Quotulatiousness

November 19, 2012

Rethinking US immigration policies

Filed under: Americas, USA — Tags: , , , — Nicholas @ 10:21

Steve Chapman on the need of both the Democrats and the Republicans to come up with more realistic approaches to solving the illegal immigration problem:

Both sides also agree that a balanced, two-part approach is in order: stricter enforcement and improved border security on one hand and a pathway to legalization on the other. It’s an excellent plan — except for that first part.

To say we need more enforcement to seal the border is like saying we should re-invade Iraq. In the first place, we’ve already ramped up enforcement in every way imaginable. In the second place, it hasn’t solved the problem — and in fact has largely backfired.

[. . .]

G.K. Chesterton wrote that “Christianity has not been tried and found wanting; it has been found difficult and not tried.” Enforcement enthusiasts think the same is true of their preferred option. From them, you would think every migrant sneaking across the Arizona border only had to get by an unarmed attendant sitting in a folding chair and playing Angry Birds on an iPhone.

In fact, the southern border increasingly resembles the Berlin Wall. Border security has become the poster child of big government programs that conservatives typically abhor. It never succeeds, and every failure becomes the rationale for additional funding.

November 7, 2012

Scotland: sing an offensive song, go to prison

Filed under: Britain, Law, Liberty, Soccer — Tags: , , , — Nicholas @ 09:57

Kevin Rooney looks at the sad state of free speech (or should that be free singing?) in Scotland:

Imagine the scene: a young man is led away in handcuffs to begin a prison sentence as his mother is left crying in the courtroom. He is 19 years old, has a good job, has no previous convictions, and has never been in trouble before. These facts cut no ice with the judge, however, as the crime is judged so heinous that only a custodial sentence is deemed appropriate. The young man in question was found guilty of singing a song that mocked and ridiculed a religious leader and his followers.

So where might this shocking story originate? Was it Iran? Saudi Arabia? Afghanistan? Perhaps it was Russia, a variation of the Pussy Riot saga, without the worldwide publicity? No, the country in question is Scotland and the young man is a Rangers fan. He joined in with hundreds of his fellow football fans in singing ‘offensive songs’ which referred to the pope and the Vatican and called Celtic fans ‘Fenian bastards’.

Such songs are part and parcel of the time-honoured tradition of Rangers supporters. And I have yet to meet a Celtic fan who has been caused any harm or suffering by such colourful lyrics. Yet in sentencing Connor McGhie to three months in a young offenders’ institution, the judge stated that ‘the extent of the hatred [McGhie] showed took my breath away’. He went on: ‘Anybody who participates in this disgusting language must be stopped.’

Several things strike me about this court case. For a start, if Rangers fans singing rude songs about their arch rivals Celtic shocks this judge to the core, I can only assume he does not get out very much or knows little of life in Scotland. Not that his ignorance of football culture is a surprise — the chattering classes have always viewed football-related banter with contempt. But what is new about the current climate is that in Scotland, the middle-class distaste for the behaviour of football fans has become enshrined in law.

October 10, 2012

Defending the rights of the accused (even when the accused are “clearly guilty”)

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:41

Ken White doesn’t like the way the criminal justice system is criticized on the basis of “feelings”, rather than the facts. In a recent case that the media has reported on as a travesty of justice, he defends the process by which the decision was reached.

Blogger “Gideon” writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can’t afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length […], prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” What the Court found was that this victim — who, though severely handicapped, could move and resist — was not “physically helpless” within the meaning of the statute, which is narrowly confined to people who are “unconscious or for some other reason physically unable to communicate lack of consent.” The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn’t “physically helpless” under the statute. The Court also repeatedly criticized the prosecutor’s decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was “unable to consent to such sexual intercourse”), and failure to offer evidence of state’s latecoming theories under this statute.

I’m outraged that the prosecution made a lousy and seemingly inexplicable call. I’m outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I’m not outraged that the state has to prove that you’re guilty of the specific crime you’re charged with to put you in prison. That’s fundamental to due process. “Well, hell, he didn’t do what he’s charged with, but he did something else awful” is tyrannical. I’m more afraid of the state’s ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right “to be informed of the nature and cause of the accusation” against you. “You’re a criminal, we’ll figure out what statute you violated after we see how the evidence turns out at trial” is not due process.

