All posts filed under: Law

Police Violence and the Rush to Judgment

In the days and weeks following George Floyd’s death in May, activists flooded the streets with placards and slogans to denounce racism and police violence. But the zeal with which they mobilized support for their cause frequently clouded complex issues and events that demanded greater scrutiny than conviction and piety provide. For partisans on social media, hearsay and rumor became grist to ideological mills and facts were only relevant if they were politically useful. An inquisitorial climate developed in which everyone was expected to take a side without unseemly hesitation. Are you on the side of social justice or are you on the side of racial oppression? Silence on this question is violence, we were told. As a result, a rush to judgment is disfiguring how we consume and understand reports of events unfolding rapidly in confusing circumstances. The political biases of the loudest voices may be obvious and their manipulations may be crude, but doubt and restraint risk accusations of callousness and racism, which is often motivation enough to declare one’s allegiance before the …

Getting Rid of Bar Exams Won’t Help Anyone

For years, affirmative-action proponents have urged colleges and universities to reduce (or eliminate) their reliance on standardized tests as a basis for admission. The COVID-19 pandemic has opened up a window of opportunity for these activists, as many high-school students have been unable to sit for tests. And so a growing list of schools are waiving SAT and ACT requirements for their applicants. What is less known is that the same trend is gaining traction in the professional sphere. Last month, Darleen Ortega, a judge on the Oregon Court of Appeals, cast doubt on the value of state bar exams, arguing that the bar-passage requirement “does not function to protect the public by assuring a minimum level of competence to practice law… I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.” Similar arguments have appeared in the Washington Post and trade publications. Under the headline COVID Should Prompt Us To Get Rid Of New York’s Bar …

Arguing in America

Jacob Siegel’s recent essay for Tablet entitled “The New Truth” manages to capture something important about the current state of discourse in America. Essentially, the marketplace of ideas is beholden to a despotic elite, and is being used to proselytize a new moral order. This moral order is perpetually in flux and is subject to ongoing revisions from its adherents. The only constant is that current systems of morality have failed and are, in fact, perpetuating immorality. The important question of how we got here has yet to receive a satisfactory answer. Yes, clear and early warning signs about the growth of this new culture on campuses were missed or dismissed. Yes, the hard sciences are becoming increasingly politicized and pressured to accept that “other ways of knowing” are at least as valuable as the scientific method. But none of the existing answers properly explains how the national discourse has surrendered to the ascendant dogma of what Seigel’s Tablet colleague Wesley Yang has called the successor ideology. The successor ideology is what happens when ideas …

Pell’s Pyrrhic Victory

In an essay published on this site nearly two months ago, I analysed George Pell’s conviction for child sex offences alleged to have occurred in Melbourne, Australia, in December 1996 and February 1997. On Tuesday, Australia’s highest court unanimously ruled—along substantially the same lines as those explored in my argument—that Pell was wrongfully convicted. A short time later the 78-year-old was released from the maximum security prison in which he had been serving his sentence in solitary confinement. The question for the High Court was the same as that presented to the Victorian Court of Appeal which rejected Pell’s first appeal: was it open to the jury, acting reasonably, to convict the accused based on the available evidence? Rarely for a case heard in the nation’s highest court, the judges were concerned principally with factual rather than legal matters. The court reviewed the evidence and concluded that a rational jury could not have convicted Pell on this basis, and that the Victorian Court of Appeal erred in failing to find this. The accusations, briefly stated, …

Fabricated Innocence: The Self-Exoneration and Re-Incrimination of Jens Soering

One of the narrative paradigms in Kurt Vonnegut’s typology of stories is called “Man in a Hole”: Someone starts out doing pretty well at the beginning of a story, then plunges into a deep hole of misfortune, then scrambles out of it again. Jens Soering is that man in the hole. Soering’s promising life went off the rails at the age of 18, when the young German student at the University of Virginia began a love affair which culminated in the brutal double murder of Derek and Nancy Haysom, the parents of his girlfriend Elizabeth. That was act one. Act two involved an international flight from the law, hours of confessions, and a judicial decision which has shaped human rights law to this day. Act three begins with Soering’s conviction and sentencing to life in prison at a televised 1990 murder trial. The pace of the drama then slows for act four: Working from his prison cell, Soering patiently constructs, over decades, an alternate history of the love affair and murders, and convinces a dedicated …

