I would take that as at best an argument that originalism could be applied in edge cases where a law is ambiguous and hasn't been applied or tested before -- but that's a rare situation, even among appellate courts where truthfully many situations could be decided based upon recent cases or controversies.
The difficulty of many recent legal controversies is not that they are legally difficult to resolve using typical jurisprudence but that the outcomes of the case are controversial. If that's what you mean about becoming a super-legislature, then the issue is probably with the nature of judicial review rather than how it's being done.
Legislative intent is frequently applied by scholars who subscribe to different legal philosophies but not necessarily tell the original intent of a law. Debates within a legislative body are probably better evidence than second hand sources, but on the other hand -- legislatures are typically made up of lots of individuals who don't speak with a unified voice, and there may be differing interpretations of the law.
You seem to be trying to make my argument into a strawman, and throwing around words like "principle" and "politics" as though they are magic incantations that shut down debate.
My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism.
How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?
Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism.
As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.
How exactly does making historical, analogical arguments the center of judicial reasoning make the court LESS of a super-legislature? If nothing else, it makes the court MORE likely to be politically active so long as they can find a few pseudo-scholarly articles that make an argument for them. And that's remarkably easy these days when there are lots of ways to get published but far fewer institutions with the resources and time to check the historical scholarship for accuracy.
"Originalism" and "textualism" are two different approaches to legal interpretation that can sometimes but not always overlap. Plenty of people who believe in a "living constitution" ground their reasoning in legal text.
The innovation of originalist legal thought is that they realized so long as they can get enough activists onto law journals to write opinion pieces that make historical arguments, that judges can pretend to point backwards in time having clear-headed wisdom about what people thought "back then," without any clear and objective criteria that can be used to justify the decision or distinguish situations.
In originalism, the law becomes completely arbitrary and based on whichever flavor of the day scholarship judges decide to cite -- even if it's obscure, historically inaccurate, or written from a clearly biased activist perspective.
Ginning up creative ways to reach your preferred outcome and then pretending it's a one-off and so you don't need to explain the logic is a far more political way of making decisions than to ground judicial decision-making in precedent from past legal decisions and from actual text that have to be tested for relevance and accuracy.
"A Consular Report of Death of a U.S. Citizen Abroad is:
Issued by the U.S. embassy or consulate upon its receipt of the foreign death certificate or finding of death by a local competent authority.
An administrative document that provides essential facts about the death, disposition of remains, and custody of the personal estate of the deceased U.S. citizen.
Generally used in legal proceedings in the United States as proof of death;
Based on the foreign death certificate, and cannot be completed until the foreign death certificate is issued (This can take as long as four-to-six weeks, depending on the country)."
I've used communication compliance for various things and in short - if a communication flags on a policy set up by an admin, it generates an alert that is reviewed by an analyst. By default, the username and associated metadata are masked. The analyst can tag the communication as compliant, non-compliant, or ask a second tier analyst to review.
The analyst can also open up an investigation in the eDiscovery module, which prevents the documents from being deleted and allows attorneys or analysts to perform additional searching and tagging. The username, mailbox, and other metadata is not masked in eDiscovery, and so in order to access the investigation someone would need additional permissions.
The upshot though is that even if the classifier detects a message, a human analyst would need to decide how to tag the message, and the decision for how to do so would need to be done according to a defensible policy.
To your concern about not having to look at every word/message - it's less invasive to only investigate targeted communications than to read every message, or sample a fixed number or percentage of messages. I'm not entirely convinced that a ML approach is that much more useful than having a list of risk keywords because there isn't an easy way to measure and tune to the percentage of true positives detected or how many false positives you need to review to find true positives.
Supervised machine learning like this is used pretty regularly during lawsuits to make the exchange of information more efficient but when people use an algorithm to avoid reviewing documents there is typically a process to demonstrate within a certain confidence level and margin of error that the relevant documents have been produced. But if used in a corporate investigation where you would want a higher confidence level and lower margin of error. And to get a higher statistical degree of confidence you need to review more.
Having used the comm compliance tool in m365 and other similar tech - a lot of the comments here seem to miss the point. "Leaver" IT policies are fairly common security practices to limit the risk that someone takes IP or customer lists with them to another job. The point is not to detect whether someone is going to quit but rather to detect unapproved behaviors by someone as they are on the way out the door. There are various compliance tools in Office 365 designed for data retention, eDiscovery, and investigation and this is an offshoot of that. It is more efficient and less obtrusive to target suspect behaviors than to have an analyst or attorney download and review all of an employee's communication and activity.
