Mutual Admiration Society

The Solicitor General’s Office and the SCOTUS.

Things get a little slow over at the SCOTUS blog in the summer, so we guess they figure it’s time to publish the SCOTUS praising lawyers from the SG’s office, or lawyers from the SG’s office praising each other, or the SCOTUS, or vice versa.  Or whatever.

They’re just a little insulated.  As we have noted before.




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Eureka! The Pied Piper Of The Amateur Epistemologists

His name is Brian Leiter.  He’s a law professor at the University of Chicago.  And he’s a big fan of Nietzsche.  He writes a blog about it.


Odd that we had never run across the man before – we have our own interest in the subject – because clearly he’s been at it a while.

Somewhat recently we socialized with one of our friends from our undergraduate years who was also a philosophy major but never became a member of the legal profession, as we did.  We were finally able to complain, to someone who would actually understand from outside, about the sheer horror of a real world practical profession in the grip of the Nietzschean insanity, inflicting its atrocities on the guilty and innocent alike, and preposterously dubbing itself a “justice” system.  He commiserated.

Where to begin?  Maybe with Xenophanes, who around the 6th century BC, and not long before Parmenides (whom we have discussed before) may have been the first western “thinker” to lend intellectual weight to what could be termed a “monotheistic” view of things.  It’s an imprecise use of the term, though, because neither Xenophanes nor Parmenides was explicitly advocating a “one god” hypothesis in the religious sense.  They were just thinking things through.

Reasoning, in other words.

So for Parmenides a thing cannot both “be” and “not be”; and since a thing changing necessarily entails going from one thing (that it presently is) to another, different thing  (that it presently is not ) you’d have both being and non-being in the same thing at the same time, which is logically impossible.  Or so the argument goes.  And then it follows that whatever is truly real must be one thing only, entire and complete.  And it must be unchanging and un-moving.  Therefore eternal.

And it also follows from there that everything we see and experience changes and moves and must therefore not be real and true.

Of course this was all rejected by Heraclitus at the time, but western thought in turn rejected him and came to embrace a modified version of the Xenophanes/Parmenides outlook, which did not reject the empirically observed reality entirely but rather accorded it a lesser reality and lesser importance than the unobserved reality that was “known”, if at all, only through reason, which was regarded as a faculty higher than mere sensory perception.

And what the west also came to understand about all this was that this view of things – that is, an unobserved, unchanging and unitary reality underlying the sensory, multiplicitous and changing perceived reality – was not the same as religious ideas of one god, heaven and hell.  But it was consonant with those religious ideas, and it was arrived at independently by respected thinkers who were not religiously inclined.  Which is to say that there were at least two independent sources of intellectual support for monotheistic belief.  And this in turn lends weight to such beliefs.  And they became, as they remain today, reasonable to believe.

But professor Leiter and the followers of Nietzsche base their view of things on the opposite proposition – that traditional monotheistic belief is unreasonable and has been superseded in the age of “science”.  They do not deny that there is an ostensibly valid process of reasoning that leads to monotheistic belief; rather, they deny that the process of reasoning itself is anything more than rationalization of a position taken out of psychological or emotional need or desire.

This is exactly the position of the legal profession and justice system in the United States circa 2019.  It is as untenable and destructive for that system as it was for Nietzsche himself who, as we noted before, went literally mad and became an invalid.  As it probably also is for Professor Leiter, who may have had a weird episode or two of his own.

The process of reasoning is mysterious and, it is true, a source of constant frustration for Nietzsche and his followers.  Not least because it is the most inescapable fact of our existence, no matter how mysterious it may otherwise be.  Nietzsche therefore affirmed reason even as he denied it because he had to use reason to attack reason, because reason is the only way we ever understand anything.  Nietzsche’s entire mode of “thought” is immediately self-refuting.  It’s idiotic.

The answer to that from the Nietzscheans, of course, is to deny that self-refutation matters.  But this is obviously pathological.  And then that objection is answered with psychological projection:  the Nietzschean makes the “pathological” accusation preemptively, echoing Hume’s declaration that reason is just the servant of the passions.  Thus, the argument goes, the well reasoned rejection of Nietzsche is just as pathological as the poorly reasoned “thought” of Nietzsche.  According to the Nieszscheans, anyway.

