletter out of my indecision, I called up my friend Thad McIlroy — author, publishing consultant, and all-around smart guy — to get his perspective. Thad has been tightly focused on artificial intelligence for the last couple of years. In fact, he’s probably the world’s leading authority on AI as it pertains to book publishing. As expected, he had a lot of interesting things to say. Here are some of the highlights, loosely categorized.

THE TOOLS

I described to Thad my efforts to use AI to edit copy, proofread, typeset, design covers, do research, write promotional copy, marketing briefs, and grant applications, etc. Some of it has been a waste of time. Here’s what I got when I asked DALL-E for a cartoon on the future of book publishing:

In fairness, I didn’t give the machine enough prompts to produce anything decent. Like everything else, you get out of AI what you put into it. Prompts are crucial.

For the most part, I’ve found the tools to be useful, whether for coughing up information or generating ideas or suggesting language, although everything I tried required a good deal of human intervention to bring it up to scratch.

I had hoped, at minimum, that AI would be able to proofread copy. Proofreading is a fairly technical activity, based on rules of grammar, punctuation, spelling, etc. AI is supposed to be good at following rules. Yet it is far from competent as a proofreader. It misses a lot. The more nuanced the copy, the more it struggles.

March 11, 2024

The ever-increasing risk that they’ll destroy the US political system to “save our democracy”

Filed under: Government, Law, Media, Politics, USA — Tags: , , , , , , , — Nicholas @ 04:00

David Friedman outlines not only the threat of a re-elected Donald Trump, but the threat of what his opponents are clearly willing to do to stop him:

    I’ve run into a surprising number of progressives who apparently genuinely believe that if Donald Trump wins the 2024 election, that will be the last free and fair election that America ever has. These people believe that if Trump wins, then by the 2026 midterms, if not by the 2025 gubernatorial elections, Trump and his acolytes will have figured out a way to rig the elections, or disenfranchise large number of Democrats, or hack the voting machines, or some other nefarious plot that will end self-government. The irony is that these people are the mirror image of the Trump fans who insist that the 2020 election was stolen, and that Democrats (or the Deep State, or whomever) rigged the elections, hacked the voting machines, etc. (Jim Geraghty in National Review, “A Reality Check on the Trump-as-Dictator Prophecies“)

Trump is a competent demagogue but an incompetent administrator. Having won the election and become president, he did very little with his power. The most important thing he accomplished was getting three conservatives onto the Supreme Court, something that a more conventional Republican could probably have done as well.

He did, however, succeed in scaring the center left establishment, parts of the conservative establishment as well. He had no respect for the political, academic, media elite, for Hilary Clinton, Harvard professors, the New York Times or National Review. He was an outsider in a sense in which previous Republican presidents were not, with enough political support to raise the frightening possibility of a government, nation, world no longer going in what they saw as the right direction.

Responses included:

Russiagate, the attempt to claim that Trump was a Russian asset.

The attempt to discredit the information in Hunter Biden’s laptop, which included a bunch of former intelligence leaders implying, on no evidence, that it was a Russian plant, Twitter blocking links to the New York Post‘s article on the laptop.

After the 2020 election, with the federal government back in Democratic hands, attacks have mostly involved weaponizing the legal system to punish Trump and his supporters. The strongest of the cases against him, for deliberately holding classified documents after the end of his term, clearly illegal, looked less unbiased after it became clear that Biden had knowingly retained classified documents from his time as Vice President and knowingly revealed them (although, unlike Trump, he returned the documents once his retention of them became public) and was not being prosecuted. The weakest of the cases was a prosecution for an offense, falsifying business records, on which the statute of limitations had run — on the grounds that the expenditure being concealed had been intended to protect his image and so counted as a falsified campaign expenditure on which the statute had not run. That and prosecuting him for optimistic claims for the value of properties used as collateral for loans — all of which were repaid in full — and finding him liable for hundreds of millions of dollars in damages were based not on legal necessity but on the predictable bias of a judge or jury in New York City, where the 2020 electorate voted against Trump by more than three to one.