October 5, 2012

Apparently only Christians go to prison in Canada

Filed under: Cancon, Law, Religion — Tags: , , — Nicholas @ 10:29

At least, that’s the most charitable interpretation of this move by the federal government:

The federal government is cancelling the contracts of non-Christian chaplains at federal prisons, CBC News has learned.

Inmates of other faiths, such as Muslims, Sikhs, Buddhists and Jews, will be expected to turn to Christian prison chaplains for religious counsel and guidance, according to the office of Public Safety Minister Vic Toews, who is also responsible for Canada’s penitentiaries.

Toews made headlines in September when he ordered the cancellation of a tender issued for a Wiccan priest for federal prisons in B.C.

Toews said he wasn’t convinced part-time chaplains from other religions were an appropriate use of taxpayer money and that he would review the policy.

In an email to CBC News, Toews’ office says that as a result of the review, the part-time non-Christian chaplains will be let go and the remaining full-time chaplains in prisons will now provide interfaith services and counselling to all inmates.

According to the report, 57% of inmates are Christian. I smell a charter challenge to this ruling.

September 30, 2012

If you’re not getting enough convictions on drug charges, tamper with the evidence at the lab

Filed under: Law, Liberty, USA — Tags: , , , , , — Nicholas @ 10:56

The war on drugs is already insane enough, with civil liberties being curtailed in pursuit of drug dealers and even drug users. The number of US citizens in prison for drug charges helps make the US one of the most-imprisoned societies in the world. But even with all that, things can still get worse, as this story from the Huffington Post shows:

“Annie Dookhan’s alleged actions corrupted the integrity of the entire criminal justice system,” state Attorney General Martha Coakley said during a news conference after Dookhan’s arrest. “There are many victims as a result of this.”

Dookhan faces more than 20 years in prison on charges of obstruction of justice and falsely pretending to hold a degree from a college or university. She testified under oath that she holds a master’s degree in chemistry from the University of Massachusetts, but school officials say they have no record of her receiving an advanced degree or taking graduate courses there.

State police say Dookhan tested more than 60,000 drug samples involving 34,000 defendants during her nine years at the Hinton State Laboratory Institute in Boston. Defense lawyers and prosecutors are scrambling to figure out how to deal with the fallout.

[. . .]

Verner said Dookhan later acknowledged to state police that she sometimes would take 15 to 25 samples and instead of testing them all, she would test only five of them, then list them all as positive. She said that sometimes, if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine, Verner said.

September 17, 2012

The chilling of free speech: corporate defamation suits

Filed under: Australia, Business, Cancon, Law — Tags: , , , — Nicholas @ 13:07

An interesting article in the Toronto Star looks at the idea of reducing the ability of corporations to launch SLAPP lawsuits against private citizens:

Fed up with suits like this (sometimes called Strategic Lawsuits Against Public Participation, or SLAPPs), Australia changed its laws to prevent most corporations from being able to sue for defamation. Canada’s provinces should do the same.

Canada is no stranger to SLAPPs. For example, when Mark Prince created a website inviting people to describe their customer service experiences with Future Shop, he was threatened with a defamation suit. On the advice of a lawyer, Prince shut the site down. It wasn’t that what he’d done was necessarily defamation, but it would simply have cost too much to defend himself.

Cases like this highlight the fact that defamation is easy to allege and hard to defend. Those who claim to have been defamed need only prove that the defendant published something about them to at least one other person, and that a reasonable person would think less of them as a result. Plaintiffs do not have to prove they suffered any actual loss to their reputation, or that the statement was false. Instead much of the burden falls to defendants to prove a defence, such as that the statement was true.

As a result, most people will retract or apologize, even if a statement is true, rather than spend a small fortune defending their right to say it. This chilling effect doesn’t only affect individuals; the news media’s publishing decisions are also influenced by defamation law.

