Severino’s lawsuit, which contradicts a foundational pillar of conservative legal thought, thus raises a red flag. It seems unlikely that Severino simply wants his ACUS job back, which is, after all, a part-time, unpaid position. In response to Slate’s request for comment, Severino—who now serves as a senior fellow at the Ethics and Public Policy Center directing its HHS Accountability Project—declined to say whether he intended to take down Humphrey’s. Instead, he gave four other reasons behind the suit. “I want to continue making valuable contributions to ACUS, the rules governing appointments should be consistent regardless of who is in power, current case law is on my side, and I refuse to be bullied by the President,” Severino told Slate.
Monday, May 31, 2021
Biden’s Justice Department is walking into a trap set by Trump appointees.//Stern // Slate
Dorf on Law: Race, Religion, and Supremely Pernicious Constitutional Interpretation
Sunday, May 30, 2021
Re-upping: ...Segall looks back at Shelby County
Reasonableness in the law--which involves a host of professional, prudential and practical judgments beyond simple logic--is shaped by social influence, whether or not lawyers care to admit it.... [T]he perceived quality of legal reasoning and legal arguments are not exogenous from social influence. Indeed, judgments of legal quality and social influence mutually shape each other. This mutual influence is what allows legal arguments to move from off-the-wall to on-the-wall, as they have so many times before in American history. What moves arguments from off-the-wall to on-the-wall depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ--or even the best legal argument, all things considered--then it becomes on-the-wall.
Segall goes on to apply this principle:
Balkin's analysis is smart and accurately reflects the rise of many legal arguments (such as the infamous broccoli argument accepted by five Justices in NFIB v. Sebelius). I do want to suggest, however, that Balkin's analysis is under-inclusive in one important sense: sometimes an off-the-wall legal argument is adopted by the United States Supreme Court for no other reason than a Justice or the Court says so, and when that happens, the argument is not only on-the-wall, but becomes the law of the land, no matter how legally crazy it happens to be.
There are many examples of this phenomenon, but the most important and far reaching one in recent times is Chief Justice Robert's literal invention of a "fundamental principle" of "equal state sovereignty" in two important voting rights cases: Northwest Austin v. Holder, and Shelby County v. Holder.
Both cases of course involved Section 5 of the Voting Rights Act. In Northwest Austin, the Court resolved the issue on statutory grounds, but Roberts wrote the following:The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. (Emphasis added).As other scholars have pointed out, before Roberts wrote this paragraph, there never was any, much less a "fundamental principle," of equal state sovereignty limiting Congress' power, and the cases Roberts cites don't say otherwise. In fact, as to the 15th Amendment specifically, the provision governing race discrimination in voting, the Court in Katzenbach explicitly rejected the principle in a part of the very sentence Roberts cites above, but which he sneakily replaced with an ellipse.
Here is the original passage from Katzenbach: "In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.... The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." (Emphasis added).
Notice how the phrase "for that doctrine applies only to the terms upon which States are admitted to the Union," disappeared from Roberts' quotation. Nevertheless, in Shelby County, Chief Justice Roberts used the alleged "fundamental principle" of equal state sovereignty several times to argue that Congress needed strong reasons to treat different states differently despite the undeniable facts that no text in the Constitution supports such an idea, and the unambiguous text of the 15th Amendment says that Congress may enforce it through all "appropriate legislation." He simply cited his own opinion in Northwest Austin, which completely misquoted Katzenbach.
The idea that Congress can't treat some states, especially the Southern ones, differently when it comes to racial discrimination (absent a strong reason) when Congress acts under the authority given it by the Reconstruction Amendments, enacted in part to change the behavior of the Southern States, is an "off-the-wall" legal argument based on text, history and precedent. Yet, by mere ipse dixit, Roberts and the other conservative Justices employed this facile idea to render mostly useless what many people think is the most important statute ever enacted by the Congress of the United States--the Voting Rights Act (the specific version struck down was passed by a unanimous Senate and signed by President George W. Bush).
Balkin is correct that off-the-wall arguments often become on-the-wall due to their acceptance by political parties, lower court judges, social movements, and academics. But sometimes arguments move from off-the-wall to on-the-wall for no other reason than the Supreme Court adopts them despite persuasive text, history, and precedent to the contrary. Will Judge O'Connor's off-the-wall striking down of the ACA be reversed on appeal? Maybe, and it should be, but please don't bet your Texas ranch on it.
Shelby County gave us the Texas anti-voting law - Christopher Sprigman // NYU
NYU Law Professor Christopher Sprigman has an excellent thread on the flaws of and the damage wrought by the Supreme Court decision in Shelby County.
Thread by @CJSprigman: None of this could have happened before 5-4 right-wing Supreme Court majority gutted Voting Rights Act in Shelby. In that one case, the Supreme Court may have done more to undermine American ...… https://t.co/DIVXurx7i7
— George Conk (@GeorgeConk) May 30, 2021
Saturday, May 29, 2021
Supreme Court: Breyer’s new warning for Democrats comes at the worst possible time - Vox
"If you need Republican support, talk to them. 'My friend, what do you think?' Get them talking and they'll eventually say something you agree with."