My previous post described a tactic by which, if Trump won the 2024 election, Democrats might have tried to prevent him from taking office. The recent Supreme Court decision makes that particular tactic unworkable but it is clear from the Atlantic article published before that decision that some Democratic politicians were willing to take the idea seriously. Arguable the three liberal justices took it seriously enough to object to the majority preventing it, although there are other possible explanations of their dissent from that part of the decision. The Colorado Supreme Court took seriously, indeed endorsed, the idea of defeating Trump by keeping him off the ballot. It is far from clear that if there is another opportunity to defeat Trump’s campaign in the courts instead of the voting booth it will not be taken. If, after all, the survival of American democracy is at stake …

Trump has been charged with both federal and state offenses. If he wins the election he can use the pardon power to free himself from conviction for a federal offense but not a state offence. James Curley spent five months of his term as mayor of Boston in prison for mail fraud, until President Truman commuted his sentence. Georgia’s Republican governor does not have the power to give pardons even if he wanted to; the State Board of Pardons and Paroles does but only after a convicted felon has served five years of his term. The governor of New York has the pardon power but is a Democrat unlikely to use it on Trump’s behalf. If Trump wins the election but loses at least one of the state criminal cases, does the state get to lock up the President?

Suppose that, despite any legal tactics of the opposition, Trump ends up in the White House, in control of both the federal legal apparatus and, through his supporters, those of multiple states. After the repeated use of lawfare against him by his opponents it is hard to imagine Trump refraining from responding in kind or his supporters expecting him to.

December 13, 2023

“Harvard stands firmly behind President Claudine Gay”

Filed under: Bureaucracy, Education, Law, Middle East, Politics, USA — Tags: , , , — Nicholas @ 05:00

Chris Bray discusses the sure-to-be-continued saga of a plagiarist — who’s also a full-time water-carrier for terrorism — who happens (for the moment) to head HAMAS University Harvard University:

Harvard stands firmly behind President Claudine Gay, a remarkably undistinguished scholar and academic leader who has been lavishly overpraised and promoted beyond her ability for three decades. They do this, they have just explained, because Harvard is deeply committed to a culture of academic freedom, open discourse, and cultural pluralism:

    In this tumultuous and difficult time, we unanimously stand in support of President Gay. At Harvard, we champion open discourse and academic freedom, and we are united in our strong belief that calls for violence against our students and disruptions of the classroom experience will not be tolerated. Harvard’s mission is advancing knowledge, research, and discovery that will help address deep societal issues and promote constructive discourse, and we are confident that President Gay will lead Harvard forward toward accomplishing this vital work.

And so here’s the tweet — I insist on still calling them tweets — in which Harvard announces that it has posted its public letter on its insistent promotion of open and constructive discourse:

We stand for open discourse! (Replies are closed.)

Coprophagiacs eat so much shit that it stops being shit, and just becomes the thing they eat. Every word of a statement from the enormously high-status trustees of an enormously high-status institution is just ludicrous. They self-refute, casually, without noticing.

Every day now, I think about a term that lawyers use: a colorable argument. If you have a colorable argument, you can file your lawsuit without being instantly thrown out of the courtroom. You may not have the winning argument, and you may not even have a really good argument, yet, but you have enough of an argument that you can start. Then, through the discovery process and with some luck and hard work, maybe you can build the actual winning argument. But for now, you have some not-totally-implausible factish claims, and you can more or less connect it all to a law of some kind, and you can walk into the courtroom without the judge bursting into laughter. You have a colorable argument; you have the bare minimum.

Look how much of the culture is made up of people who don’t have a colorable argument. Look how much total nonsense streams by.

Now, about those plagiarism allegations against the president of what is alleged to be one of the nation’s most prestigious universities:

    With regard to President Gay’s academic writings, the University became aware in late October of allegations regarding three articles. At President Gay’s request, the Fellows promptly initiated an independent review by distinguished political scientists and conducted a review of her published work. On December 9, the Fellows reviewed the results, which revealed a few instances of inadequate citation. While the analysis found no violation of Harvard’s standards for research misconduct, President Gay is proactively requesting four corrections in two articles to insert citations and quotation marks that were omitted from the original publications.

