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Epistemology 101 (Updated)

We’re tired.  And this is tedious for us, but then again the occasional review of well worn territory has some value.  If only for nostalgia.  So on to it.

We refer the reader to the last post, not our best effort but it puts a name to the face so to speak.  The real issue, as it was in the beginning, is now and ever shall be, is this:

How do we “know” anything at all?

Parmenides says we know what our “reason” tells us and nothing else, certainly not what we see.  Heraclitus says we know only what we see, and what we see is unintelligible chaos, change, motion and “flux”, ultimately indecipherable to reason.  Or “the Reason”, as we hereinafter refer to it.

Adhering strictly – logically – to either of these bookends of the epistemological shelf is incompatible with life as we “know” it (forgive the loose use of the term here).  With Parmenides you couldn’t get out of bed in the morning and light a cigarette.  With Heraclitus you lurch from experience to experience but none of it means anything.

But as between the two alternatives, is one better?  Yes.  Parmenides.  Because at least it makes some sense.  Heraclitus would deny even the value of that, but of course he’s on a loop he can’t escape, because his denial would stand only to the extent that it makes more sense.  “the Reason” – or, as we like to call it over here at LoS, “natural reason” – is the one absolute, inescapable given of our existence.

So centuries later DesCartes embodies this thought in his famous “Cogito ergo sum”; but then this is subject to ridicule both by Kierkegaard (our hero)(“If I am thinking, what wonder, then, that I am”.) and Nietzsche (our antagonist).  And why is that?

Reason is how we understand whatever it is we understand, but we can never understand reason itself.  It just is, and we just submit to it every waking moment because practically speaking, or epistemologically speaking for that matter, there is no alternative.

Except to go insane.  Which is what Nietzsche did, and it’s not a coincidence.

So why does anyone go down that particular road?

Because the Reason, since we must submit to it even though it can’t explain itself, is just like the idea of the God, and in just that same way:  the Reason is accepted as binding not as a matter of the Reason itself (as the Reason can’t explain or justify itself) but as a matter of faith.  We submit to the Reason because we have faith in it, and that is the only possible basis for our submission to it.  And once we acknowledge that no matter how much we pretend otherwise we are governed ultimately by faith (for that’s what all this means) and not by the Reason – and certainly not by what we empirically observe – then faith in the God becomes reasonable (apologies!), so reasonable in fact that the opposite – atheism – becomes unreasonable, unsustainable and unjustifiable.  Arguably, on the level of the Reason faith in the God becomes mandatory, or at least as mandatory as faith in the Reason is.

But can one still be an atheist?  Of course.  But only on this condition:  I am an atheist not on account of the Reason, which I submit to in all other matters of every waking moment of my existence (because I must) and which rejects atheism; rather, I am an atheist because that is my will, the God and the Reason both be damned.

One danger in this  (and it is a profound and very real – that is, a practical and present  danger) and one that has affected us and our life, and our clients and their lives, is that naturally enough once one has rejected faith in the God one is liable to reject faith in the Reason as well, since the Reason leads inexorably to faith, and faith leads inexorably to the God.  And vice-versa.

Thus we see that:  “Reason is, and ought only to be, the slave of the passions and can never pretend to any other office than to serve and obey them.” is where any atheist is sure to end up, not just David Hume.  And the American legal profession became, as the 20th century wore on, rigidly and dogmatically David Hume’s intellectual heirs.  Often by way of Jeremy Bentham and Oliver Wendell Holmes.  And of course Friedrich Nietzsche.  And the term “intellectual” is of course advanced advisedly.  Anti-intellectual would be more accurate.

Re-read if you don’t understand.

And so here is one “real world” consequence of this otherwise arcane subject matter.  And another.  We could go on.

But here’s another important point.  We have described Nietzsche as our antagonist, which indeed he is, but we should also acknowledge our indebtedness to him:  he shows us the horror of atheism.  As we said earlier, it’s not a coincidence that Nietzsche went insane.  It is also not a coincidence that he became an icon of murderous 20th century ideologies like Nazism.  The absence of the God leads to the absence of the Reason and all that’s left is who or what is to be master, and that’s all.  Thy will or my will.  Reason, truth or justice have nothing to do with it.  Power is all there is.

It is a prescription for hell on earth, of course.  But perhaps worse than that, or maybe more part and parcel of it, is that the idea is (as we implied at the beginning of this morning’s discourse) ….tedious.  A colossal boreMilton had exhausted the idea two centuries before Nietzsche.

And so what happens to the schools of western thought that embrace Nietzsche, which at this point is most of them?  As you might imagine, they become less and less interesting.  Read Wittgenstein and stay awake, if you can.

And so we come back to the beginning, and again Kierkegaard says it so much better than we can:

Starting from a principle is affirmed by people of experience to be a very reasonable procedure; I am willing to humor them, and so begin with the principle that all men are bores. Surely no one will prove himself to be so great a bore as to contradict me in this….Boredom is the root of all evil.