H/T to Bob Tarantino for the link:

September 13, 2012

Falkvinge: Child porn laws are insane

Filed under: Law, Media, USA — Tags: , , , , , , — Nicholas @ 08:13

People are generally sensible, but even sensible people can demand bad laws get passed by their governments. Child porn laws in the United States are an example of not merely bad laws, but insane laws. Rick Falkvinge follows up an earlier article:

A common protest to my article was that prosecution of people who record evidence of child abuse, or of teenagers doing things voluntarily, “would absolutely never happen”. The arguments went along these lines:

    It would be absolutely insane for the law to say this, and since the law can’t possibly be that insane, you must be wrong. Therefore, you’re an evil person for writing this opinion.

The problem is that I agree with these people: it would be absolutely insane for the law to say the examples I gave, and that the law says exactly that, so the law is indeed that insane. I understand the disbelief, so I’ll be returning to that shortly and list how it has already happened. But first, let’s take a look at what happens when you document evidence of a couple of types of very serious crimes:

  • If you film a police abuse situation to get evidence and show it to the world so the power abusers can get caught, you’re a hero to the level that your film can cause riots.
  • If you document a genocide in enough detail that your evidence can bring perpetrators to justice, you’re a worldwide hero.
  • If you film wartime killings, people will risk their lives — and sometimes die — to bring your evidence and documentation to news studios.
  • If you risk being beaten up by covertly filming a street battery and assault, you’re welcomed with open arms by the police when you hand over the evidence you produced. (I personally did this, for the record.)
  • If you film something as serious as a presidential assassination, people will watch the film over and over and over again and your name will go down in history for centuries.
  • If you film a rapist of a minor to get evidence in order to bring the sick, twisted bastard to justice, you’re the bad guy and will get a worse sentence than the rapist you attempt to bring to justice and jail.

[. . .]

As I described in my last post, these laws were constructed by Christian-fundamentalist pressure groups with the intent of criminalizing normal teenage behavior, and the side effect of protecting child molesters from prosecution, under the pretext of protecting children. I find that completely unacceptable. Outrageous, actually.

September 10, 2012

Extending the state’s say in private decision-making

Filed under: Britain, Law, Liberty — Tags: , , , , , — Nicholas @ 09:55

Barbara Hewson on recent legal developments in Britain which extend the state’s ability to interfere in the private lives of adults:

For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.

This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.

Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).

[. . .]

Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.

August 29, 2012

Brendan O’Neill on the rape debate

Filed under: Britain, Law, Politics — Tags: , , — Nicholas @ 09:09

Always willing to take a contrarian stand, Brendan O’Neill refutes the very common meme:

In the words of Salma Yaqoob of Galloway’s Respect party, “rape occurs when a woman has not consented to sex”. Or in the widely reported phrasing of a spokesperson for Rape Crisis, “Sex without consent is rape”.

This sounds correct. It seems simple yet right to assert that if a woman has not consented to sex, then rape has occurred.

But it is wrong. More than that, the idea that all “non-consensual sex is rape”, as Galloway himself has now said in his clarification of his defence of Assange, represents a dangerous rewriting of what rape really means.

Feminists always focus on the state of mind of the woman or women involved in an alleged rape and disregard the state of mind of the man.

This is a terrible error, because in order for rape to have occurred, it is not enough to prove that the woman did not consent; we must also surely prove that the man knows she did not consent, or was utterly reckless as to the question of her consent, and carried on regardless.

That is, rape must involve an intention on the part of the man to commit rape. The man must have a guilty mind — or what is referred to in law as mens rea — in the sense that he knows he is committing rape. In leaving out this key component of rape, feminists are not only undermining the meaning and gravity of this crime — they are also displaying a cavalier disregard for some of the key democratic principles of the modern legal system.

July 27, 2012

Twitter joke trial comes to the correct result, eventually

Filed under: Britain, Law, Liberty, Technology — Tags: , , , — Nicholas @ 10:53

Kelly Fiveash at The Register on the Twitter “bomb threat” case:

A bloke found guilty of tweeting a “menacing” joke about blowing up a UK airport has had his conviction quashed by the High Court today. A collective sigh of relief was heard moments later from comedians addicted to the micro-blogging website.

Paul Chambers, 28, was waiting to fly from Doncaster’s Robin Hood airport to Belfast to see his girlfriend, whom he met on the social networking site, when snow closed the airfield and delayed his flight.

