@ApplesauceIrishCream's banner p




0 followers   follows 0 users  
joined 2022 September 06 20:15:39 UTC


User ID: 882



0 followers   follows 0 users   joined 2022 September 06 20:15:39 UTC


No bio...


User ID: 882

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

I think the liberal justices, generally, take the underlying sentiment of the Preamble seriously, and see the rest of the Constitution as the means to the ends laid out above. The Supreme Court is one of the major branches of the government thereby established, and so it ought to carry its weight in pursuing the goals of the Preamble. Therefore, the Court ought to promote and defend good policies, and reject bad policies. After all, in doing so, it isn't making policy, but merely exercising judgment to ensure that the popular branches are properly oriented to the "general Welfare."

I'd go so far as to say that about half that logic is uncontroversial, but the remainder draws in some premises that are not shared.

The liberal justices largely follow the dominant philosophy of the American legal profession--legal realism. This philosophy was formulated over a hundred years ago, in its rejection of the dominant mode of thinking at the time, which the realists called 'legal formalism.'

The formalist frame was that every case had an objectively best outcome, determined by applying the governing law to the operative facts. Sometimes judges would fail in this task, and sometimes even the best outcome wasn't very good--or even good at all--but there was a best outcome to be found.

The realists rejected this frame, accusing the formalists of feigning their roles as a disinterested third party merely applying law to facts mechanistically, and instead smuggling in their own policy preferences in determining outcomes. In fact, the realists claimed that this was inevitable: no matter how much the formalists claimed to be acting in good faith in trying to be neutral arbiters, they were actually just another set of partisan actors on the stage of national politics. Since neutral disinterest was only a convenient mask for the formalists, it's all politics anyway, and the realists might as well pursue their own policy preferences unhindered by feigned neutrality.

The core of Justice Scalia's judicial philosophy was a rejection of legal realism, and a return to the narrow conception of the judge's role commonly understood beforehand. While the realists correctly pointed out that no judge could consistently be perfectly disinterested, the ideal of neutrality was too important to jettison, and it is the obligation of every judge to stick as close to that ideal as possible. Judges are not permitted to reject bad policy solely on the basis of its badness; they are only allowed to overturn any policy--good or bad--if it is inconsistent with a controlling authority, and properly presented as part of a real 'case or controversy.'

and also for saying that a police shooting was "technically" justified - being not sufficiently sympathetic to the police officer.

You're misrepresenting my criticism. My point was that your description of this specific situation was wrong, not the degree of sympathy you showed. It is in fact quite a big deal that people know where the line is between good behavior and bad, and saying that Wilson was "technically" in the clear is simply not true. In order to avoid further unjust treatment, it had to be proved that Wilson was innocent beyond a reasonable doubt--a complete inversion of the standards of criminal law--and he did so, meeting an unjust burden. Again, this was not a close case!

I don't know guys, I'm just trying to be neutral here!

Splitting the difference between the truth and a lie is not admirable.

I largely agree with your second paragraph; one of my biggest meta-problems with BLM at the time was that it would prevent meaningful, productive police reform for a generation. I was wrong in that assessment in my undue optimism--the fallout has been much worse than I anticipated.

That last detail is quite the perfect cherry on top of a shit sundae; well (?) played, dramatic irony!

For the whole Ferguson situation, my impression was that the shooting of Michael Brown was technically justified, but it might have been the only correct thing the cops had done there in a long time. Michael Brown's actions were technically wrong, but more understandable, and did succeed in shining a light onto lots of actual misconduct.

Technically, my ass. The only reason Wilson didn't get railroaded by a system that badly wanted to was because it wasn't remotely a close case. Wilson's actions were fully justified by large margins, and he had extensive physical evidence to prove it.

I believe that our society has a more general problem of militarization of the police and over-policing of many things that applies to all people. I think that the recent racial focus is misguided and serves to obscure the real problem by insisting on a false narrative and thereby causing people to take the opposite position of excessively defending the police when they see the lies.

And see, I would agree with all of this, except for the "excessively defending the police" claim in the same post where you seem to present the Michael Brown case as somehow borderline! Police misconduct absolutely exists, and absolutely should be punished, but you need to use valid examples.

Stories I thought were funny...