We can only add this:  the reverse is also true.  Evil is the root of all boredom.  Intellectually, that is.  In practice, of course, evil can become very interesting indeed, at least short term.

Although we do not mean “interesting” in a good way, because it is most assuredly not a Good Thing.

Update:  A little ironic that we published this post, which we had composed over some days, on the same day that Stephen Hawking died, for his views on things are quite topical, notably these.

We swear, we had no notice of the event.  Hawking dying, that is.

Of course Hawking saying that “science” has superseded – indeed buried – philosophy is another way of saying that the truths of the Reason are subject to empirical confirmation, in the absence of which they are not truths at all, and accordingly philosophy is indeed dead.  As is God, of course, but then Hawking was hardly a trail-blazer on that score since Nietzsche said as much a century and a half ago.

A dubious proposition does not acquire more weight just because Hawking said it.  And we would note, empirically, that while the evidence of Hawking’s oft attributed “brilliance” is surprisingly sparse – he apparently had trouble learning to read, for example – the evidence of his overt politicization and ideological inclination is abundant:  he was a reliable apologist for every mainstream-liberal – and often flamboyantly “scientific” – bugaboo.

But perhaps most importantly, and like almost all other media-anointed-scientists such as Carl Sagan, Arthur C. Clarke and Bill Nye, he was frankly and candidly atheist if not openly hostile to “religion”.

Almost as if that is a prerequisite for being a media-anointed-scientist in the first place.


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Nietzsche Redux And The Tyranny Of The Incoherent

“God is dead.” – Nietzsche

“Nietzsche is dead.” – God

Suitable for men’s room graffiti, we know.


We made quite a study of philosophy in our youth.  We cannot improve on Kierkegaard’s assessment of such an undertaking:

It is now about four years ago that I got the notion of wanting to try my luck as an author. I remember it quite clearly; it was on a Sunday, yes, that’s it, a Sunday afternoon. I was seated as usual, out-of-doors at the cafe in the Fredricksberg Garden. I had been a student for half a score of years. Although never lazy, all my activity nevertheless was like a glittering inactivity, a kind of occupation for which I still have a great partiality, and for which perhaps I even have a little genius. I read much, spent the remainder of the day idling and thinking, but that was all it came to.

So there I sat and smoked my cigar until I lapsed into thought. Among other thoughts I remember these: “You are going on,” I said to myself, “to become an old man, without being anything, and without really undertaking to do anything. On the other hand, wherever you look about you, in literature and in life, you see the celebrated names and figures, the precious and much heralded men who are coming into prominence and are much talked about, the many benefactors of the age who know how to benefit mankind by making life easier and easier, some by railways, others by omnibuses and steamboats, others by the telegraph, others by easily apprehended compendiums and short recitals of everything worth knowing, and finally the true benefactors of the age who make spiritual existence in virtue of thought easier and easier, yet more and more significant. And what are you doing?” Here my soliloquy was interrupted, for my cigar was smoked out and a new one had to be lit. So I smoked again, and then suddenly this thought flashed through my mind, “You must do something, but inasmuch as with your limited capacities it will be impossible to make anything easier than it has become, you must, with the same humanitarian enthusiasm as the others, undertake to make something harder.” This notion pleased me immensely, and at the same time it flattered me to think that I, like the rest of them, would be loved and esteemed by the whole community. For when all combine in every way to make everything easier, there remains only one possible danger, namely, that the ease becomes altogether too great; then there is only one want left, though it is not yet a felt want, when people will want difficulty. Out of love for mankind, and out of despair at my embarrassing situation, seeing that I had accomplished nothing and was unable to make anything easier than it had already been made, and moved by a genuine interest in those who make everything easy, I conceived it as my task to create difficulties everywhere.

In the 20th century at almost any university, even majoring in philosophy, you could escape any acquaintance at all with Kierkegaard (not that any sane person would want that); but it was impossible to escape from at least some familiarity with Nietzsche.

So Thus Spake Zarathustra and Beyond Good and Evil present themselves at some point, and the economy of expression afforded by aphorisms becomes a Thing,

Nietzsche had to be rehabilitated about the time we were engaged in our period of “glittering inactivity” ( late middle-to-late 20th century) because he had been so popular with Nazis.  Apparently this rehabilitation has accelerated and deepened in the time since, for as mainstream bellwether Wikipedia notes, later “scholars” have maintained that his apparent Nazi simpatico ideas were all a posthumous distortion by his demented, anti-semitic sister.

This is, to put it mildly, not plausible.  The “Ubermensch” is a central idea in Nietzsche’s thought.  Same for the “will to power”.  These are, you know, obviously Nazi friendly ideas.

And what else can we say about those central ideas? The ubermensch flows directly from an uncritical adoption of macro-evolution, a relatively new concept in Nietzche’s time, and of course an intellectual fad that lingers into the 21st century.  The argument is that the ubermensch is “…a goal humanity can set for itself…” and “…the creator of new values…” which is otherwise just a tad problematic in a post-modernist new age where everything before has been rejected and trashed.  You have to replace it with something, right?  Otherwise there’s nothing but nihilism.