He vented his frustration in a series of tweets to his squeeze Sarah Tonner, now his fiancee, including a suggestion that he had considered “resorting to terrorism” to ensure he could visit her.

[. . .]

Mr Justice Owen and Mr Justice Griffith Williams said in the High Court today that the facts needed to be considered in context, pointing out that the tweets had clearly appeared to be a reference to the airport closing due to adverse weather conditions.

“There was no evidence before the Crown Court to suggest that any of the followers of the appellant’s ‘tweet’, or indeed anyone else who may have seen the ‘tweet’ posted on the appellant’s time line, found it to be of a menacing character or, at a time when the threat of terrorism is real, even minimally alarming,” the High Court heard.

June 29, 2012

Shikha Dalmia attempts to pull some lessons from the confusion of the Supreme Court’s Obamacare ruling

Filed under: Health, Law, USA — Tags: , , , , — Nicholas @ 10:51

The biggest loser in this ruling may well have been the remains of the Supreme Court’s dignity. At Hit and Run, Shikha Dalmia pokes through the smoking ruins of the decision to try to make some sense out of it all:

One: We know a ruling is a going to lead to a holy legal mess when it begins like this:

    ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy — a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out

[. . .]

Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam’s Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare’s constitutionality — or lack thereof — under the Commerce Clause would not have even been an issue.

But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the “penalty” a “tax” in declaring it constitutional.

Update: Ace gets a bit heated about the political switch of opinion on the part of the chief justice:

What galls me is that a majority of the public wanted this overturned — but we don’t count. What counts is the opinion of the elites Roberts socializes with. They are a decided minority, but continue imposing their political will on the nation as if they were a majority.

And the actual majority? The Little People don’t count. They don’t have the right schooling, nor the socialization to truly understand how to best manage their affairs.

I was just reading a bit about the making of The Good, the Bad, and The Ugly. Sergio Leone included a brutal Union prison camp; he noted that there was a lot written about the Confederates’ brutal prison camps (like Andersonville) but nothing about the Unions’ similar camps. The winners, he noted, don’t get written about that way.

Roberts has aligned himself with the elites, who he supposes will be the Winners, and will thus have the final say in the history books about him. And he’s probably right that they will have the final say: Conservatives simply do not have much sway at all in some of the most critical institutions in America. And we’ll continue paying a high price for that until we change that.

Update, the second: Mark Steyn, on the other hand, sings the praises of Obamacare, now that it has hurdled the Supreme Court:

Still, quibbling over whose pretzel argument is more ingeniously twisted — the government’s or the court’s — is to debate, in Samuel Johnson’s words, the precedence between a louse and a flea. I have great respect for George Will, but his assertion that the Supreme Court decision is a “huge victory” that will “help revive a venerable tradition” of “viewing congressional actions with a skeptical constitutional squint” and lead to a “sharpening” of “many Americans’ constitutional consciousness” is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. Back in the real world, it is a melancholy fact that tens of millions of Americans are far more European in their view of government than the nation’s self-mythologizing would suggest. Indeed, citizens of many Continental countries now have more — what’s the word? — liberty in matters of health care than Americans. That’s to say, they have genuinely universal government systems alongside genuinely private-system alternatives. Only in America does “health” “care” “reform” begin with the hiring of 16,500 new IRS agents tasked with determining whether your insurance policy merits a fine. It is the perverse genius of Obamacare that it will kill off what’s left of a truly private health sector without leading to a truly universal system. However, it will be catastrophically unaffordable, hideously bureaucratic, and ever more coercive. So what’s not to like?

June 23, 2012

The Turing inquest verdict of suicide may not have been consistent with the evidence

Filed under: Britain, History, Law — Tags: , , — Nicholas @ 08:46

Brilliant mathematician Alan Turing died in an apparent suicide after undergoing chemical castration, but the inquest seems to have rushed to a conclusion:

At a conference in Oxford on Saturday, Turing expert Prof Jack Copeland will question the evidence that was presented at the 1954 inquest.

He believes the evidence would not today be accepted as sufficient to establish a suicide verdict.