Nietzsche’s philosophy has an attraction for an immature mind that seeks primarily to outwit an interlocutor, not to attain learning or insight or wisdom through our exchanges with others but rather to brow-beat them into what is seen as a “losing” position.  So in addition to being idiotic it’s childish, too.

All of us philosophy majors encountered Nietzscheans along the way.  A few of us actually became Nietzscheans (not us personally, of course) but usually even those few who experienced an attraction to Nietzsche abandoned the whole thing after a while.  The solution with respect to anyone who didn’t would be to stop interacting with them.  Interaction would be obviously pointless if not eventually destructive for all involved.

Professor Leiter loves the “trolley problem“, because it supposedly undermines the basic traditional moral proscription against killing human beings.  You know, the trolley is rolling down the track and it’s going to kill five people but if you switch the track the five people will be saved but the trolley will still kill one person and that person is Beethoven, who has yet to write the 9th symphony.

But this supposed conundrum is both impossible and unintelligible for the radical empiricist a Nietzschean claims to be:  it can’t possibly be known that Beethoven will write the 9th symphony if he hasn’t written it yet.

This is why we say it’s tedious dealing with these arguments.  They are so poorly reasoned and so easily exposed, always exactly the same way:  pointing out the glaring contradictions.  We could have patience with youngsters sorting their way through their own thinking about things, who pass through a Nietzsche phase.  But we can’t long abide such nonsense in adults, who we would ordinarily just treat dismissively.  Or not at all.

But we’re not allowed to ignore a Nietzschean justice system.  It comes after you meaning to jam Nietzsche’s pathology and corruption of thought down your throat.  It has force at its disposal.  It’s a toddler with a loaded revolver.  It’s a nightmare.  It would be a sizable accomplishment to bring even a scintilla of sanity to it.


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John Paul Stevens, RIP

He became an important force for good on the SCOTUS, at least when it came to fundamental fairness to criminal defendants.  Which, as we have noted many times, is probably the most important and “core function” of courts.

As you might imagine, then, in his later years on the court he primarily dissented.  The intellectual earth had shifted dramatically during his professional life towards what we sometimes refer to here as “post-modernism”, or as it might have been called in a better time, “stupidity” or “insanity”.  We refer you to some earlier posts if you’d like that fleshed out a bit.

John Paul Stevens was World War II generation.  At 99 we’re sure he was among the most long-lived of the bunch.  And he was still pretty quick with banter at oral arguments in the SCOTUS as recently as 2009, when he would have been 90 (see pp. 18-19 in the link)

For our part, we’ll remember him most fondly for his rather profound dissenting opinions in two rather important cases:  1) United States v. Williams, which held over JPS’s objection that the requirements of Brady v. Maryland never apply to proceedings before a grand jury; and Albright v. Oliver, which basically held nothing (plurality opinion) but has caused a lot of mischief, leading to tragedy and suffering for many, including to some limited degree ourselves.  For what it’s worth, both or those opinions – one by Scalia, the other by Rehnquist – suffer from the post-modernism disease from which Stevens, being from a more traditional-minded generation, was relatively free.

Thus his dissents.

REQUIEM aeternam dona ei, Domine, et lux perpetua luceat ei. Requiescat in pace. Amen.

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Double Trouble

Sometimes we think a subject we visited previously deserves another mention or two.  We have wondered about the constitutional principle of “separation of powers” with regard to public prosecutors, who are members of both the executive and judicial branches of government.

How, we have wondered, can that be?

It appears that the question simply isn’t asked.  Or hasn’t been.  Except around here.

In practical terms we note that in the UK, lawyers are not permitted to just do prosecution or just do defense.  They must do both, periodically.  This is very much unlike our own system in the US.  True, there are prosecutors who segue from the prosecutor’s office to the defense side.  But it’s generally never to return.

And here’s a follow on problem:  judges are overwhelmingly selected from among the ones that stay, the ones that never leave the fold of the prosecutor “community”.  So we have chronicled elsewhere.

We were also able to identify, in previous discussions, other aspects of this problem that wind up being deeply troubling.