My own family background was pretty different, but shit happens to everybody, and I can easily think of a personal story that's kinda funny in a black humor way now, but was nightmare fuel at the time and to most audiences.

...select company (Nurses, EMS workers, and lawyers...

Yeah, that's fair.

It is entirely possible to commit murder recklessly--the classical term is "depraved heart murder." Your intuition does not match criminal law, which does generally put some forms of recklessness in the same category as intentional action. There are cases where a distinction is drawn between them, but those are exceptions (attempt; crimes with the specific element "did X with the intent to do Y;" etc.), and those exceptions are due to the particulars of those crimes, not their severity.

Recklessness is approximately defined as "knew that a significant risk of harm existed, took prohibited action despite the risk." It is distinct from negligence in that the negligent person was not consciously aware of the risk at the time, while the reckless person knew and disregarded.

I'm not arguing it can't be bad, I'm arguing that all else being equal negligence or recklessness are seen to be not quite as bad as a planned intention.

Sure, possibly. But the rest of your argument doesn't automatically follow--if one may be executed for an intentional murder, and also executed for a reckless murder, does it matter that "recklessness [is] not quite as bad"? Just because you've shown a distinction does not mean you've shown a categorical difference.

That is what the people around me seem to believe, it's what I believe and I don't think its a coincidence that our criminal justice system operates the same way.

I don't doubt that's what you and the people around you believe. It is not true that the criminal law agrees with you--again, the default rule in criminal law is that recklessness is an equally culpable mental state to intent.

Even the legal system, which only criminalizes a minority of 'bad behavior,' commonly treats some cases of accidental harm as equivalent to deliberate harm. In most cases, committing a prohibited harmful behavior 'recklessly' is quite sufficient for a criminal conviction. ('Negligent' behavior isn't generally criminal, but can easily be tortious.)

Translating this intuition where crime is concerned back to the more general political arena, the assertion being made is that once a certain level of evidence is available that a particular policy set is net-harmful, continuing to pursue that policy set may be viewed as 'reckless,' and therefore justifiably equivalent to 'intentional.'

In this particular case, I'm convinced that WPATH's behavior is reckless at a minimum. It may be intentional, in some cases, but I think the distinction is splitting hairs at best; recklessness is enough to make it fully condemnable.

It really does seem to have been a thing during that period. I'm inclined to agree with @FiveHourMarathon in disliking the choice on aesthetic grounds.

Best beatdown of Thanos since Squirrel Girl.

((FHM note: never trust anyone who uses a first initialism and his middle name, too melodramatic for my taste))

There were two other figures of great significance here who used the same name pattern--J. Edgar Hoover and W. Mark Felt (and to a lesser degree, L. Patrick Gray).

Hoover was famously the Director of the FBI for decades, spanning multiple presidential administrations. It's pretty common knowledge that he did an epic amount of empire-building over his career, and that the major players in Washington feared to cross him. He died in office during Nixon's tenure as President.

At the time of Hoover's death, Felt was the Deputy Associate Director of the FBI, assisting the elderly and infirm long-time Deputy Director Clyde Tolson. Nixon appointed L. Patrick Gray as Acting Director, later appointing him as full Director, and finally naming William Ruckelshaus Acting Director following Gray's resignation, despite Gray's recommendation of Felt for the role. Felt resigned from the FBI after a month or two of conflict with Ruckelshaus.

Felt was bitterly resentful at being repeatedly passed over for the Directorship, but in my view, a point often missed is that the role he really wanted was 'heir to Hoover's legacy,' a vastly more influential position than simply 'Director.' Both Gray and Ruckelshaus were appointed as Director from outside the FBI--intentionally, as Nixon wanted to break Hoover's legacy, not permit the rise of a second Hoover.

Nixon was suspicious of Felt, and was informed of the rumors that Felt had been leaking to the press, though Felt adamantly denied any such thing. It wasn't until 2005 that Felt finally 'confessed' that the rumors were true, and that he had been...Deep Throat.

I'd like to pay this post a meta-compliment in its wise approach to giving advice in general.

As with a number of topics, Scott's already written the essay, but it's well worth remembering that advice is usually directional, and as such only beneficially applies to people who would improve by moving in the direction the advice suggests. "Be more cautious" is good advice for a reckless person, but bad advice for a compulsive neurotic. Also, per Scott's essay, "be more cautious" is advice that the neurotic person might take more to heart than the reckless person, serving neither well.

