Law

After a couple days to think on it, I think this post is right on. I just stumbled on a paper that stumbles, badly, over one of my two obvious thoughts about originalism. So let me point that out. [click to continue…]

In a democracy one might, naively, imagine that political deliberation would involve the presentation of the arguments that people think bear on the question at hand. That is, if someone is in favour of a policy they would present the arguments that they believe support it and if someone is against it they they would do the opposite. One of the surreal aspects of British parliamentary debate on refugees and asylum is that neither the government nor the opposition do anything of the kind, and nor, for that matter do the media do much to improve things.

Consider, that everybody knows that Rishi Sunak’s harsh denial of the right to claim asylum of those who arrive “illegally” is motivated by the fact that the base of the Tory party and a sizeable chunk of “red wall” voters are strongly anti-immigration and that Tory strategists are concerned about the “small boats” issue, both because they are worried that a lack of border control gives off a sign of incompetence and because they want to expose Labour as “weak” on “illegal immigration”. In the Tory press, refugees and asylum seekers are constantly demonized as freeloaders, economic migrants, and young male invaders who pose a threat both of sexual predation and terrorism. (The European far-right, including Italy’s Salvini, France’s Zemmour, and the German AfD, in praising the British policy, do so explicitly as keeping the brown hordes at bay.) Labour, on the other hand, while they have a poor record of support for refugee rights, at least stand for maintaining the current human rights framework and upholding the right to claim asylum as set out in the 1951 Convention.
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After Stagflation during the 1970s, many markets were liberalized and, over time, central banks made a lot more independent in lots of places. In addition, some countries in Europe embraced the EURO (and founded the ECB), and barriers between regulated banking and shadow-banking (including by investment banks) were removed.

The intended aim, and in certain respects the successful effect, of central bank independence was to de-politicize central banks in three senses: first, to remove the temptation for politicians to use interest rates to benefit their own electoral prospects (which was thought to be the cause behind persistent inflation). Second, to prevent the use of central banks as a piggy bank for well-connected interest groups. Third, to turn monetary policy over to technocratic experts and, thereby, remove it as an electoral issue.

Over time one unintended effect of the third kind of de-politization is to dumb down our political class, which need not show any interest in monetary policy because it can always pass the buck to central bankers, and even delegate the execution of other policies to them. Arguably this state of affairs also made political debates more focused on cultural issues and less on the complex trade-offs involving monetary (and so-called fiscal) issues. In addition, as central banking was removed from the political arena, and so able to move with great rapidity, central bankers were actually nudged into taking on a whole range of crisis management tasks.

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One of the things I really like about my job, is that I have been appointed on a chair with the explicit expectation to advance interdisciplinary collaborations between ethics and political philosophy on the one hand, and the social sciences (broadly defined) on the other. I’ve been co-teaching with historians, taught some courses that were open to students from the entire university, have been giving guest lectures to students in many other programs including economics, pharmacology, education, and geosciences; and I co-supervised a PhD-student in social work. I’ve written an interdisciplinary book on the capability approach, and have co-authored papers with scholars from various disciplines. So interdisciplinarity is deeply engrained in much of what I do professionally.

But while I love it enormously, interdisciplinary teaching and research is also often quite hard. One of the challanges I’ve encountered in practice, is that students as well as professors/researchers are not always able to recognise the many different kind of questions that we can ask about society, its rules, policies, social norms and structures, and other forms of institutions (broadly defined). This then leads to misunderstandings, frustrations, and much time that is lost trying to solve these. I think it would help us if we would better understand the many different types of research that scholars working on all those aspects of society are engaged in. [click to continue…]

Back in the day, we at Crooked Timber had fairly regular exchanges with Todd Zywicki of the Volokh conspiracy group blog (which still exists, now hosted by Reason.com). So, I was interested to learn that he was taking his employer, George Mason University, to court over a requirement to get vaccinated against Covid-19.