First, we violate the separation of powers by allowing attorneys who are members of the executive branch represent that same branch in court both as executive branch prosecutors and as one of the officers of the court itself.  Then, aggravating that problem, we overwhelmingly pick judges from among that same group of lawyers, judges who then talk about their job as “protecting the public”, which is flatly and dangerously wrong by any sensible interpretation.

It is a little surprising to us that arguments about this problem have apparently never been raised or addressed in an American court.  Only by our increasingly unread blog.

Then again, our ideas for amending our constitution have not gone over well before.  We see no reason to expect that this idea will catch on, or even generate any interest, either.

But that’s probably too bad.  The fact that something has no popularity doesn’t mean it’s wrong.  Just unpopular.




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The SCOTUS “Materiality” Quagmire (Corrected)


The term is coming to an end and we’re still stuck in it.  A faint effort to clarify things took place with McDonough v. Smith.  We weighed in with an amicus brief* and a motion for divided argument.  Good thing, too, because the Solicitor General also weighed in – very surprisingly on the same side of the “v” with us, and accordingly at the same time – with an amicus brief and a motion for divided argument.  The SG fared better than we did – not a surprise on that score, of course – but not as well as he might have: look at pages 25-26 of the SG brief.  We have never seen such an explicit, succinct and of course wrong-headed conflation of Brady and Mooney cases in print.  It’s actually hard to accept that it wasn’t deliberate:

In the due-process context, this Court has explained that the knowing use of fabricated evidence to obtain a conviction violates due process only where there is a “reasonable likelihood” that the evidence “could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976); cf. Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]here is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.”).

Ugh.  We’ve been over this so many times.

Thankfully, though – and we can’t rule out that it is somewhat thanks to us and our little effort – McDonough didn’t go down that road with the SG at all.  In fact, McDonough did so little in terms of defining or clarifying anything that there were three dissenting votes for the sole proposition that the SCOTUS should never have taken up the case to begin with because it was a waste of everyone’s time and effort.

So yes, we’re still in the quicksand. But at least we haven’t sunk any deeper.

Meanwhile, the SCOTUS is still at it, and we don’t know quite what to make of it all.  We noted another case, McGee v. McFadden, here after its ninth relist.  It has now presumably been relisted again but there are no more conferences this term.  Guess it’s held until next term.  But in truth we don’t know.

We also noticed another very similar case that came to SCOTUS’ attention at about the same time as McGee.  That one was Owens v. Texas.  Seemed to us to be as good or better than McGee on the whole “materiality” thing, but it was denied on June 24th.  At least, if you look at the State’s boilerplate brief in response, they interpreted the SCOTUS interest as having to do entirely with Brady materiality.

So that’s where things are and they get quiet up at the SCOTUS for the summer.  But we’ll be keeping an eye on McGee and whatever occasional orders come down until the new term starts in October.  And if any of our readers – all three of them – come across anything else interesting along these lines, such as cases coming out of the federal courts of appeal or state high courts dealing with the same issue, we’d be grateful if you’d bring it or them to our attention.

We have our reasons.  Ugh.

*We note that for the second time the link to the brief we filed at the SCOTUS has disappeared. Now the SCOTUS case page just shows that the brief was filed, but there is no link, alone among all the other amicus briefs filed. We are not paranoid if they really are out to get us!  In any event, most of the brief wound up being moot in the sense that the SG abandoned the position he had taken in the Pottawattamie case 10 years ago, and argued instead that the due process proscriptions against deliberate lying a cheating by prosecutors and police were not restricted to things that happen at trial. We think it’s possible that this shift in position was due to our feeble efforts as well, but that’s a rabbit hole we doubt we’ll ever get to the bottom of.

CORRECTION:  Apparently there is another conference tomorrow. And we can’t be sure but to us it seems passing weird that McDonough is on for it, post decision and opinion.  Is the SCOTUS going to vacate its opinion and “DIG” the case? We don’t know.

And of course McGee is on for its tenth relist.  Usually, that many relists is indicative not of a cert grant but rather a dissenting opinion from the denial of cert. But we think the McGee situation is also weird, so we’re a bit bewildered by this one as well.