She did absolutely nothing wrong, and that’s why she’s requesting corrections on 18% of her exceptionally thin scholarly record. No big deal, she’s just correcting “citations and quotation marks that were omitted”. Who omitted them? That’s the wrong question, see, because what happened is just that they “were omitted”. The quotation marks didn’t insert themselves. I demand that the quotation marks be denied tenure for wandering away from the page!

August 17, 2023

Lawfare as politics by other means

Filed under: Law, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 03:00

Chris Bray explains why getting rid of the Donald Trump candidacy wouldn’t even begin to solve the real problems in US politics today:

Donald Trump has been charged with crimes, so the Republican Party should drop him as a candidate and move on to someone else who hasn’t been indicted. That’ll solve the problem!

It won’t. The problem is lawfare. The Republican governor of Wisconsin defeated a recall effort, so Democratic district attorneys launched a long series of predawn raids on his supporters — until the courts made them stop. The Republican governor of Texas won four terms, but then was indicted by the office of a Democratic district attorney — for a budget veto, an action within his constitutional authority. Again, the courts intervened, and the legally absurd charges were dismissed.

Today, scumbag California Assemblyman Evan Low, a uniquely craven publicity chaser even by the local standards, proudly announces that he’s just introduced a legislative resolution calling for the federal government to open a criminal investigation into Florida Governor Ron DeSantis.

So. Get rid of Trump and nominate DeSan— oh, wait. Okay, name someone, anyone: Chris Christie, Vivek Ramaswamy, a utility nominee to be named later in exchange for three rookie infielders. Oh no, it turns out that the new nominee is under criminal investigation for [TBD]! As of, uh, tomorrow.

I have mixed feelings about Donald Trump, who supported pandemic lockdowns and school closures and the rushed development of mRNA injections with limited testing. Dumping him as a candidate because he’s been indicted misses the point. No Republican candidate will run for the presidency without being indicted, unless he’s a court-eunuch Mitt Romney figure, too safe to bother attacking.

June 26, 2023

America can’t build anything these days and “it’s all Ralph Nader’s fault”

Filed under: Books, Bureaucracy, Government, Law, Media, Politics, USA — Tags: , , , , — Nicholas @ 04:00

One of the readers of Scott Alexander’s Astral Codex Ten has contributed a review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism by Paul Sabin. This is one of perhaps a dozen or so anonymous reviews that Scott publishes every year with the readers voting for the best review and the names of the contributors withheld until after the voting is finished:

Today, pundits across the political spectrum bemoan America’s inability to build.

Across the country, NIMBYs and status-quo defenders exploit procedural rules to block new development, giving us a world where it takes longer to get approval for a single new building in San Francisco than it did to build the entire Empire State Building, where so-called “environmental review” is weaponized to block even obviously green initiatives like solar panels, and where new public works projects are completed years late and billions over budget — or, like California’s incredible shrinking high-speed rail, may never be completed at all.

Inevitably, such a complex set of dysfunctions must have an equally complex set of causes. It took us decades to get into this mess, and just as there’s no one simple fix, there’s no one simple inflection point in our history on which we can place all the blame.

But what if there was? What if there was, in fact, a single person we could blame for this entire state of affairs, a patsy from the past at whom we could all point our censorious fingers and shout, “It’s that guy’s fault!”

There is such a person, suggests history professor Paul Sabin in his new book Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. And he isn’t isn’t a mustache-twirling villain — he’s a liberal intellectual. If you know him for anything, it’s probably for being the reason you know what a hanging chad is.

That’s right: it’s all Ralph Nader’s fault.

How’d he do it? By creating what’s now called the public interest movement: a new form of activism through which citizens force change — or, more often, block change — by suing the government. Though it was begun with the best of intentions and achieved some real good along the way, this political innovation led to the constipated governance we all complain about today.