Indeed, he argues, Turing’s death may equally probably have been an accident.

[. . .]

The motive for suicide is easy to imagine. In 1952, after he had reported a petty burglary, Turing found himself being investigated for “acts of gross indecency” after he revealed he had had a male lover in his house.

Faced with the prospect of imprisonment, and perhaps with it the loss of the mathematics post he held at Manchester University, which gave him access to one of the world’s only computers, Turing accepted the alternative of “chemical castration” — hormone treatment that was supposed to suppress his sexual urges.

It is often repeated that the chemicals caused him to grow breasts, though Turing is only known to have mentioned this once.

[. . .]

In his authoritative biography, Andrew Hodges suggests that the experiment was a ruse to disguise suicide, a scenario Turing had apparently mentioned to a friend in the past.

But Jack Copeland argues the evidence should be taken at face value — that an accidental death is certainly consistent with all the currently known circumstances.

The problem, he complains, is that the investigation was conducted so poorly that even murder cannot be ruled out. An “open verdict”, recognising this degree of ignorance, would be his preferred position.

None of this excuses the treatment of Turing during his final years, says Prof Copeland.

May 23, 2012

Chris Selley on the disproportional sentences handed out by the “court of public opinion”

Filed under: Law, Media, Technology — Tags: , , , , — Nicholas @ 09:59

People can be idiots. Some of them are idiots all the time. Others are only idiots every now and again. When the idiotic events happen to co-incide with fluctuating public opinion, the sentence for public idiocy can often vastly exceed the impact of the original idiotic action:

It has been a tough week for notorious, misbehaving young people — well, outside of Quebec anyway. On Monday in a New Jersey courtroom, Dharun Ravi was sentenced to 30 days in jail for having briefly spied, twice, via webcam, on his Rutgers University roommate’s romantic encounters. He was 18 at the time. And on Tuesday, Swansea University, in South Wales, made it clear that 21-year-old Liam Stacey is forever unwelcome on its campus, where he was nearly done studying biology. Mr. Stacey just served half of a 56-day jail sentence for publishing some flamboyantly racist tweets. “Go suck a ni–er d-ck you f–king aids ridden c–t,” one read.

Both individuals are unredeemed pariahs. Yet on either side of the Atlantic, and across the political spectrum, their cases have sparked an interesting debate over whether criminal justice was the proper means through which to express polite society’s revulsion at their actions. I think it was not, for the simple reason that the charges bore little relationship to the true nature of the outrage.

[. . .]

The context of Mr. Stacey’s crimes is less tragic. On March 17, before a television audience of millions, Premier League soccer player Fabrice Muamba collapsed of a heart attack. (He has since made a remarkable recovery.) In response, an admittedly soused Mr. Stacey Tweeted the following: “LOL. F–k Muamba he’s dead!!! #Haha.” That astoundingly insensitive missive was what elicited society’s outrage; it is still quoted at least 100 times in the media for every mention of the torrent of racist abuse that followed, when fellow tweeters complained.

Twitter is not, generally speaking, a racism-free zone; earlier in this year’s NHL playoffs, it hosted some jaw-dropping invective against Washington Capitals forward Joel Ward. And British white trash can match or exceed anything their North American counterparts are capable of. So here it is even clearer: Mr. Stacey’s problem wasn’t “inciting racial hatred,” the charge of which he was convicted, but doing it at the wrong time and getting noticed.

In the end, while two months was a remarkably harsh sentence for mere words, it’s hard to feel sorry for Mr. Stacey. One can argue for unfettered free speech, and equal application of the law, without defending this particular oik.

May 20, 2012

Self-serving demands for “more diversity” in judges

Filed under: Cancon, Law — Tags: , , , — Nicholas @ 10:26

Karen Selick demolishes the case for mandatory diversity in appointing judges:

Even if the composition of the bench mirrored precisely the general population, this would still not address the complaint voiced by one former judge — himself a Sikh — that minority members feel “less understood or valued” by judges who aren’t of their own minority group. If nobody can understand or value anybody else unless they are members of the same minority group, we would have to take the additional step of matching judges to the personal characteristics of defendants or litigants. Whites would have to be judged by whites, blacks by blacks, aboriginals by aboriginals, and so on. In short, we’d need complete apartheid in our judicial system — hardly a formula for societal harmony.