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One Down, Two To Go…

So the SCOTUS issued its opinion in Gamble v. United States this morning. 7-2 in favor of retaining the rule that the federal government can prosecute you for the same thing the state government prosecuted you for (and vice versa), without violating the rule against “Double Jeopardy”, because the state and federal governments are “separate sovereigns”

Ugh.  We opined on the illusory nature of our double jeopardy “guarantee” before.  The decision in Gamble doesn’t help matters.

One somewhat interesting SCOTUS observation, though. Justice Gorsuch, who wrote a separate dissenting opinion, is establishing himself as the most interesting SCOTUS Justice. He’s hard to read, certainly hard to pigeonhole.  His writing style is conversational and lively.  Maybe some other adjectives, too, but nothing that comes to mind at the moment.



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The Alternative Narrative

So, let’s take the occasion of Amanda Knox’s return to Italy to tell a different story based on the same evidence. This is the most important exercise in dealing with circumstantial evidence, which is great if it has only one plausible explanation, and worthless if it has more than one.  We recall seeing one of those lawyer type movies about just such an exercise at some point in our youth.

We begin with the notion of the “alibi” defense.  We have noted previously that alibis are an extremely dangerous defense to offer, because if they are not ironclad, an inference will typically be drawn that not only is the propounder wrong about where they were and when, but has actually been deliberately deceptive about it, which in turn is seen as an admission of guilt.

So, back when we were writing about this matter – because current at the time – someone suggested that Meredith Kercher’s boyfriend had been ruled out early on by the police – owing to an alibi – but that the alibi was not ironclad. We don’t know one way or the other, and of course we are hypothesizing only, but if we start from the proposition that his alibi was no good we can tentatively infer deceptiveness and even guilt, and go on to construct the following narrative.

Everyone is away from the Perugia flat for the holiday except for Meredith and Amanda, but Amanda has been spending her time at her boyfriend’s leaving Meredith alone, with the flat all to herself. Meredith’s boyfriend is supposed to be out of town, too, but he decides to return and surprise Meredith. Unfortunately, this leads him to discover that Meredith is having an encounter with Rudy Guede.  He watches the whole episode from outside, feeling increasingly angry and betrayed. When he sees Guede leave he enters the flat to confront Meredith, there is a violent struggle that spills over into Filomena’s room when Meredith attempts to flee, the boyfriend winds up killing Meredith and then he leaves.

In fact, however, Guede had not left the flat, he had only left Meredith’s room to use the bathroom.  Frightened by the commotion he heard, he waited in the bathroom until it stopped and the flat was again silent.  He then exits and goes back to Meredith’s room where he finds her dead.  He is traumatized and ashamed that he remained hidden and didn’t do anything to help her, he worries that people will think he did it, that there is evidence on her cell phone(s) connecting him to the crime.

So he covers her body with a duvet, goes back to the bathroom to check his appearance in the mirror, goes back to Meredith’s room to retrieve his shoes, takes Meredith’s cell phones and keys and some money.  When he looks at the shoes he sees blood on the right one so he leaves that one off, puts on the left shoe, walks out of the flat before putting on the other shoe.  Of course there was blood on the left shoe, too, he just didn’t see it. There was blood on his bare right foot too that he didn’t see.

He keeps the keys and money and tosses the cell phones into some bushes and leaves the area.

So, perhaps this accounts for the physical evidence that we are aware of, though maybe not, we would need some helpful critique to determine that.

Note that in any event DNA of the boyfriend in the flat is of limited or no use, since it can be presumed he was a frequent visitor there.

Rudy Guede never tells this story because he feels more ashamed of it than the story that he killed Meredith. The boyfriend is never seriously considered by police, who accepted his faulty alibi and focused entirely on Amanda Knox.

Plausible? We think so. We’ll take to the twitters, which is very active on this subject at the moment, and see what the partisans come up with.

Two things, however. First, we are not accusing the boyfriend, simply hypothesizing, trying to fit evidence into an alternative narrative.  And second, we don’t mean to treat this subject like some intellectual game, or a fictional whodunit. We are aware of the tragedy at the bottom of this speculation, we do not wish to fan the flames, but people are discussing the subject no matter what we do or don’t do, and a little rationality can’t hurt, we figure.



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