The factual part of Zywicki’s case is that having had the disease and recovered he is already immune. More interesting is the claim that the requirement violates his right to privacy under the 9th and 14th Amendments to the US Constitutional. I Am Not A Lawyer, but this claim seems almost identical to that used in Roe v Wade, which seems certain to come before the Supreme Court soon. However, Zywicki’s brief does not mention what seems like the most relevant precedent.

My guess is that finding a majority willing to both reaffirm a constitutional right to privacy and second-guess the authorities on pandemic protection will prove too difficult. However, as Zywicki is asking for urgent relief we should find out soon.

After Ruth Bader Ginsburg’s death, we are going to see more debate over the norms on judicial nominations and whether they should be observed. The so-called “McConnell rule” – that the Senate should block Supreme Court nominations in the last year of their term to allow the people their say – is giving way to an equally fanciful McConnell exception stipulating that the rule only applies when Senate and President belong to different parties. So the question then emerges of how the Democrats should respond, if McConnell and Trump manage to get a Supreme Court nomination through, perhaps in the Senate’s lame duck session. Should they accept this or should they push back, perhaps through adding another two seats to the Court, something which is allowed under the Constitution, but that pushes back against long standing norms? [click to continue…]

“Cancel culture” has recently been in the news as a threat to free speech and open debate, most notably with the publication the other week of that open letter in Harpers. Cancelling is essentially a kind of crowdsourced attempt to boycott and ostracise individuals for their words or actions, sometimes including calls for them they be fired from their jobs or denied contracts and opportunities by media organisations. In the democratic space of social media this can sometimes tip over into unpleasant mobbing and sometimes bullying. But is “cancelling” people always wrong? Is the practice always an attack on the norms of free speech and open debate? Might cancelling some people be necessary to ensure others get the voice and platform to which they are entitled?

One objection to “cancellation” is that it chills open debate and makes people self-censor. But the problem with this critique is that some speech should be chilled and sometimes people ought to self-censor. A society that refuses to tolerate speech like David Starkey’s recent racist remarks about “damn blacks” and the slave trade is better for it, and it is a pity that Starkey didn’t think twice before uttering them. Now that he has come out with such language, he’s been cancelled, and rightly so.
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A guest post by David Owen (University of Southampton).

T. Alexander Aleinikoff & Leah Zamore, *The Arc of Protection: Reforming the International Refugee Regime*, Stanford University Press, 2019.

This book is a bold attempt to rethink the requirements of an international protection regime for forced migrants as well as a significant challenge to the view I recently proposed in my own book (reviewed [here](https://crookedtimber.org/2020/02/19/an-important-new-book-about-refugeehood/) by Chris Bertram). Combining a revisionist history of the international refugee regime and a call for a contemporary widening of that regime, it traces proposes a set of principles and practices of protection that the authors take to be adequate to challenges of our current circumstances.

That the international refugee regime is far from well-functioning is hardly a controversial judgment and Aleinkoff & Zamore begin by sketching out the character of its failure and the relationship of that failure to the shift to thinking of refugees in humanitarian terms. As they rightly note, the 1951 Refugee Convention is much more focused than current humanitarian practice on rights and on the integration of refugees – as social, economic and even political agents – into their states of residence. Their reconstruction of the post-WW2 emergence of our current refugee regime provides the basis for the pivotal claim of the book, which is a rejection of what they term ‘the Modern Standard Picture’ (MSP) of refugee protection according to which (1) citizens are entitled to the protection of their basic rights by their home state, (2) a refugee is someone whose home state has failed to protect them so that they have had to flee from it and (3) international protection is a surrogate or substitute for the responsibilities of their home state implemented through the protection of another state. MSP is a widely held view (my own work may be seen as a version of it) but they argue that it cannot make sense of the focus of the Refugee Convention on overcoming obstacles to the rebuilding of refugee lives in the host state by establishing requirements on host states to provide some rights in forms equivalent to those enjoyed by citizens and the remainder in the form enjoyed by the most favoured immigrants: ‘if international protection is a surrogate for anything, it is the inability or unwillingness of the host state to protect and assist refugees in their territory’ (p.51). The simple but radical redirecting of the focus of refugee protection onto the obligation of the international community to provide the rights and resources for refugees to be able to rebuild their lives, to enjoy agency and welfare wherever they are, provides the basis on which their argument and proposals stand.
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What would the world be like if women were unable to withdraw consent with regard to sex? You would be living in North Carolina, is what. Now, as an aside, I would totally live in North Carolina (please don’t tell my dad I would live in the wrong Carolina.) It’s lovely. But boy howdy does it have some terrifying rape laws and legal precedent. I mean, would I let my daughters live there?