Besides, litigants don’t come packaged in neat compartments. What if a gay, black, francophone, atheist male sued a straight, white, disabled, anglophone, Catholic female? It would clearly be impossible to find a judge whose personal characteristics matched both litigants. Would we need to appoint a panel of eight to ensure that all bases were covered?

The idea that people are incapable of empathy, understanding or compassion toward others different from themselves is manifestly false. We cry at movies precisely because we are able to empathize with the characters onscreen, even though we ourselves have never experienced the same trials, tribulations or skin colour. If white Canadians were genuinely indifferent or hostile toward the plight of different peoples, Canada would never have adopted a clause in its Charter of Rights and Freedoms outlawing discrimination and promoting affirmative action; it would not have enacted anti-discrimination laws in every province; and The Globe and Mail would not be clamouring for more minority judges.

May 10, 2012

Megan McArdle on “eyewitness” accuracy, bullying, and the failures of human memory

Filed under: Law, Liberty, Politics, Science — Tags: , , , , , — Nicholas @ 11:34

In a fascinating series of Twitter updates, Megan McArdle discusses the inherent problems we encounter when we depend on eyewitness testimony, especially long after the event. This is a long series of separate entries starting with this one:

It’s heartwarming to see all these journalists and twitterers who never did anything morally wrong in high school.

I mean, most of the high school students I knew were pretty much selfish and immoral herd beasts. But maybe things were different elsewhere.

[Responding to a comment from @jbouie] No, just saying that it’s not really backed up. You and I both know what the quality of eyewitness evidence is when given . . . immediately, and by the time it’s 50 years old and delivered in re a presidential election . . . the Swift Boaters had more . . . eyewitnesses who corroborated that Kerry was “lying”. Wouldn’t exactly be surprised to find that those who remember . . . Romney as ringleader were maybe not planning to vote for Mitt Romney.

I don’t think they’re lying as much as motivated cognition plus memory from 50 years ago is not reliable. Dito swiftboaters.

I don’t even think that’s only explanation; just think I can’t reliably distinguish from “they’re remembering accurately”

Note: I actually watched lots of formerly bullied girls become bullies themselves in girls’ camp when social dynamic of cabin . . . shifted for some reason. In most cases difference between bullied and bullies was group support/encouragement, not . . . some fundamental difference in their character. I never saw a bullied girl turn down the opportunity to bully someone else.

[. . .]

[in response to @pjdoland] I am sure that many of my bullies have forgotten it. I don’t think they’re sociopaths. I think they’re humans who grew up.

All the research on memory shows that it’s incredibly unreliable, and very easy to create factitious memories . . . that seem perfectly real. The odds that either Kerry or the Swift Boat vets accurately recalled what happened are zero.

And people who come out of the woodwork decades later with memories that impeach a presidential candidate are almost . . . certainly, either individually or as a group, altering those memories in ways that help the candidate they like.

. . . or they are embellishing memories. Seriously, this is a huge problem with eyewitness testimony, particularly in old trials.

If you tell people what happened, they will report it as if they recall it–they will in fact recall it.

A personal example: my mother was in hospital for an undiagnosed abdominal ailment that turned out to be appendicitis.

I spent the worst 13 hours of my life in the ER with her and would have sworn that it was seared—seared!–into my memory.

But as it happened, I kept a record of what was happening in RT, in case I wanted to write about it. (Fucking journalists, right?)

Three weeks later, I’d forgotten most of the stuff on the list. Some of it came back to me when I read it.

Some of it I still have absolutely no idea what I’m talking about. (I googled snoring? Why?) Memory is not what we think.

It’s a narrative that is constantly being recreated as we tell it, not a record.

The malleability of memory is something that none of us particularly want to face up to: we like to think of ourselves as reliable witnesses to our own lives, yet the evidence is that we are very much not. Some of us are a bit better at accurate recollection, while others consciously remember things as they should have happened instead of how they actually happened.

This, of course, should require us to move the entire “history” section over into the “fiction” part of the mental library…

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