This post takes the next step and provides a thought-out rubric for identifying which side of the dichotomy a given reader falls upon, and therefore how to evaluate the choice presented on a case-by-case basis. Other than providing bespoke advice to someone you know well, I can't think of a better approach. Well done!

I was about to respond, "some people like to read a lot," and then I remembered I was on The Motte. Surely this isn't news to anyone here!

Are you not familiar with web serial novels? The Wandering Inn may well hit 17 million words sometime next year.

Sure, but that's not the point. I was talking about effects, not intent.

If a college girl says, "I have a boyfriend," she may intend that to mean, "I am not interested," or "I am interested."

In the first case, the statement may be true (she's being honest and straightforward) or false (she's saying buzz off, per @Skulldrinker's dude-repellant comment below).

In the second case, she's flirting, which is the context that @roystgnr was addressing above. This is an example of saying "no" when you mean "yes, please," and I agree, this may well be a filter intended to exclude guys who can't parse the conflicting social cues.

All of that said, what she is actually accomplishing is filtering in favor of guys who are willing to read "I have a boyfriend" as "please continue to flirt, this could go somewhere." This strategy is remarkably unlikely to attract a guy with integrity who wants to develop a relationship, especially when the one thing that traditional and progressive advice to guys agrees on is "no means no."

No kidding. I'm guessing girls who say that with the intent of flirtation may not realize that they are filtering out guys with ethics in favor of guys who have no issue with enabling a cheater. Bonus points if they later complain about all the guys who hit on them being jerks who aren't into commitment.

Ah, then I had the pants reversed. The distinction was the same, regardless, and the point stands that it was not Rittenhouse at the gas station.

The reason the prosecution point to this is because at an earlier confrontation what set Rosenbaum off (where he yells "shoot me nigga") is he claims someone pointed their gun at him where Rittenhouse was there with another man.

As a point of interest, this did not happen as described.

The earlier confrontation where Rosenbaum engages in unhinged screaming was at the gas station. There's a man in a green shirt with an AR on a sling on the opposite side of the argument from Rosenbaum, but despite several visual points of similarity, that wasn't Rittenhouse. You can see this most clearly by looking below the waist--from what I recall, Rittenhouse was wearing khaki cargo shorts, and the man at the gas station was wearing long black (or at least dark) pants. There are a couple of other minor visual distinctions--I want to say the guy at the gas station was several inches taller than Rittenhouse--but the pants difference is the easiest to verify.

As @KMC notes, Rittenhouse was not a DTR/SYG case, and as I describe below, neither was Zimmerman (with the exception of one annoying detail, which I explore).

It is almost true that SYG has nothing to do with the Zimmerman case, and I find the thin bit of exception annoying, because it doesn't engage the philosophical point at all.

In Zimmerman's case, his actions were fully covered by either a generic SYG regime or a DTR regime. The philosophical difference does not apply to that case in the slightest--when he shot Martin, he had no ability to retreat, and it was Martin that forced the encounter, not Zimmerman. All of that is very clear-cut in the evidence presented at trial; if Florida had been a full-bore generic DTR state, Zimmerman would have been equally justified under the facts of the case.

The problem is that the word "generic" in the last paragraph is doing a bit of lifting. Florida's specific SYG law did apply to the case, but on a completely secondary point--the text of the law prohibited the arrest of someone claiming self-defense unless the officers had probable cause to believe that the self-defense argument was a lie. Zimmerman's arrest violated the SYG law because the police never had probable cause to believe he was lying; the evidence collected immediately at the scene and the following day (with Zimmerman's active cooperation) uniformly supported his description of events, as did every bit of subsequently developed direct or eye/earwitness testimony.

"Categorically believing, or disbelieving" is a false choice that does not describe the law accurately--the law set up a presumption in favor of the self-defense claimant in protecting him from arrest, but that presumption could be defeated by sufficient evidence to establish probable cause.

For what it's worth, the writers of Yes, Minister had at least two regular sources of information that were highly placed within the actual government--one Tory and one Labour, as I recall. A number of the minor side plots, usually the more insane ones, were references to actual events.