Some cases are more difficult than others, especially if the initial act began with consent.

In 1979 the Supreme Court of North Carolina that once a sex act begins, a woman cannot withdraw her consent.

The court wrote that: “if the actual penetration is accomplished with the woman’s consent, the accused was not guilty of rape, though he may be guilty of another crime because of his subsequent actions.”

DA Welch called this a “troubling precedent.”

“I feel like you should be able to withdraw consent at any time,” Welch said. “If you have consented to one act, to me it doesn’t mean that act can keep going as long as necessary.”

“However, again it comes back to juries and how they view consent.”

“You will see someone who is consenting to a particular act, and all of a sudden it gets rougher than what they bargained for, or they change their mind, and we’re stuck,” Welch said. “If it goes from one act to another I don’t feel that that law apples, but you still have to deal with that issue in front of a jury, and that’s going to be very hard to convict.”

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This article is posted on Slate but is not, in fact, #slatepitchy, but rather, informative! NY recently passed a law banning revenge porn. Which is great! But it has a flaw. A loophole so big you could take the trouble of dynamiting a tunnel below some Alpine pass and then float a loaded container ship through it on a shallow, glassine stream. Because, you see, if the person non-consensually uploading pornography has the “intent to cause harm to the emotional, financial or physical welfare of another person,” then it’s a crime, and the victim can bring suit on the grounds that the perpetrator shared images of her “with the purpose of harassing, alarming, or annoying” her. But…

…[U]nfortunately, most cases of nonconsensual sharing of sexual images wouldn’t necessarily fall into the category of harassment, nor does the individual distributing the photos always want to cause some kind of distress to the person depicted.
Take the case of the 30,000-member Facebook group Marines United, which was outed in 2017 for hosting hundreds, potentially thousands, of explicit photos of female Marines and veteran service members without their consent. The creators and users of that group likely weren’t sharing images of unclothed female Marines in order to harm them [?!!!]. They were sharing the photos for their own entertainment. The group’s members probably didn’t even want the women to know their photos had been posted in the group. Under the New York law, those women wouldn’t have much recourse. According to a 2017 study conducted by the Cyber Civil Rights Initiative, a nonprofit that works on policy and helps victims of nonconsensual pornography, 80 percent of people who share private and sexual images of someone without consent aren’t trying to harm anyone….

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So this article (Autistic Sex Offenders Often Don’t Realize They’ve Broken The Law. Should That Matter?) was on the front page of Slate yesterday, and I thought, “this is so Slatepitchy that I should blog about it! Tomorrow though, because the Investigation and Discovery channel has it’s 4,000th show in a row about some brutal murder in Indiana, which I must watch, and also my mania requires me to clean the side of the stove that’s 1/2″ away from the kitchen counter, by forcing paper towel soaked in bleach spray down there with a boning knife and really leaning into it, and also I’m fundamentally a failure as a human being and can’t accomplish the most trivial of tasks.” (To be scrupulously fair, when I was nearing the end of the stove thing I said to myself, “self? Self old buddy old pal old frienderoo? Maybe just put the knife down and back away, because by the pricking of my thumbs, you’re going to be going at something with Q-tips any time now, and it’s already midnight.” (Ironically, this would have been good advice for the murderer as well.) “Also, if you’re so obsessive about these things, why isn’t the house cleaner generally? Could it be that you’re a failure as a human being?” And then I went to sleep lmao I had insomnia.