As I've seen communication compliance used, the leaver policy is enabled when a person is marked within an HR system as leaving the company, or when their Active Directory account is disabled. If certain sequences of activity occur such as downloading lots of files from SharePoint and they are copied to a USB drive or to an external file share, or if a file previously owned by the leaving employee is accessed after the AD account is disabled by an external user, it fires off an alert.
I'm skeptical about the value of the use of a "classifier" given that there isn't much documentation that explains how it works, how it's trained, and any documented workflow to statistically validate the model. Instead of using "classifiers" you can create custom policies based around keywords, regex patterns, or targeting sequences such as download x # of files then copy then delete. I think it would be interesting if you could build a custom classifier using your own positive and negative examples, define your own score thresholds, train models around specific excerpts rather than on entire emails, and test the classifier using a set of human reviewed data.
Regardless though - I'm far less suspicious of the general idea that companies are focused on "inside threats" than whether they understand how things work. Machine learning algorithms are basically just fancy text searching backed by statistical analysis but there are a lot of input variables and also a few different ways to defensibly measure the performance of the tools. The M365 tool doesn't expose much of that and a lot of compliance teams are probably going to be concerned about wasting time chasing false positives.
Then maybe don't invest in such funds or follow the index if you don't like it? There are tens of thousands of other investments to take your money to if you think it's a bad idea, and there are a whole lot of other indexes that evaluate the value of a business based upon different criteria.
"Highest return" can mean different things to different people. Some people want to turn a quick buck while others want to invest in something that will turn a large return over a large period of time.
Perhaps you really just enjoy "virtue signaling" that you like taking risks, but there are a variety of investment strategies. Time will tell of ESGs are an efficient mechanism for the goals they are seeking. But suggesting that we should ban investment strategies that are different than yours doesn't instill a lot of confidence in the soundness of trying to turn a big dollar quick.
The unintended consequences of this seem off the charts. It's not clear what type of moderation is acceptable under the law. The law was designed to target big sites, but very little stops someone from registering tens of millions of users on a site with a particular slant, posting something that will obviously get moderated, and then suing the site.
I can imagine that both active moderation and meta-moderation by voting would expose a site to litigation.
This idea sounds great, until you come up against the realities of organizations that also demand "agile" methodology.
Projects are typically organized with cross-functional teams that have to negotiate project requirements, timelines, and produce deliverables in an iterative manner. The idea that you have a single team leader who is responsible for a single thing sounds great -- if that person gets to pick each member of the team and the team is also responsible for that single thing. you are pulling together teams who report to different people/organizations and who probably are themselves assigned to multiple projects.
If the STL doesn't get to pick the team, or if the team isn't also singularly aligned with a single business focus, you have a situation where the person primarily responsible for an initiative is essentially competing with their team for time. And that STL probably is not empowered to demand cycles from their team because the resources are cross-functional and report to other people, so you need to work with your project manager to get more time for your resources. It can be helpful to eliminate a question of who the "product owner" is, but that product owner is likely to be placed in the unenviable position of getting sandwiched between the business leadership demanding results and teams who have shared responsibilities and who don't actually directly report to the STL.
In short -- whether an organization is large or small, this model is a very good way to find scapegoats for when projects go wrong, but success depends on the organization committing people and technology to a problem rather than a single leader.
This stuff has happened before. It will happen again. I assume that you must believe that the violation of the nine person sacred debate club is far worse than any of the substantive consequences from the actual decision, right?
Specifically -- are you aware that before the Roe v. Wade decision was released in 1973, that news of the decision leaked to the Washington Post? The idea that this has "never occurred" is absurd when a) it has, b) it literally happened in the case that this will overturn.
Are you aware that there was a series of leaks during the Berger court and that everything ended up fine?
> Judicial independence, separation of powers
If the leak came from within the judiciary, how does this threaten the independence of the court?
Roe v. Wade was an interpretation of the Constitution. You might not think it's the correct interpretation, but the decision itself is, in fact, an interpretation of the Constitution rather than a piece of legislation grounded only in itself.