How did a movement launched by an unassuming 30-year-old lawyer become the dominant form of activism in the country, and completely change the way our government operates?

To find out, we have to go back to a time before Ralph Nader had even hit puberty — the era of the New Deal.

[…]

It is the inherent nature of politics that no reform works forever, because the next generation of political entrepreneurs will inevitably discover new ways to bend the process to their will. Eventually, there will always be another Dick Fosbury revealing a way to work the system that no one saw coming.

Still, I do think some of the blame for the way this all panned out can be laid on Nader’s particular personal idiosyncrasies. His ironclad black-and-white view of the world, combined with his near-pathological aversion to dealmaking and compromise, made him uniquely suited to a form of activism that focused on regulatory and legal action rather than coalition-building and electoral politics. Nader was infamously rigid and inflexible, so it’s no surprise that his movement was too. But a less rules-oriented movement might have created fewer of the bureaucratic barriers that have now become a hindrance to progressive action.

Much like the movement whose story it tells, Public Citizens the book is a worthwhile project that nonetheless suffers from significant flaws. The main problem is that it can’t decide if it’s a historical narrative or a work of political theory. As a work of political theory, it doesn’t take nearly a strong enough stand — I’ve made explicit a lot of claims that are only lightly implied in the book. I think we’re making the same argument, but the book makes its argument with such a delicate touch that it’s hard to be 100% sure.

As a historical narrative, Public Citizens has a much simpler problem: it’s boring. The author writes like an academic (which, to be fair, he is), and the book is quite light on colorful details. The uncreative chapter titles (chapter three is called “Creating Public Interest Firms”) give you a taste of what the writing is like. One particularly egregious issue is how little biographical information is provided about Nader, even though the majority of the book is about him. For someone who apparently subscribes to the Great Man theory of history, the author includes surprisingly little information about the Great Men themselves. Any interesting biographical fact you read in this review — even something as basic as the fact that Nader never married—is almost certainly something I found through other sources.

Paradoxically, this book manages to be simultaneously boring and too concise. It’s over in less than 200 generously-spaced pages, and I frequently had to look stuff up on the internet to get a full understanding of what was going on. I get the sense that the author is trying to give this book mass appeal, but come on: anyone who’s willing to read a nerdy book like this is willing to read an additional hundred pages or so. Besides, Robert Caro and Ron Chernow have proven that people will read thousand-page tomes if the story is compelling and the details are juicy.

Basically, my critique of Public Citizens is like that old Catskills joke about the restaurant where the food is terrible — and the portions are too small.

September 19, 2022

QotD: Representative government

Filed under: Government, Law, Quotations, USA — Tags: , , , , , — Nicholas @ 01:00

If it’s to work at all, representative government has to be representative. That is, it must be consented to by the governed. But not only did we not consent to be ruled this way, we couldn’t. Just to take the most obvious problem: We have no idea who our rulers actually are.

Hawaiian judges are our kakistocracy‘s public face, but all the decisions that matter are made long before the hacks in black get involved. As we know, we Americans commit, on average, three felonies a day. If, when, and how these come to the State’s attention are almost completely random. This is true for any law, actually, and because it is, it’s not really an exaggeration to say that your livelihood, and often your actual freedom, depends on what side of the bed the cop got up on this morning.

If The Authorities notice you when they’re in a good mood, you skate. If The Authorities are in a bad mood, though — tired, hung over, had a fight with the spouse, whatever — you’re screwed. What actually happens to you depends on the lawyers, a.k.a the most incestuous little fraternity on the planet. Whether they choose to prosecute or not, and for what, and what deals they make over a drink or seven determine what happens to you once you get in front of hizzoner … who, of course, is also butt-buddies with all the lawyers who appear in his chambers, since he was one of them not too long ago and they remain his entire social circle.

Who in his right mind could possibly agree to this? No, forget “right mind” — it’s simply not possible for anyone, not even someone as far out on reality’s fringes as the SJWs, to consent to this. Those “people” (in the strict biological sense) think houseplants have human rights, but not even they would agree to have their life’s course determined by two dimbulbs with great hair and ugly neckties cutting deals with each other in a dive bar.