Justice Stephen Breyer — a Bill Clinton appointee who has served on the Supreme Court since 1994 — has chosen this moment to admonish liberals for failing to respect the rule of law.
He’s done so despite the fact that less than five months ago, a violent mob of former President Donald Trump’s supporters invaded the US Capitol in a vain attempt to keep Trump, who had just lost his bid for reelection, in office without an electoral mandate. In the months that followed, state-level Republicans loyal to Trump passed legislation that appears to serve no purpose other than to restrict voting. And now, Republican leaders are blocking a bipartisan investigation into the January 6 riots at the Capitol.
And yet, in the midst of what might be the greatest threat to liberal democracy in the United States since Jim Crow, Breyer warns that liberals are endangering the rule of law because a small minority of Democrats have suggested taking aggressive action to rein in the Supreme Court.
And Breyer is doing this at the same time that he’s urging Democrats to find common ground with a party that refuses to investigate an attack that endangered much of Congress.
A People’s Postal Agenda - Postal Times
Friday, May 28, 2021
The cruelty is the point: Johnson v. Precythe (5/24/2021)
From Here to Utopia | Commonweal Magazine
Utopian communities like the Catholic Worker, Homeboy Industries, and others like them hold at least four lessons for the secular Left. First, utopian forms of alternative communities are possible now, even at a medium scale. There is no need to wait for a future society that has transitioned beyond neoliberal capitalism. Many religious communities are unwittingly instantiating them piecemeal as we speak, from the bottom up.
Second, electoral politics are important, but if not fed by deep roots, such victories will be ephemeral or quickly betrayed. Moving beyond neoliberal capitalism entails moving beyond the indifference and greed of the libertarian self.
Third, today’s democratic socialists should seek out ways to create, support, or join communities of radical belonging with the poor, often (and even) religious ones. They should recognize that without cultural liturgies that place them in solidarity with the poor they risk drifting unwittingly into other patterns of worship—a political hero, an ideological test, an abstract vision of the future, or revenge against opponents. The twentieth century was full of Leftist movements with lofty ambitions that quickly turned violent as they fell out of unity with the people they purported to help.
Finally, critics of neoliberal capitalism should steer clear of the easy temptation to ignore, marginalize, or alienate religious communities. They should see that Catholic communities in particular are cells of individuals learning to share material life in common, beyond alienation and scarcity. They are utopian collectivities ordered by the rhythms of gathering and redistributing. Despite their many flaws, Catholic communities bear witness to the possibility of mutual interest built not on consumerist entertainment, not on state power or ethno-nationalism, and certainly not on ideological uniformity, but on interdependent vulnerability and care for the neighbor without precondition. With a little hope, we might even see in them the germ of a utopian movement that could ramify in concrete networks across the United States, an actually existing solidarity.
Thursday, May 27, 2021
William Barr: D.C. Bar Disciplinary Counsel Refuses to Investigate
1. Unconstitutionally ordering, overseeing and supporting the forcible dispersal of constitutionally protected peaceful protests at Lafayette Square. In so doing, Mr. Barr unethically represented Mr. Trump’s personal interests in a “photo op” rather than carrying out his ethical duty to represent his client — the people of the United States — to protect their fundamental interest in their constitutional rights.
2. Misleading Congress and the public by asserting that the Mueller Report did not contain sufficient evidence to establish that President Trump committed the crime of “obstruction of justice.”
3. Deceiving the American people in his unprecedented December 2019 attack on a report from a Justice Department Inspector General. Mr. Barr misrepresented the IG’s determination that the FBI had a proper basis for launching its 2016 counterintelligence investigation — by leaving out crucial evidence on which the IG relied.
4. Issuing harmful and totally unnecessary public prejudgments of FBI personnel during a pending criminal investigation he was overseeing in which they were potential defendants – seriously interfering with the administration of justice.
Harshbarger concludes "All of these matters are part of Mr. Barr’s pattern of placing the president’s personal and political interests ahead of his ethical duty to represent the interests of the United States in dispensing evenhanded justice under the rule of law and upholding the Constitution."
Tuesday, May 25, 2021
George Floyd’s murder demanded more from the Catholic Church | America Magazine
Monday, May 24, 2021
What George Floyd Changed - POLITICO
n the year since George Floyd died under the knee of a Minneapolis police officer, the explosive waves of national protest that followed have taken on almost a settled meaning: They were calls for police reform, and for America to take a hard look at the racial injustice threaded through its civic life.
But in its breadth and impact, the reaction to Floyd’s killing also blew through any conventional expectations for what a “protest” might touch. The reckoning it prompted about race in America extended to workplaces, classrooms, legislatures; it shook the worlds of art, literature and media. Americans began to talk about their own history differently. They physically pulled down monuments. The waves crashed against the fence of the White House, and rippled overseas.
Saturday, May 22, 2021
Video: Joe Biden & Catholicism in the United States - panel with Massimo Faggioli - Fordham
Massimo Faggioli, professor of historical theology at Villanova has written a timely book Joe Biden and U.S. Catholicism.