Alito's opinion deciding that there isn't a right, or distinguishing one case from another, is as much a way of "legislating" as Roe was.
And frankly, due to the high likelihood of conflicts in law, this SHOULD be a federal issue. Should states be able to decide who is, and who is not, a human being? Under the Constitution, full faith and credit must be given to the rights afforded by those in other states. If state A says that an unborn child is a person and state B says that they're not, and a pregnant woman travels from state A to B, which state law controls?
The purpose of a judiciary is often to interpret laws that are complicated, often ambiguous, and sometimes in conflict. When people say that judges should just "interpret law" and not "make law," or that these issues should be determined by states... well, the issue will eventually come back to the federal level.
This is the same court that is very likely to find a "human right" to conceal a firearm, despite that premise being contrary to international norms and also contrary to legal historical in America.
In short, America is soon going to switch from a system where a pregnant woman has a human right to self-preservation and instead in many states the life of the unborn child will be privileged over the pregnant woman which is rather far outside international norms.
Factually inaccurate. Your statement could be said about the political branches as well, given that direct elections didn't exist when the Constitution was originally drafted the Congress/President were appointed by state legislatures.
But more specifically -- when the country was founded jurisdiction of the court was limited in nature and mainly involved mediating disputes between state governments. The idea that the Court was the ultimate arbiter of constitutional interpretation was a radical idea that was essentially imposed by the first Supreme Court justice.
If you think that the Court shouldn't be concerned with public opinion, well, the court staying out of public opinion is a large part of Alitio's reasoning here and that belies his argument. If being tasked with issuing public and controversial opinions, the justices shouldn't be political activists who are imposing their own personal agendas regardless of political opinion.
Hand-wringing about "process" is a POLITICAL argument designed to deflect attention from substance. It's an argument that politicians make to change the topic and not an appropriate argument for the courts. Stop trying to change the topic.
And even if accepting this framing -- which "process" exactly has been undermined? Has someone suggested stripping the courts of jurisdiction for certain cases? Have the courts been defunded or had their staffers taken away? Have the number of courts been reduced or the justices circulated to another court? These are all "process" changes well within the power of the other political branches, that aren't happening here.
In short -- quit changing the topic and perhaps read the draft opinion, which waxes philosophically about the value of public debate on controversial opinions.
You think it's a good thing that the judiciary is an ivory tower with absolutely no regard for public perception? These nine people are unelected and appointed to their positions for life. They are insulated from political pressure by the other branches of government. But it is incredibly damaging to a democratic republic if government is unaccountable to the people.
Not to mention, the basic premise of THIS OPINION is that public debate about controversial issues is healthy. Anyone complaining about this leak being damaging are doing a great job of undermining the basic premise of the opinion.
Recently moved to NYC from another city on the east coast. It is expensive to live here, but month over month rent is not excessively expensive depending on where you live. The more frustrating thing about living here is the peculiarities of real estate transactions that I haven't seen in other American cities. There were some substantial discounts pre-COVID but things are normalizing.
In short -- there are five boroughs in NYC - the Bronx, Brooklyn, Queens, Manhattan, and Staten Island. When most people talk about NYC they are talking about Manhattan, but most people tend to live elsewhere. The housing stock is very old (e.g. pre-WWII) and not very sizable compared to other cities. If you are looking for a one-bedroom high rise in Manhattan, expect to pay a lot and see high rent increases. Rents are going up throughout the area but nowhere near what is described in OP.
One of the bigger and more frustrating issues for renters is that due to the density in the area, there is a strange custom where rentals are often managed by real estate brokers who charge a commission similar to the closing cost for the sale of a property, but unlike selling a house where closing is covered by the seller, the broker fee for a rental is typically born by the tenant. The broker fee is often about 8% of the yearly rent -- in other words, about a month's rent (!!). The justification for this is that NYC is a high-density area where there are lots of tenants chasing a small number of properties. In reality, due to Internet postings brokers due practically nothing but opening the door to a prospective tenant and showing up for the signing. This isn't a universal thing, but unless someone tells you that there are "no broker fees" you should likely expect this to be a common occurance
There are some odd things about renting in NYC compared to most US cities that long predated COVID.
