Law

I’ve been waiting for this paper to drop, ever since Suresh told me about it last year. It’s groundbreaking. What it does is to take Steve Teles’ qualitative work on the conservative legal movement, and then ask a simple question: if we start with the qualitative evidence about the program’s intentions, then FOIA the hell out of George Mason University to find out which judges attended the Manne seminars, and then apply cutting edge econometrics and natural language processing to their decisions, what are we going to find out?

Some selected quotes (as well as one quote that isn’t in the current version, but will likely be in the next) under the fold, for those who are interested in the headline findings. [click to continue…]

I wrote a long Twitter thread on Kavanaugh a week ago, the first time that I thought he was going to get in. This piece by Matt Yglesias covers much of the same ground that I did, but better. This Boston Review article by Sam Moyn says what I wanted to say about courts and democracy, but is sharper. Still, there’s one idea in neither of them that I think is worth developing.

That is Kavanaugh’s role as a frame. The sociology and political science of social movements talks a lot about how movements on the street need frames – simple representations that provide a common focus for the very different people with different interests that make up a movement. Kavanaugh – angry, distorted, shouting face and all – provides the most concrete imaginable metaphor for what the Republican party has become, and for the white conservative elite that is trying to cripple American democracy. The ways in which conservative judges are undermining American democracy are apparently a-political, and hard for many people to focus on and understand. Kavanaugh represents and personifies this silent judicial revolution. And he does so in an especially visceral way for the women who are the backbone of the social and political movement that has to be at the heart of any hope for political change in the US. He can – and should be – hung like a rotting albatross around the neck of the Republican party.

Democratizing the Supreme Court is a long term project. It is going to require a fundamental reshaping of the American legal elite – focusing on the cosy relationship between top law schools and the judiciary, and the ways in which the Federalist Society has finessed the ambiguities between debating ideas, providing a pipeline for judges, and vetting Supreme Court justices. It will also require politics on the streets. The circumstances of Kavanaugh’s elevation have temporarily raised the costs of overly comfortable relationships in the legal world. Keeping them raised – and turning them into a broader democratic agenda – will require active and continued mobilization. Pressing for investigations (should the Democrats win in November) of the role that Whelan, Leonard Leo of the Federalist Society and others seem to have played behind the scenes in trying to discredit accusations. Framing the court and every rotten decision it makes as the Kavanaugh Court. And protesting in every way possible to raise the costs for the politicians who voted for Kavanaugh, and where possible to replace them.

None of this changes the fact that it is very, very bad that Kavanaugh has been confirmed. But it does mean that Kavanaugh can, despite himself, become a political engine for change, in ways that would have been impossible if he had been confirmed without controversy, as seemed likely to happen just a few weeks ago.

Robert Litt has a piece in Lawfare, which probably deserves some further attention, if only because smart people seem to be misinterpreting it:

Watching the Derp State still wringing its hands over the erosion of norms in 2018 is one of the few joys of a sad year. Could it be that Trump is harming the presidency? The answer may not shock you. https://t.co/Xu7l5Rv2Qb

— Pinboard (@Pinboard) August 16, 2018

[click to continue…]

Some readers are failing to appreciate the aptness of my Kennedy-as-Magic-8-Ball analogy. In some cases this may by due to infirm powers of reading or reasoning; in other cases, to ignorance of the law, or of recent legal history. In some cases it may be due to insufficient familiarity with a children’s toy. No matter, I shall explain.

The Magic 8-Ball has 20 possible responses: 10 positive, 5 hazy or non-commital, 5 negative. And that is what Kennedy was. Half the time a rock-ribbed conservative, but half the time either liberal or hazy.

Thus, the following would be one way to keep the Supreme Court above the partisan fray, post-Kennedy, while acknowledging the power of partisanship, and according the sitting President a certain privilege when it comes to determining the make-up of the court. [click to continue…]

In discussion of my recent post about the Windrush scandal, a couple of commenters used the phrase “illegal immigrants”. Tory ministers have since been on the airwaves using it a lot, and telling us that the public expects action on “illegal immigration”. Labour’s Diane Abbot has also been talking about the need to “bear down on illegal immigration” and the journalist Amelia Gentleman, who did so much to break the Windrush story, has protested that scandal of citizens denied their rights is nothing to do with “illegal immigration”.

But here’s why what they all say is wrong. There’s no such legal category as “illegal immigration”, rather there are people who have the legal right to be in the country and, perhaps, to do certain things like work or study. And then there are people who *may* lack the legal right to be present and to do those things. Some of the people with legal rights to be present have those rights because they are citizens; some other people have those rights for other reasons such as having a valid visa, being a refugee, or having some other human rights-based legal basis to stay.