But then that’s repeating ourselves.  Nothing but nihilism.  Get it?

So in order to reject the natural collapse into nihilism from this (frankly) silly musing about a “new [uber] man” – a bizarre, school boy fantasy better consigned to comic books than regarded as a serious contribution to western thought – we sanitize and over-complicate the thought and – again – blame Nietzsche’s horrible sister for the later affinity with Nazism.

But if you’re going to take the idea seriously – we don’t, but others do – it’s a natural fit both to nihilism and Nazism.  No way around that.  Nietzsche himself was said to have greatly feared the descent into the former as a consequence of his “theory”.  Post modernist Nietzsche fans should contemplate that for a change.

The “will to power“?  Let’s stipulate: it can be, lamentably, an accurate description and predictor of human behavior and to some extent the way the world works in general. Absent the phrase itself, the idea hardly originated with Nietzsche.  His contribution, rather, was to elevate the will to power as the highest principle of morality:  to be embraced, not resisted:

To speak of just or unjust in itself is quite senseless; in itself, of course, no injury, assault, exploitation, destruction can be ‘unjust,’ since life operates essentially, that is in its basic functions, through injury, assault, exploitation, destruction and simply cannot be thought of at all without this character. One must indeed grant something even more unpalatable: that, from the highest biological standpoint, legal conditions can never be other than exceptional conditions, since they constitute a partial restriction of the will of life, which is bent upon power, and are subordinate to its total goal as a single means: namely, as a means of creating greater units of power. A legal order thought of as sovereign and universal, not as a means in the struggle between power complexes but as a means of preventing all struggle in general perhaps after the communistic cliché of Dühring, that every will must consider every other will its equal—would be a principle hostile to life, an agent of the dissolution and destruction of man, an attempt to assassinate the future of man, a sign of weariness, a secret path to nothingness.

Intellectually, this is tediously familiar.  On the practical level, however, it is horribly fascinating:  we are enjoined to conduct ourselves and to order our lives in a manner so intellectually repugnant that in over two thousand years before Nietzsche not a single philosophical thinker of note had even seriously considered it.  We are to reject reason itself as mere emotional self-justification, the will to power dressed up as rational argument.  2+2=4 not because it does, but because in our insatiable desire for power we want it to.

Nietzsche was revolutionary indeed, but we don’t mean that as a compliment.

The decades long rehabilitation of Nietzsche has  apparently included the revelation – at least it’s a revelation to us – that although a scholar of ancient Greek and Latin he explicitly denigrated Parmenides and extolled Heraclitus:

Nietzsche’s philosophy, while innovative and revolutionary, was indebted to many predecessors. While at Basel, Nietzsche offered lecture courses on pre-Platonic philosophers for several years, and the text of this lecture series has been characterized as a “lost link” in the development of his thought. “In it concepts such as the will to power, the eternal return of the same, the overman, gay science, self-overcoming and so on receive rough, unnamed formulations and are linked to specific pre-Platonics, especially Heraclitus, who emerges as a pre-Platonic Nietzsche.” The pre-Socratic thinker Heraclitus was known for the rejection of the concept of being as a constant and eternal principle of universe, and his embrace of “flux” and incessant change. His symbolism of the world as “child play” marked by amoral spontaneity and lack of definite rules was appreciated by Nietzsche.  From his Heraclitean sympathy, Nietzsche was also a vociferous detractor of Parmenides, who opposed Heraclitus and believed all world is a single Being with no change at all.

How telling.  Where to begin?

Let’s leave the details out for a moment and bring out the broad brush to paint with.  Parmenides leads to Socrates and Plato, then of course to Aristotle, and together these can rightly be termed the foundation of western thought and even the foundation of western civilization, which later became Christian but always preserved the connection to these pre-Christian figures.

Heraclitus, on the other hand, although certainly known, was also a curiosity and a reject in western thought.

Ideas have consequences.  Ugh.

The difference is not complicated.  Heraclitus was exclusively empirical in approach, and Parmenides was exclusively rational.  Put another way, Heraclitus accepted sensory input as the only reality, and Parmenides rejected sensory input as unreal entirely.

Heraclitus and Parmenides could not have been further apart.

For more than two thousand years, though, western thought more or less starts with Parmenides and rejects Heraclitus.  Then around 1870 Nietzsche does the opposite.  What does it mean to do this?

As we have alluded to before, in posts and in comments and without purporting to take sides (although ultimately we do take sides but that’s not relevant right now), the belief in God is rational, but in order to be rational requires some level of rejection of the empirical, duh, because God is unseen.  Not as much rejection as Parmenides would have it, we note, but then it would be fair to describe the historical progression from Parmenides to Socrates to Plato and then to Aristotle as a gradual accommodation between the rational and the empirical, an accommodation that is possible if you start with Parmenides and reject Heraclitus but is impossible if you do the opposite.