> Pardon my sarcasm, but Freedom of Speech is fundamentally tied to the right to be (reasonably) heard
At least in small-l Enlightment liberalism, there is no such "right to be heard" except in the context that people have a right to petition and speak out against the government. You can't compel an audience -- this is why there is a corrolary freedom of association.
I agree with you that what tends to foster healthy social relations and civil society is where there are social norms that encourage debate and opportunities for people from different backgrounds and experiences to interact.
There's a lot of scholarship on that topic and where those spaces exist there are freedoms associated with them, but I think it would be extreme to say that people have a right to an audience.
>The reality of the situations is that these private platforms are the public squares of today, and like it or not, they represent the vast majority of communications.
Internet platforms are a cheap imitation of the town square and I don't see why we should effectively compel speech in order to maintain something like this. Even talk radio is closer to the public square in that much of the programming is live and they take (curated) calls from the listening audience.
The Internet has failed as a viable alternative for the public sphere for a number of predictable reasons. If your argument is that we should have a public square where ideas are openly contested, it's far easier to do that when the decisions are made locally in a manner that's closer to the public.
>Are there significant barriers to a left wing talk radio show? From what I understand, the issue isn't in institutional barriers, but instead a lack of a market.
Talk radio used to be closer to a public square but due to consolidation of local stations under basically a couple of owners starting in the 1980's, right wing shock jocks dominate the schedule. So, to the extent that there isn't a "market," it's for the reason you complain about regarding tech platforms and the result has been the absolute opposite of your complaint -- right wing speech is constantly present there. And frankly, take a look at tech platforms and you'll see that there are huge volumes of right wing content.
>However, we've very much seen the inverse for right-wing platform, with anything from payment processors to cloudflare and other core infrastructural components locking them out.
Those platforms are the opposite of a public square where ideology is contested rather than explicitly defined.
To directly address your point -- a lot of those were shut down for reasons beyond their politics. You can find any number of expressly right wing forums and websites on the Internet. As I've pointed out, talk radio has far more reach and impact than some of these tech platforms for better or worse.
First, speech is not wholly "centralized" on private platforms. The purpose of platforms is to provide a centralized service for content, but platforms don't have the power to eliminate alternate forums for speech. There aren't Spotify brownshirts burning down indie music labels and shaking down local bands that don't sign up, or showing up at random doors to bother individuals who refuse to tune in.
Second, the idea that platforms are reacting to public opinion precisely goes against the idea of authoritarianism.
If we're going down this path -- why don't we talk about talk radio in the US, which is essentially a precusor to Joe Rogan style content and is dominated by right-wing shock jocks. Does the absolute dominance of the right wing on talk radio and the absence of left-wing content mean that there is no free speech? Or I guess to take it to the level of your dystopian fantasy, should we live in a world where cars are programmed to require the listener to listen to talk radio and prevent anyone in cars from turning off the dial?
You seem to operate under the presumption that content and culture generally can only be created on major platforms. Nothing stops creators from finding other spaces to post their content. It's what sub-cultures have done pretty much throughout time -- find alternate spaces to explore ideas that might be outside of the mainstream.
It's not like Spotify is sending hit squads out to shake down artists that don't join the racket, or harass studios and sites that host content they disagree with.
There is a lot you can do with a big microphone, but perhaps the Internet isn't and never will be the utopia that people imagined it would be. In a different world where large tech companies were completely hands off and governments embraced a speech free for all, many people will still feel that they don't fit in mainstream spaces and will need to find another forum.
"if you're big and controversial, you essentially need DDoS protection, meaning you're dependent on the goodwill of a few big corporations."
How is this any different than in the analogue world? If you want to rage against "the system" in a local bar or in your living room with a few of your friends, nobody is going to bother you. If you have a large following, you are likely to face counter-speech or even moral suasion by others who don't like what they are hearing.
The difficulty of many recent legal controversies is not that they are legally difficult to resolve using typical jurisprudence but that the outcomes of the case are controversial. If that's what you mean about becoming a super-legislature, then the issue is probably with the nature of judicial review rather than how it's being done.
Legislative intent is frequently applied by scholars who subscribe to different legal philosophies but not necessarily tell the original intent of a law. Debates within a legislative body are probably better evidence than second hand sources, but on the other hand -- legislatures are typically made up of lots of individuals who don't speak with a unified voice, and there may be differing interpretations of the law.