An Alternative Feminist Perspective on Abortion

Having studied law and worked on the U.S. east coast for three years, I was well prepared for the long-delayed debate about abortion in my native country, Argentina, when it began in March 2018. However, it did not unfold as I expected. Abortion is a crime under Argentine law, except in cases of rape or life/health threatening pregnancies (See Section 86 of the Argentine Criminal Code). Nevertheless, in practice, there are significant differences in how abortion is treated across the country—in some jurisdictions, a woman may find it hard to undergo an abortion in those circumstances exempted by the Criminal Code, while in others, any woman asking for help with an unwanted pregnancy at a public hospital will be advised to declare that it was the result of non-consensual sex or to submit a doctor’s certificate stating that it threatens her mental or “social” health, thereby making her eligible for a free abortion provided by the state. In Argentina, the debate about abortion divides the population, so I expected the discussion to address its philosophical …

Convictions and Doubts: The Case of Cardinal Pell

On 9 January 2020, officials at the Melbourne Assessment Prison intercepted a drone flying over the prison grounds. Remotely piloted aircraft are banned within 120 metres of a correctional facility in the Australian state of Victoria to avoid the smuggling of contraband and other security breaches. This drone was not fitted with drugs or weapons or mobile phones but a camera its operator hoped would capture the prison’s highest profile inmate. That inmate was Cardinal George Pell, the most senior member of the Catholic Church ever convicted of child sex offences. Pell was moved to Barwon prison after the drone incident. Barwon houses Victoria’s most dangerous offenders, including serial killers Gregory Brazel and Paul (now Paula) Denyer, terrorist Abdul Nacer Benbrika and Barbaro ‘Ndrangheta crime clan leader Pasquale Barbaro. It was Barwon where the leader of a prison gang beat well-known Melbourne crime figure Carl Williams to death with a metal rod extracted from an exercise bike in 2011. From Ballarat to Barwon via Oxford and Rome Barwon is a mere one hour drive from …

Denial and Defamation: The ITN-LM Libel Trial Revisited (II)

PART TWO: THE TRIAL VI. The Standards of Western Journalism The trial eventually began at the High Courts of Justice in London on 28 February 2000. The defendants—recorded as Michael Hume, InformInc (LM) Ltd., and Helene Guldberg—arrived at court on the heels of a disappointing pre-trial hearing. The presiding judge, Mr. Justice Morland, had ruled the testimony of a number of key defence witnesses, including the BBC’s John Simpson, inadmissible. He was not interested in rehearsing the debates about the journalism of attachment or press freedom that had convulsed the chatterati for three years. The claimants—recorded as Independent Television News Ltd., Penny Marshall, and Ian Williams—held that Deichmann’s article, Hume’s accompanying editorial, and the first LM press release were all false and defamatory. Under Britain’s controversial libel law, the defendants were required to show that their contested claims about ITN’s reporting were true. Morland simply wanted to establish if that was the case. The defence’s priority was to establish the location of the barbed wire fence at Trnopolje. This their lawyer Gavin Millar successfully accomplished …

Denial and Defamation: The ITN-LM Libel Trial Revisited (I)

PART ONE: THE CAMPS Intro: From Phnom Pehn to Srebrenica In 1977, Noam Chomsky and his co-author, the late Edward S. Herman, wrote an essay for the Nation entitled “Distortions at Fourth Hand,” in which they scorned reports that the Khmer Rouge were turning Cambodia into a charnel house. Stories of genocide, they suggested, were either exaggerated or fabricated outright by refugees, and any deaths—regrettable though they may be—were most likely the result of disease, starvation, and confusion caused by America’s devastating involvement in the foregoing civil war. The two books that bore the brunt of Herman and Chomsky’s disdain were John Barron and Anthony Paul’s Murder of a Gentle Land and François Ponchaud’s Cambodia Year Zero. Contemporaneous accounts from and about war zones are rarely correct in every particular. But Chomsky and Herman ignored everything Ponchaud and Barron-Paul got right, and seized upon isolated errors and inconsistencies to discredit their work in its entirety. Gareth Porter and George C. Hildebrand’s book Cambodia: Starvation and Revolution, on the other hand, they praised as “a carefully …

I Asked Thousands of Biologists When Life Begins. The Answer Wasn’t Popular

Shortly after being awarded my Ph.D. by the University of Chicago’s department of Comparative Human Development this year, I found myself in a minor media whirlwind. I was interviewed by The Daily Wire, The College Fix, and Breitbart. I appeared on national television and on a widely syndicated radio program. All of this interest had been prompted by a working paper associated with my dissertation, which was entitled Balancing Abortion Rights and Fetal Rights: A Mixed Methods Mediation of the U.S. Abortion Debate. As discussed in more detail below, I reported that both a majority of pro-choice Americans (53%) and a majority of pro-life Americans (54%) would support a comprehensive policy compromise that provides entitlements to pregnant women, improves the adoption process for parents, permits abortion in extreme circumstances, and restricts elective abortion after the first trimester. However, members of the media were mostly interested in my finding that 96% of the 5,577 biologists who responded to me affirmed the view that a human life begins at fertilization. It was the reporting of this view—that …