Which is to say that if you embrace Heraclitus and reject Parmenides you will necessarily conclude that God is dead, just as Nietzsche did, because the belief in God’s existence is grounded in reason (rationality) but refuted by empirical observation.

But an astute reader will surely see the irony here:  this is, quite obviously, an entirely  rational process.  It is a simple syllogistic formulation:

Everything real is empirically observable.

God is not empirically observable.

Therefore God is not real.

The effort to elevate the empirical over reason by way of a syllogism, in other words, promptly self destructs.

If you go with Parmenides, on the other hand, the existence of a God becomes possible even though it is not empirically justified and can be seen as mandatory.  Because natural reason.*

So our ancestors in thought put Heraclitus behind them about the 3rd century B.C. and that’s where he stayed and that’s where he belonged, an historical and intellectual curiosity but ultimately unserious.

But then Nietzsche comes along and Heraclitus is reborn and becomes the new progenitor not of western thought and civilization, but rather post-western thought and civilization.  Which is a good way of putting it because this new worldview has no properties of its own; it exists solely as a negation of what came before it.

Kant no doubt thought it would be helpful to set forth a critique of pure reason, but in post modernism this is nothing but a fool’s errand.  To the post modernist, reason is not qualified to critique reason; that is the job of psychology:

Among his critique of traditional philosophy of KantDescartes and Plato in Beyond Good and Evil, Nietzsche attacked thing in itself and cogito ergo sum (“I think, therefore I am”) as unfalsifiable beliefs based on naive acceptance of previous notions and fallacies.  Philosopher Alasdair MacIntyre puts Nietzsche in a high place in the history of philosophy. While criticizing nihilism and Nietzsche together as a sign of general decay, he still commends him for recognizing psychological motives behind Kant and Hume‘s moral philosophy:

For it was Nietzsche’s historic achievement to understand more clearly than any other philosopher…not only that what purported to be appeals of objectivity were in fact expressions of subjective will, but also the nature of the problems that this posed for philosophy.

With apologies to Professor MacIntyre, it won’t do to call this an “historic achievement”.  Ascribing baser motives to what purport to be rational arguments has always been a common rhetorical device, and we mean “common” in the most derogatory sense:  intellectually low, a childish effort to one-up one’s interlocutor without engaging what is actually being asserted.  Reason maintains that propositions stand or fall on their own, and that whatever motives may be in play – and notably, it is not necessary to deny that that might be the case – are irrelevant.  Indeed the claim of reason is precisely that it inoculates against the infection of baser motives so as to better ascertain the truth of the matter.

It is therefore not surprising that those who deny this claim of reason would revert to the posture of Thrasymachus, but it is a bit startling to see this regression characterized as an historic achievement by those who should, and probably do, know better.  That is to say, Thrasymachus was a sophist.  In the modern sense.  Nietzsche’s revisionist intellectual somersaults are not historic achievements.

So at this point the question must be asked:  why do we pay any heed to Nietzsche at all?

Well, he was bereft of any genuine achievements, intellectual or otherwise, but that doesn’t prevent him from being post-modernism’s progenitor.  Indeed that is largely the point:  the meaninglessness of post-modernism begins with, and ought to begin with, a similarly meaningless “thinker”.  That doesn’t matter, because nothing matters.  That is the sole post-modernist principle, if you will, and it’s at work here.  Nietzsche matters precisely because he doesn’t.

Now.  Does all of this blather have any significance for the usual subject matter of this little blog-project of ours?

Oh, yes.

Nietzsche’s intellectual heirs came to dominate what we now call academia in the United States even before his unsavory (if posthumous) association with Nazism in the middle of the last century.  By the latter part of the 20th century this dominance had solidified into a monolith, particularly at the more prestigious universities, so much so that any hint of dissent from the foundational premises – atheism, disdain for religion, contempt for tradition, or at least any tradition pre-dating the degeneration into post-moderinism – became highly problematic.

It was impossible for his heirs, then, to discard Nietzsche – he was post-modernism’s intellectual father – so he had to be rehabilitated.  And that explains the revisionist work of Nietzsche “scholars”.

Law schools were especially vulnerable to intellectual fads and trendiness because, in the first place, in Nietzsche’s time they were brand new.  Law was one of the traditional “learned” professions, certainly, but “tradition”?  Meh.  We were busily forging the post-modern intellectual landscape out of the wreckage we ourselves had made of our intellectual past, and law schools were a trend.  A Thing.

Holmes and Nietzsche were contemporaries, but separated by language, culture and the Atlantic Ocean.  Yet how similar in outlook they were.  Talk about your weltgeist.

So Holmes gravitates towards eugenics (“…three generations of imbeciles are enough…”) during his much longer life and Nietzsche posthumously becomes a Nazi poster boy, and neither is at all surprising, given their common intellectual pedigrees, which is to say they didn’t have one, or maybe more properly speaking they had an anti-intellectual pedigree.