Obviously, to “bear down” on people without the legal right to stay a government needs to (a) determine who they are and (b) take some action against them. Equally obviously, a government official may make a mistake about whether a person has the right to stay or they may use impermissible means against them. So you need a system by which people who have the right to stay but who the government wants gone can contest the bureaucratic decision against them as mistaken.
[click to continue…]

Law-makers are responsible for the laws they make, and support, and do not repeal. They are responsible for the intended effects of their legislation, also for unintended but easily predicted effects. (They are even semi-responsible for less easily predicted bad effects – although the degree to which legislation should be a strict liability business is debatable.) None of this is mitigated if mediated through a causal chain that includes other actors besides the legislators.

If law-makers favor legislation that makes it easy for immigrants to enter the country illegally, they are faulted (or credited!) accordingly. It usually isn’t fair to say that legislators ‘favor’ or ‘like’ effects of legislation that are, most likely, regarded as costs, not benefits. But it’s fair to say that legislators are responsible for the costs. [click to continue…]

This exit interview with Richard Posner, who is retiring as a judge, is interesting.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it. … He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters. “These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.” …

Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.
In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds. “Davis needs help — needs it bad — needs a lawyer desperately,” he wrote.

On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said

I don’t want to be snarky – it is unqualifiedly great that someone of Posner’s stature on the right is taking up this cause. I do want to point out though, that it can be interpreted as a partial completion of something that was incomplete before – Posner’s commitment to pragmatism as an approach to understanding the law. [click to continue…]

Five reactions to the leak and charges against Reality Winner, based on the doubtless incomplete information that is publicly available right now, and hence open to revision and pushback as more emerges. [click to continue…]

I have [a blog piece with Helena Wray and Devyani Prabhat](http://legalresearch.blogs.bris.ac.uk/2017/03/the-uks-spousal-and-family-visa-regime-some-reflections-after-the-supreme-court-judgment-in-the-mm-case/) at the University of Bristol Law School Blog. The final para:

> Family and spousal migration is only one part of migration policy, and there is the broader issue of what values migration policy should serve generally. In recent political argument in the UK, three sets of voices have been prominent, virtually to the exclusion of all others. First, the proverbial “taxpayer”, the net contributor to government spending. Second, the needs of “business” for skilled and not-so-skilled workers. Third, the “legitimate concerns” of so-called “ordinary people”, constructed as the “white working-class” worried about cultural and demographic change. Largely absent from the discussion have been the autonomy interests that all citizens have in being able to have a valuable set of life-choices available to them, about being able to live, work and settle where they wish, and in being able to make their life with a partner of their choice and maybe start a family. Rather, those interests – that ought to be of central political concern for a liberal society – have been crowded out of the migration debate. This has meant that many of our fellow citizens and their partners have been thwarted in their pursuit of central life goals or forced to pursue those aims through compliance with arcane rules and at the mercy of an unfathomable bureaucracy. If we aspire to the values of a liberal society – as is the official consensus position of all major political parties – our policies ought to reflect them.

It’s good to see that National Review is awakening to the threat of one branch of government being afflicted by lunacy and threatening to ride roughshod over the other branches, and the Constitution.

I’ve been seeing much Facebook bemusement this morning over this opinion piece by Eugene Kontorovich.

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

[click to continue…]

The Guardian today [publishes a vast number of leaked reports from Nauru](https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention), one of Australia’s offshore processing sites for asylum-seekers (in reality, a camp for the indefinite detention of asylum-seekers). The reports, or “unconfirmed allegations” as the Australian government would have it, are a harrowing catalogue of physical and sexual abuse, and of consequences for mental and bodily well-being, often suffered by children. These places exist to appease an Australian citizenry hostile to the arrival of “boat people” who believe that such people — even those determined to be refugees by Convention criteria — are not their problem. Though Nauru is a particularly vile example, it would be wrong to think that Australians are alone in their attitudes to refugees and asylum seekers. Other Western governments are happy to do deals with other states beyond their borders to ensure that the wretched of the earth are out of sight, where they can exist as an abstraction, not disturbing the conscience of their own citizens. Human rights, together with other liberal principles like the rule of law, have become, for many liberal democratic states, the exclusive right of the native-born citizen or, at best, someone else’s problem, somewhere else.

I’d be interested to learn from people in Australia now, how much traction this latest leak is getting in the Australian media. A surf to the websites of the Australian and the Sydney Morning Herald suggests not much.

Everybody needs to read this. I’m in awe of the author for having written something so powerful, important and eloquent. No skimming or scanning, read every word.