In one episode, the major characters went on a trip to the fictional nation of 'Qumran', and were aghast that their Islamic hosts would not be serving alcohol at the party. So they devised a strategem where alcohol would be stored nearby in a 'secure transmission room' and each member of the diplomatic team would take it in turns to 'confer with London' and refresh his drink. This actually happened, though the Islamic nation in question was not Arab, as depicted in the show.

No country is obligated to join any given treaty; this includes the US. As I explained, the US is not a party to the Rome Statute. When the ICC tries to extend its authority to non-parties, it is the one in violation of an "international rules-based order," not the US, and the US is fully within its rights to defend the current state of international law against the ICC's overreach.

That seems like a perfectly sensible statement to me. The ICC is looking to extend its reach beyond its remit, and is getting slapped down by the US (again). Nothing is new here.

The ICC (International Criminal Court) is a treaty-based organization created by the Rome Statute. The ratifying powers have agreed to submit to the authority of the Court in certain cases, specified by the Statute. Neither the US nor Israel are parties to the Rome Statute, which means that the ICC has no authority over their governments or citizens. The ICC is attempting (again) to go after non-parties, in order to create the precedent that it has powers beyond the text of its treaty--in essence, it's trying to create customary international law using Israel as a point of leverage. The real target is American officials in the future, so current American officials are quite interested in shutting down the ICC's overreach at the outset, as they have many times in the past.

(If you follow the wiki-link to the Rome Statute, you'll see a color-coded map that is less helpful than it appears. Only a state that has ratified a treaty, and not withdrawn that ratification, is a full party to a treaty. A "signatory" is not a party. In the US context, the American President may sign any treaty he likes, but the US is not bound to treat the treaty as law unless and until the Senate ratifies the treaty by a 2/3 vote--one of the very few supermajority votes required by the Constitution itself. Many other countries have similar mechanisms.)

Indeed, I don't doubt that your general understanding of the situation was on point; I just wanted to clarify that the rules you were following were immediately based in the UCMJ and the relevant ROEs for your situation, not the international treaties and conventions concerning actions in war.

I think this is an important distinction because I've found that many people think the Convention-based laws of war are vastly more restrictive than they actually are, and this sometimes undermines the persuasive authority of those agreements. In actual fact, they are much more modest and practical documents that drew a great deal from the brutal lessons taught in the World Wars.

Relatedly, I think a lot of people don't understand just how much more constraining the UCMJ and many ROEs are compared to the international Conventions, in terms of permissible actions by members of the US armed forces. US military discipline is due nearly entirely to internal controls, and those controls could be relaxed a great deal before running afoul of those international agreements. I'd prefer it if we didn't need to explore that space, but it is available.

I should probably clarify my argument; what you're offering here is policy reasons against the summary execution of pirates--which is fair enough, but not completely on point to my objection.

@ares claimed that summarily executing the pirates would have been 1) morally wrong, and 2) not in keeping with the rules of war. These are two distinct claims.

In response to 1), I am pointing out that summary execution of pirates was historically a universal practice. That doesn't make it right--slavery was also universally practiced, and also wrong--but you need to show your work in dismissing it. Your own arguments about incentives would be relevant to a consequentialist moral analysis, but not to other systems. Even in a consequentialist frame, @ares makes several good points about the thorny issues of how to handle pirates otherwise.

In response to 2), the laws of war, expressed in documents like the Geneva or Hague Conventions, don't apply. Pirates are by tradition "outlaw," and may be exterminated wherever found, in time of peace or war alike. They are by definition non-state actors, as distinct from privateers, who have an official state patron (generally via a letter of marque and reprisal) but are not a part of that state's uniformed military.

Executing pirates may well be contrary to US military policy, expressed through the UCMJ and various theater rules of engagement, but those judgments should not be confused with unsupported moral claims or general appeals to "the rules of war."

Would have been a lot cheaper and easier to have just shot them all there and sunk their skiff, with the same outcome. But that's morally wrong, and not in keeping with the rules of war.

Wait, what? Summary execution is what you do to pirates; that's been universally true for centuries!

I'm not saying that the piracy example necessarily extends to other crimes (usually no), but piracy is the worst example possible for this case, because of the very very long history of it being first on the list of scenarios justifying summary execution.