Anti-intellectualism has always been, and remains, an aberration in Europe; but in the United States it is part of our heritage.  European intellectuals could never fully embrace Nietzsche as much as American intellectuals have.  Europe has a vestigial loyalty to natural reason, even when they depart from it; America doesn’t.

Speaking of natural reason, the principle of non-contradiction is basic natural reasoning.  Unsurprisingly, Heraclitus rejected it and Parmenides surrendered to it, as any sane person will, at least to some degree.

So here’s a Europe-America contrast to illustrate the point.

Both Europe and America have a contentious political debate about abortion.  (We don’t want to run down that specific political road at the moment.  Just bear with us.)  Both have wound up “liberalizing” their legal treatment of abortion since the middle of the 20th century.  But in the US, some of the debate has involved the question of whether a human fetus is a “person”, because our SCOTUS in constitutionalizing the abortion issue in 1973 held that it wasn’t.  Which under the circumstances was, you know, a staggering intellectual error.  Europeans won’t truck with errors like that but Americans will because Nietzsche and Holmes and reason doesn’t matter and it’s all about what we want and who wins the struggle.  Will to power, doncha know.

So a few years later we are confronted with our error because the principle of non-contradiction will do that to you – and never mind that even at the time the SCOTUS made its ruling no less an abortion-favorable state than New York still dealt with abortion in its penal code under the heading “Abortion, Homicide and Related Offenses” – when some asshole shoots his pregnant girlfriend in the belly intending to kill the fetus and he succeeds and he’s charged with “murder”, but murder can only be of a “person” and so his lawyer says “what gives?” but the asshole is convicted and everyone is fine with that, including the SCOTUS, because non-contradiction is just an argument and arguments are cheap.

Just as with the definition of “person”, the most elementary natural reasoning is similarly dispatched in the courts all the time.  The examples are numberless.

So this is post-modernism applied. Quite simply, it is the tyranny of the incoherent.  It is madness, which is fitting because Nietzsche himself went mad at 44 and never recovered.  He lived out his days in the care of his mother and sister.  At one point he claimed to be the creator of the world.

If “the world” were to be redefined as the American legal profession and court system the claim would hardly be extravagant, though.



* Nietzsche and post-modernism reject “natural reason”, of course, because they have to, but there’s no way to characterize this other than bizarre and perverse.  It would be a considerable understatement to say that we humans (and indeed animals) are utterly dependent upon natural reason every day; it’s more like every waking moment of every day.  Literally every single movement and every single thought, however trivial, is the product of it.

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Petition of the Day…

on the SCOTUS blog is…..Long v. Pifster.

Ugh.  SCOTUS keeps revisiting this issue without clearing it up.  Do prosecutors get to lie and cheat to “obtain a conviction” without violating the defendant’s right to due process of law?  Such a hard, hard question.

Of course, merely being a SCOTUSblog petition of the day doesn’t mean there will be a grant.  But with an en banc opinion by Judge Easterbrook of the 7th circuit being appealed and Kirkland & Ellis representing the poor schmuck, it’s a pretty good bet.


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What a mess.

We have been constrained to point out, on numerous occasions, that the only import of the Giglio case is that prosecutors cannot circumvent Brady requirements by handing off the trial to a different prosecutor.  That is, the whole prosecutor’s office is bound by Brady, not just the one lawyer who tries the case.

Beyond that, Giglio is a Brady case – it post dates Brady; Napue is not a Brady case – it pre-dates Brady.

There is no “Napue-Giglio rule”, or at least never has been until Long v. Pfister came out of Judge Easterbrook’s pen, writing for the majority of an en banc 7th circuit panel.

We’ll have to revisit this highly problematic case again.  Soon.  It may be SCOTUS bound.

But briefly, before we leave the topic for now, we can’t help notice that Judge Easterbrook’s opinion is way behind the curve at least in one way:  we had a row with a commenter over the “unknown to the defense” requirement over two years ago.

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On “Certificates of Appealability” and Other Goings On in the 2nd Circuit

We can’t help but notice.  Indeed, we’ve noticed before.

Habeas.  It’s one of those “writs” that hearken back to our common law roots, when every time you went to a higher court to ask for some kind of relief your request, and the answer, was in the form of a writ.  There were several kinds of writs and they covered everything; or perhaps more accurately, everything had to be put in terms of the writs to be cognizable.

Certiorari, Prohibition, Mandamus, Habeas Corpus, Coram Nobis.

They’ve all been more or less abolished now.  Or maybe “codified” is a better word, because legislatures have somehow prescribed all the procedural rules and forms of pleadings for courts, and no one appears to have noticed the separation of powers problem there, either.

Except in the SCOTUS, that is.  In the SCOTUS, interestingly, the ancient writs are all there is.

For the most part the writs were explicitly abolished.  Except habeas corpus, which has a kind of fame and popular resonance, the vulgar public being vaguely aware that it’s known as the “Great Writ” and it’s in the constitution and it can’t be done away with because that’s a Very Bad Thing.