However, comma, I’m blogging about it now, better late than never, my life is a long series tasks before which I quail in needless fear as if they were copperheads looking at me with their glittering eyes, etc. This article has passed beyond #slatepitch to genuinely disturbing. And this is the reason that they took it off the front page altogether, and it can now only be found using google. [Update: I clicked on an article and this appeared in the sidebar. It was definitely not on the front page this morning.] The premise is that autistic people should get preferential treatment when they commit sex offenses such as stalking or possessing child pornography, because they don’t really know what they are doing. It’s as insulting to autistic people, really, as it is to common sense and basic morality.
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In Harry’s thread on teaching applied ethics, one commenter expressed the view that teachers should not say which side they support in a debate and should think of themselves as acting as lawyers for both sides. I think Harry sort of agreed with the first point. However, this isn’t always possible and sometimes isn’t even desirable. It won’t be possible when you have expressed yourself publicly and in-print on the issue at hand. When you have, then students will know what you think. Sure, you can present the best counter-arguments to your view in their best light, and you should, and you should encourage disagreement (and discourage unwarranted praise). But they’ll still know.

Some cases, though, are more resistant to impartiality. Take the ethics of migration, for example. I don’t find it hard to present arguments for restriction as put by people like David Miller or Christopher Heath Wellmann. So to that extent, even where the students know where I stand, they also know that I think there are philosophically respectable people whose arguments need addressing and that if they agree with, say, Miller, rather than me, that’s OK. Much more difficult, I find, is when we get onto state enforcement of immigration policy. The problem here is that even the restrictionists hedge their support for restriction with an acknowledgement that states must respect human rights and the values embodied in the rule of law.
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There’s an interesting article by Anna Grear in Aeon, criticising the idea that Nature should have human-style rights, and linking to the website of the Centre for Humans and Nature, which has lots more interesting discussion.

I’ve recently written a contribution to a forthcoming book by Tim Hollo, in which I take the opposite view. My central point is that corporations are routinely treated as persons for legal purposes, and that the effect is frequently harmful to Nature. There is in my view, no reason in principle, not to give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations. A lengthy extract over the fold.

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The UK Home Secretary, Sayid Javid, has decided to revoke the citizenship of Shamima Begum, who notoriously travelled to Syria at the age of fifteen with two companions and married an ISIS fighter. She is now in a Syrian refugee camp, has now given birth to a child and was reportedly keen on returning to the UK. Begum has given interviews saying that she regrets nothing and that she wasn’t “fazed” by seen the severed heads of those murdered by Daesh. Not an appealing character, but, given that she was groomed as a child by a criminal gang, one who might have been seen as a victim in other circumstances.

The UK government has given itself the power to deprive people of citizenship where this is “conducive to the public good” but the law up to now had been that they had to be satisfied that the person would not be rendered stateless. After all, as we know, if citizenship is the right to have right, statelessness is a condition of near rightlessness. In the present case, they seem to be claiming that a person born in the UK who acquired British nationality at birth can be deprived of citizenship because she is entitled to Bangladeshi nationality through her mother. Shamima Begum has never been to Bangladesh and has no connection to the country. Though her case involves terrorism the UK has also begun to use citizenship deprivation in cases involving “serious criminality”, a vague category that is capable of being defined downwards (as it was when Javid spoke about a group of people recently deported to Jamaica).

Millions of people born in the UK and holding British nationality currently have “access to” another citizenship. It may be Irish citizenship (the entire nationalist population of Northern Ireland!). It may be Israeli citizenship through the law of return. It may be the citizenship of some country in Britain’s former empire, such as Bangladesh. The new expansions of citizenship deprivation theoretically expose all of them to the possibility of exile and banishment to another country should they be convicted of serious crime. The immigration regime has long been one where the rule of law is muted, where due process is little more than what the government says it is, and where means of appeal and assertion of rights are limited. By bringing millions of people into the ambit of such a regime, you render them exposed to a system of arbitrary punishment decided upon by a minister. There are two ways to look at this: either millions of ordinary people are subject to tyranny, or they would never do that to ordinary white people, only to those with a “funny tinge”. Either way lies an appalling vista.

Update: I’ve written [a longer blog](https://www.lrb.co.uk/blog/2019/february/who-s-next) (and with improved legal information) at the London Review of Books blog.