But so long as we fetishize the form of “representative government,” it can’t be otherwise. As folks in Our Thing never tire of pointing out, had The People ever been consulted about our preferences, at any time after 1963, we’d still be living in a White Christian nation with a solid manufacturing base and a minuscule military footprint. If it were possible to throw the bums out, we would’ve thrown out every bum on every ballot since at least Calvin Coolidge. But we can’t throw the bums out, because the process is rigged.

Severian, “Form > Process > Outcome”, Rotten Chestnuts, 2019-09-06.

April 11, 2022

Ours is a fundamentally unserious culture, two examples

Filed under: Education, Government, Law, Media, Politics, USA — Tags: , , , , , — Nicholas @ 03:00

Chris Bray provides some examples of just how decayed western culture has become in our headlong flight toward total unseriousness:

In Europe this month to lead the diplomatic response to a war, the Vice-President of the United States responded to a question about refugees by giggling and cackling and babbling in typical form:

And then the “fact-checkers” at Reuters explained that she actually didn’t giggle and cackle and babble, because, okay, she did cackle and giggle and babble, but she didn’t cackle and giggle and babble specifically about the refugees, so it doesn’t count: “It is clear from viewing the longer video in context that Harris and Duda laughed at the awkwardness of not knowing who should speak first. There is no evidence that Harris was laughing at the refugees or the crisis in Ukraine.” The question was about refugees, and she laughed — she laughed a lot — right after the question, but Reuters apparently called no tagbacks before the play, so no points accrue.

So we have an awkward and ineffective playactor who occupies the position of a political leader, but lacks the stature or ability to go along with it, and we have journalists who labor to protect people in powerful political positions from the possibility that people will notice who they really are and what they really do. We have political leaders who aren’t political leaders, and journalists who aren’t journalists: the form without the substance.

Meanwhile, a recent debate on the topic of free speech at Yale Law School — the nation’s top-ranked law school, which produces presidents and Supreme Court justices — began with law students screaming abuse (“I’ll fight you, bitch”) at one of the panelists, before walking out as a group and continuing to shout and pound on the walls of the adjacent hallway.

Now: The students were angry at the panelist, the bitch they wanted to fight, because she’s an anti-trans social conservative, and couldn’t you just die? But the thing that law students are learning to do is be lawyers — advocates for a position in a formalized exchange of competing views, in controversies that play out in open court. They’re training at the profession of making an argument. The point of sitting through an argument made by a person whose views you despise is that you can learn about something you want to fight against; you can see what the enemy says, and how she says it, and so do a part of the work of preparing yourself to advance a different position. So we have law students, people training for a debate-and-exchange-centered profession, who don’t want to hear things they don’t agree with. It’s like a minor league baseball player saying he refuses to touch a baseball, because baseballs offend him, but anyway, when are you assholes sending me up to the major leagues? We have people who want to occupy the profession of the law without preparing for the substance of professional engagement with competing positions: the form without the substance.

(Doing what journalists do, now, the fact-checkers explain that none of this puts points on the anti-free-speech scoreboard: “The students made their point at the very start of the event and walked out before the conversation began.” It is precisely the point that 1.) law students 2.) walked out before the conversation began. In ten years, oral argument before the Supreme Court will be that Woke lawyers stand up and scream I’M NOT GONNA LISTEN TO THIS SHIT, YOU ASSHOLES at the justices, then storm out and descend into a long round of day-drinking while waiting for the court to rule in their favor, because oh my god they CAN’T EVEN.)

December 3, 2021

QotD: Questionable legal tactics

Filed under: Humour, Law, Quotations — Tags: , , — Nicholas @ 01:00

This is what I like to call a “reverse insanity defense”. You raise the defense in the hope that the judge is certifiably out of his friggin’ mind and grants it. Sadly, it rarely gets clients off the hook. It is, however, an excellent method of destroying your credibility with the court.

Conrad, “The Reverse Insanity Defense”, The Gweilo Diaries, 2004-09-28.

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