So habeas corpus has never been explicitly abolished; rather, it has been abolished in practice.  And whereas our ancestors appeared to have presumed that the threat to the Great Writ would come from a tyrannical executive, the real threat turned out to come from the courts themselves.

So here’s how it works.  If you’ve got a client who is unlawfully incarcerated and there’s a federal law issue, constitutional or otherwise, and it’s not a death penalty case, you can go ahead and bring a habeas corpus petition in a federal district court but it will be denied, because the most recent study of the matter found that out of a sample of 2384 of such cases meaningful relief was granted in only 14 – .6% of the time.  Effectively, federal habeas corpus petitions are never granted in non-death penalty cases.

After it’s denied by the district court there is no right to appeal, so you can’t appeal unless you get permission with a “certificate of appealability”.  The district court can grant that permission but, again, district courts never do, even though ostensibly permission to appeal should be granted if there is any arguable issue, and in truth there almost always is.

Moving on, though.

When the district court denies permission to appeal, you can ask the federal appeals court to grant permission, but they never do either.  Nationwide, such permission is denied 92% of the time.  In the 2nd circuit, it’s denied over 98% of the time.

So when the 2nd circuit grants a certificate of appealability, it’s a big deal, since they effectively never do.  But lo, they did just that.  Just recently.

In this case.

Yet far from being an encouraging development, this is just depressingly more of the same.  The habeas petitioner is a billionaire.  He’s represented by the whitest of the white shoe law firms.

Why depressing?

Because the law of federal habeas corpus in the United States in the 21st century is, on the one hand, incoherent:  federal constitutional problems with criminal convictions warranting habeas relief are deemed not to exist to any significant degree.  Unless the death penalty is involved, where they somehow become so abundant that habeas relief is granted around 50% of the time.  It should go without saying that this cannot possibly be true.

But on the other hand, the incoherence disappears if one views the entire apparatus as hopelessly mendacious and heavily politicized.  Death penalty abolitionists are a peculiarly recognized interest group in the federal courts, so they can routinely expect otherwise non-existent habeas relief.  Gay rights are perennially fashionable among the chattering classes, so they receive otherwise non-existent en banc review.  Elected public officials are simpatico with judges, so their criminal convictions, otherwise sacrosanct on appeal, are routinely overturned.  And the solicitude for Wall Street chiselers billionaires con-artists market participants appears to be limitless – especially when they use their plunder to pay the right law firms to represent them.

The courts are vehicles of the compulsion of human beings, in both civil and criminal matters.  This is tolerable only if the compulsion is fairly and even handedly applied, or at least there is a commitment to doing so.  In the absence of such a commitment, the courts become odious and morally repulsive.

But this is just an argument.  And arguments are cheap.


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Recently Overheard

“Arguments are cheap.”

Since arguments are the very warp and woof of our supposedly “adversarial” system of justice, such a claim on the part of one of the system’s participants represents a thoroughgoing loss of faith in the system itself.

Ugh, as we often lament over here at LoS.

It is not, of course, that there aren’t some arguments that are indeed “cheap”, in the sense that they are invalid, in some cases even to the point of being silly.  Or even self-contradictory.  Indeed we ourselves have encountered, just recently, a series of such arguments.  One would think that the opposing and far more cogent – indeed correct – arguments would therefore prevail and all would be well, but that’s not how it goes.

Thus the effect of the facile cynicism embodied in the statement “arguments are cheap”:  there is no difference between correct and incorrect arguments.  They’re all “cheap”, and wrong prevails over right.

What considerations drive such an outcome, an outcome where the clearly correct is rejected in favor of the clearly incorrect?  Well, it’s kind of hard to say, isn’t it?  Presumably it is something “expensive” as opposed to the valueless import of a valid argument.

But, expensive in what sense?  To whom?

We can hazard a guess.  There are institutional concerns, surely.  They have an importance beyond the outcome in this or that particular case.  The decision makers do not make their decisions in isolation from their stewardship of the institutions that have selected them to make the decisions in the first place.

Accordingly, it is not really fair to describe our system of justice as “adversarial”, because the contentions of the parties to a dispute, their arguments for or against, do not drive – indeed, do not even really influence – the outcome.

Such a system is much better described as “administrative”.  Administrative adjudication of disputes is a characteristic not of the Anglo-American legal tradition, but rather of communist countries.

That’s one problem, then.

The corollary, just as important and just as large, is that this reality – so obviously and profoundly alien to the country’s traditions – cannot be openly acknowledged.  We must retain a pretense that we have not abandoned our heritage.

But we have.

The net result is that we go through an elaborate series of motions (literally and figuratively) that, while important in terms of addressing the corollary problem are in fact meaningless.

Which is to say, all of that effort serves an odious purpose – deceiving ourselves and others – that should not be undertaken at all, properly speaking.

Ugh, again.


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“Evidence” v. Reasoning

Are we empiricists or rationalists?  Or something else?