The NYT has an interesting article on how DNA analysis is helping African-Americans
(especially in the south) discover more about the carefully erased history of their families. Most people need to know at least the name of the white families who enslaved their forebears in order to make much progress, but as more information is digitized and collated this can become easier. I ran across this article about an informal genealogy research group in Savannah when I was searching for something else. The list of references includes the ‘Joseph Frederick Waring II papers,’ MS 1275:

Contains 35 items on African-American churches (not dated); 18 items on African-American members of the Republican Party of Georgia from 1867-1869; slave bills of sale from 1856-1859; a list of slaves from 1859, leases to African-Americans from 1865-1866, and a letter from 1851 which discusses a fugitive slave riot.

There’s also the less morally disturbing ‘Antonio J. Waring Collection, MS 1287,’ which contains “The Case of the Africans,” discussing the slave trade from 1817-1820. These two references, and an earlier note from the ‘Joseph Vallence Beven papers,’ MS 71, which, “[c]ontains correspondence dating from 1787 between George Mathews, Thomas Pinckney, and General James Jackson concerning armed fugitive slaves” brought two things home to me.

One, my brother’s friend Tom Pinckney, and a ton of Macintyre’s live along the stretch of the May River within a half-mile from my house. Pretty sure there’s even a Ravenel up in there closer to town. There are zero black families along that stretch of the river. This is obviously morally wrong. However did this inequity arise? At least I don’t go around explaining how I never benefited materially from chattel slavery because my family all emigrated from Ireland 12 minutes ago and were treated exactly like black slaves, except for not being owned outright or made legally sub-human or subject to the dreaded ‘one drop of Irish blood’ test, or even the ‘are you lighter than this piece of A4 typing paper on which I spattered some watered-down sepia ink from a toothbrush’ test. That’s a pretty low bar, though. It’s not exactly “take all thou hast, and give to the poor”-type stuff. More like, “I’m not an aggressive dickweasel! Yay me! Please give me some benne brittle!” Mmmm, tastes like exploitation of West Africa.

Two, the history of slavery in America is always taught as if there was little to no resistance from slaves. I have wondered about that plenty, thinking, when S.C. was 80% black, how in God’s name did white people keep from getting straight murdered all the time? I mean, “by using inhumanly savage violent repression,” obviously, but even so I thought there would be more “whoops, the plantation house caught on fire and nobody could get out mumble because people were standing outside in a circle armed with hoes and axes mumble.” But I’m starting to think that the slavers’ nightmare happened much more than I think, but the news of it was repressed as savagely as the small rebellions, so as to keep anybody from getting any ideas. OK, this wasn’t actually my initial point at all but it is worth considering, so I’ll just break this post up for easier commentatin’.

Yesterday’s verdicts that the 96 Liverpool fans who died at the 1989 FA Cup semi-final at Hillsborough were unlawfully killed is a complete vindication for their families who have campaigned for justice for 27 years. It is also a total condemnation both of South Yorkshire Police and of their friends among the tabloid press, the pundits and the politicians who first blamed the victims and then spent years treating the bereaved with contempt. I’ll not say more about the facts and the history here, since [there](http://www.theguardian.com/football/2016/apr/26/hillsborough-families-27-year-struggle-for-truth-vindicated) [are](http://www.liverpoolecho.co.uk/news/liverpool-news/hillsborough-myths-exposed-inquests-tissue-11247115) [plenty](http://www.liverpoolecho.co.uk/news/liverpool-news/hillsborough-disaster-inquests-verdicts-delivered-11240268) [of links](http://www.bbc.co.uk/news/uk-20782891) that people can follow. I just want to say a few general things. First, there is the lesson that sometimes people who campaign against injustice, who stubbornly stick to their task over the decades can win, even against the state and its supporters. Second, we need to notice, again, how injustice comes about and persists where the victims are people who don’t matter in the eyes of the powerful. In 1989, Scousers in general and football fans in particular were people who didn’t count, who didn’t matter, who could be stigmatized and stereotyped as feckless, violent, drunken, workshy and blamed for their own misfortune. Later they were whingers with a “victim mentality”. Third, for all that pundits ridicule “conspiracy theories”, there are sometimes conspiracies by the state and its agents, perpetrated against “people who don’t matter”, and aided by those same journalists and commentators with their contempt for the victims, their lack of interest in the facts, and their deference to the official version. Everywhere, “people who don’t matter”, whose interests are ignored and whose pain is ridiculed, can take heart from what the Hillsborough families have achieved. The next step for justice should be the prosecution of those responsible.