Some years ago we had a case where a house exploded.  Just blew to smithereens at about mid day after a late winter snow covering.  When you get a “high order blast” like that, you might suspect a bomb but natural gas, which is pumped into just about every home in the northeast, appears to everyone to be the likely culprit, as indeed it was in this case. Natural gas is probably responsible for a lot  more fires than out and out explosions but is almost never an official suspect there.  More on that later.  But not too much.

The house was occupied by two men who were both killed instantly.  We represented the estate of a woman who was not killed in the blast, but was rather buried under the rubble for a while and badly burned by the ensuing fire.  Many neighbors from the surrounding area had made heroic efforts to free her but were unsuccessful.  One neighbor held her hand and tried to comfort her until he was beaten back by the flames.

The fire department finally freed her and she was taken away by ambulance.  She endured six months of gruesome treatments, including multiple amputations, before expiring in the hospital.

She was the mother of one of the occupants of the house.

Of course such a scene receives a lot of official attention.  The fire department is called and responds quickly – “first responders” doncha know – but there’s more to it than that, because whether it’s a fire or an explosion one thing they want to make sure of is that there’s no more gas being pumped into the location, and so each and every time a fire or explosion occurs in a home in a somewhat densely populated area like a city the fire department gets the word first through a 911 call, and then the fire department calls the local public utility to get them on the scene to shut off the gas supply to the house.

All perfectly reasonable, of course.

But here’s what happens next.  The public utility, which receives immediate notice of the occurrence, dispatches a crew to secure the gas supply to the location, but they also dispatch their “investigator”.  Who is the investigator?  Invariably, he is a retired fireman who is collecting his public pension and now augments that income with a lucrative position working for the public utility.  He naturally leads the younger firefighters, who look up to him not only for his many years of experience but also because he already has what they one day hope to get:  a very good living and semi-retirement based upon his years of service and expertise thus acquired.

This is all understandable.  But it is also latent with unwholesome possibilities, because the public utility investigator’s job can’t help but have an element – relatively stronger or weaker depending on the scrupulosity of the person involved – of seeking to protect the public utility from being found at fault for a disaster which in this case involved two dead people from the get-go and another seriously injured person who would die later.

Want a thumbnail sketch of how this works in practice?  When a house literally explodes and no one has been, say, mixing nitroglycerin in the basement there is little chance for there to be a plausible cause other than natural gas, but without going on about it just take our word that because of basic physics and arithmetic, for every explosion caused by natural gas, there are about 10 fires.

Yet when is that last time you read or heard from news sources that a house fire had been caused by natural gas?

But let’s leave further questions along those lines for another time.

In the case at hand things went down pretty much as we just described.  Of course, everyone wants to know why the house blew to smithereens like that, and that’s what the fire investigators want to tell us.  Because of the high order blast we pretty much know it was natural gas, but how did the gas accumulate and what sparked the blast?

The official investigation focused on one male occupant, the son of the woman whose estate we represented later on.  It was a deliberate act, it said.  It was suicide.  The son was “troubled”, and decided to take his mother with him, so he waited until she arrived for a visit before he blew the place up.

What a horrible story.  What “evidence” led the “investigation” to conclude this?

In the kitchen of the house there was a gas stove, a type you have probably seen many times, with four burners on top controlled by valves operated by knobs on a panel on the front of the stove.  Three of those four valves were turned on in the ‘high’ position.

The son was a journeyman mechanic who had had some minor scrapes with the law.

That’s it.  There was no suicide note.  There was no advanced threat that anyone knew of. There had been no domestic violence between the young man and the mother.

One obvious consequence of this conclusion, of course, is that the public utility company, whose ‘investigator’ would naturally have a lot of influence with the other investigators, would certainly not be at fault for the rogue criminal act of one of the occupants of the house.

So years later we get involved.  We decided to do what seemed at the time an obvious thing:  find previous occupants of the premises to see if they had anything to contribute in the way of evidence.  And that’s what we did.  We tracked down the previous four or five tenants of the house.  And they all said the same thing:  there was often a very strong gas odor in the stairwell leading up from the basement to the side door of the house, the door that was commonly used for ingress and egress.  You would enter the house through that door and you’d be on a landing.  To the right were the stairs leading to the basement, and straight ahead would be a few steps up to a door that opened into the kitchen.

Where the stove was.

The most recent tenants – that is, the ones just prior to the explosion – were a nice young couple who said they had moved out because despite a number of 911 calls about the gas odor in the stairwell the condition had never been rectified and they believed it was unsafe.  This was all contemporaneously documented.

So.  You have two investigations:  one by “officials” done at or about the time the house exploded; and one by us, a couple of years later.*  These two investigations went in very different directions and reached very different conclusions.  As we said, the “officials” focused on a suicide theory, and we concluded that natural gas coming from a gas leak outside the house “migrated” into the basement of the house and in certain conditions would accumulate from there in sufficient quantities to cause the explosion that actually occurred.

The “evidence” – that is, the facts – supporting both investigations and their conclusions were not in dispute. That is, we did not dispute that the three burners on the stove were fully open in the “high” position, and we did not dispute that the deceased son was a journeyman mechanic who had had some minor scrapes with the law in his time on earth.  And no one, to our knowledge, disputed our evidence in the form of all those former tenants; an expert who opined that gas can “migrate” surprisingly long distances and accumulate in a remote location from a gas leak (Indeed, when we sued the public utility company their own records revealed that they were aware of just such scenarios.); an identified leak in a service line pipe, close enough to the house, that we knew existed at the time because it was eventually fixed by the public utility company and they had made a record of the repair; and a disinterested eye witness from the house behind, who was changing his granddaughter’s diaper, looking out a window, observed our decedent arrive by car, walk up to that side door, open it and…boom.

So much for the evidence.  What remains to be done is reasoning.

We start with the proposition that the law prescribes a rebuttable presumption against suicide.  That is, by law we are to disbelieve suicide unless there is evidence that overcomes our disbelief.

We then consider the official investigation evidence.  We conclude that journeyman mechanics who have had minor scrapes with the law are relatively common, but are not commonly suicidal for those reasons.  And we conclude that the gas stove burners in the “high” position are evidence of…cooking on the stove, which is the ordinary use of the burners on the stove, not homicidal and/or suicidal activity.

Indeed, we consider the conclusion that either of these items of evidence, individually or together, support a suicide theory to be unserious in the extreme, especially in view of the law’s instruction that the absence of suicide is to be presumed.  We would say the idea was laughable, but we are talking about the violent and untimely deaths of three people.

By contrast, our evidence, gathered later, naturally leads to the conclusion we drew:  that gas from a gas leak from outside the house had been migrating into the basement and eventually caused the house to explode, killing three people.**

The court before whom we appeared “reasoned” differently, however.  It’s like this:  the suicide theory is “official”, coming from the fire department and the public utility, and is therefore credible; the utility company’s expert is from MIT; the law firm representing the utility company is the best.  The migrating gas leak theory is from a lesser lawyer who just wants money no matter how much he pretends otherwise.

Which is to say that the court before whom we appeared didn’t reason at all.  It judged, of course, in the sense of deciding who should win and who should lose.  But there was no reasoning process worthy of the name involved.  It would be fairer to say that the court’s decision rested upon one reverse ad hominem built upon another – that is, a credential contest – culminating in the non-sequitur that the house exploded due to the deliberate suicidal act of one of the occupants.***  “Reasoning” at this low a level should be precluded by a high school diploma; its presence in people who have completed university and graduate school is a staggering indictment of something – what, we dare not say at the moment.

In any event, this low level is what routinely passes for reasoning in American courts, from the top on down.  Indeed, our last post was about a recent decision from the SCOTUS endorsing the intellectually appalling “whoever gets the most witnesses wins” idea of trials, an idea trial courts themselves try to eradicate from the minds of potential jurors, or at least are supposed to, through standard jury instructions.  The “most witnesses” rule and the “better credentials” rule occupy the same intellectual terrain:  the hopelessly inane.


Why do we bring this up, you ask?

Well, because it’s an example of the different, but related roles of:  a) evidence gathering; and b) the reasoning process, in order to arrive at the truth or some approximation of it. Of course, a significant segment of the legal profession considers this a fool’s errand ab initio, and it’s only our opinion but we think that is a deceptively large part of the problem we are discussing.

Query:  of the two – that is, the gathering of evidence and the reasoning process – which is more important?  This will determine the answer to the question we asked at the beginning of this post.

Answer:  in general, it’s hard to say, both being a sine qua non of concluding anything at all; but in the specific example we have described it should be relatively easy to understand that the reasoning process is the part that makes a difference in figuring out what happened.  That is, finding the truth of the matter.  Because with two and only two theories to choose from, one of which is supported by evidence and properly reasoned, the other being a more or less idiotic non-sequitur, right reasoning dictates the result.

But now, query:  what if a judge is a dogmatic empiricist?  That is, the judge believes that “evidence” is all that matters, and “neutrality” requires agnosticism as to the meaning of the evidence?

Answer:  the dogmatic empiricist rejects the valid role of reasoning and is forced to regard a well reasoned interpretation of evidence and an idiotic one as equivalent.

Our ancestors in thought, from the ancient Greeks through the medieval thinkers to were aware of this problem, and so for centuries regarded the reasoning process as superior to observation.  Empiricism inverts this relationship, regarding reasoning as “the servant of the passions”, among other less salutary things, and essentially denying the obvious problem that empirical data, without rational interpretation, is just so much random intellectual noise.

Ideas have consequences, especially in the justice system and the courts.  Ugh.


* We fancy ourselves an “official” as well, having been thoroughly vetted for competence and moral integrity, but there doesn’t seem to be a lot of agreement with us on that point.

**That is not enough, by the way, to say that the public utility company was at fault, in the sense of being negligent.  But it does make such a result possible, whereas with the official suicide theory it’s not possible.

***Yet another factor in the court’s “reasoning” was the relatively low status of the dead and the low rent character of the house and the neighborhood.  We have no further comment.






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