Fordham Law School's Institute on Law, Religion, and Lawyers work sponsored a second panel discussion which I moderated. discussants joining Faggioli were political scientist Laura Olson (Clemson), philosopher Michael Baur (Fordham) and Christopher White - newly named Vatican Correspondent for National Catholic reporter.
The hour long panel discussion touched on key topics such as the pending motion before the U.S. Conference of Catholic Bishops to bar from communion practicing Catholics public figures like Joe Biden, Nancy Pelosi, and John Kerry from participating in the sacrament of the Eucharist - Holy Communion. This form of ex-communication is resisted by the Vatican in a cautionary letter to the U.S. bishops from Cardinal Luis Ladaria of the Vatican's Congregation for the Doctrine of the Faith. Perhaps more obliquely Pope Francis himself last week met with John Kerry to discuss climate change.
The discussion ranged much more broadly to the role of the Catholic university, female deacons, the “cultural” Catholic, blessing LBGQ unions and the German experience, institutional racism in the church, the role of Catholic media in the U.S.
- GWC
Friday, May 21, 2021
Opinion | The only way to solve the Israeli-Palestinian problem - The Washington Post
The recurring pattern of violence obscures a seismic shift that has taken place over the past few decades. Israel is now the superpower of the Middle East. A strategic studies institute at Bar-Ilan University recently laid out the disparities. Israel’s per capita GDP dwarfs that of its neighbors: it is 14 times that of Egypt, eight times that of Iran, nearly six times that of Lebanon, and nearly double that of Saudi Arabia. Israel has built an industrial and information-age economy that excels in highly sophisticated arenas such as artificial intelligence, computer-aided design, aviation and biotechnology. It spends 5 percent of its GDP on research and development, more than any country. It has built up foreign exchange reserves of more than $180 billion, placing it at No. 13 in the world, just ahead of Britain. For a nation of 9 million people, these are stunning numbers.
A military comparison between Israel and its neighbors is even more lopsided. Israel beat a combined Arab force in 1967 in six days. Today, the contest would be over in hours. Israel has a larger defense budget than Iran and enjoys both a quantitative and qualitative edge in crucial areas such as air power — even though Iran has almost 10 times the population. And, of course, Israel has the only nuclear arsenal in the region, estimated at almost 100 warheads.
Thursday, May 20, 2021
Editorial: Refugee resettlement has a political cost. It is still worth paying. | America Magazine - The Jesuit Review
The Biden administration announced in early May that it will raise the historically low cap on refugee settlement set by former President Donald J. Trump to 62,500 refugees from 15,000. Under Mr. Trump’s draconian policy, the refugee resettlement process ground almost to a halt; the applications of over 100,000 people were put on hold indefinitely. Refugees from a number of Muslim-majority countries, including Somalia, Syria and Yemen, were blocked almost entirely, despite the devastation caused by war in all three countries. Besides allowing more applicants from these mostly Muslim nations, Mr. Biden’s ruling also provides more slots for refugees from other nations in Africa, the Middle East and Central America.
This is welcome news and a needed recognition that the United States has an obligation to ease the suffering of these people. We are not only the wealthiest nation in the world; we are a major instigator of the violence and political turmoil that has spurred refugees to abandon their desperate living situations worldwide. And despite heated rhetoric to the contrary, refugee resettlement does not have a significant negative impact on the U.S. economy. In fact, like most immigrants to the United States, refugees have historically proven to be significant contributors to the American economy within a generation of resettlement. It should also go without saying that the American people have a moral obligation to welcome the stranger, the orphan and the widow—a mandate present in the Bible and shared by almost every religious tradition.
The Agenda How the Supreme Court is reshaping America - Ian Millhiser
For forty years - Ruth Ginsburg and Sonia Sotomayor excepted - every new member of the Supreme Court has taken a seat held by someone to the left of the new justice. Just in case you're wondering - start with Thurgood Marshall being replaced by Clarence Thomas, and end with Notorious RBG herself replaced by her antonym Amy Coney Barrett, a Handmaid in the cultish Catholic movement People of Praise .
So what is the Agenda of the right wing Catholic and conservative supermajority on the court? Voting rights, environmental regulations, gun control, and the right to terminate a pregnancy are all on the chopping block. Chief Justice Roberts - who is responsible for neutering the Voting Rights Act is the most moderate member of the conservative group.
The obvious remedy - enlarging the Supreme Court so as to outvote the reactionaries - appears to be beyond reach. Some damage can be repaired in the 18 month window til the next federal election, such as by loading a must pass bill with riders reversing bad decisions reached on non-Constitutional grounds. But conservative judges have long abandoned the "least dangerous branch" ethos and aggressively pursue their agenda which further entrenches white, rural, and business interests.
Ian Millhiser spells it out in conversation with Irin Carmon of New York Magazine, in a Strand Bookstore talk about his new book The Agenda: How a Republican Supreme Court Is Reshaping America.
- GWC
Wednesday, May 19, 2021
Abortion and the Supreme Court's institutional responsibility
The Supreme Court's agreement to hear the challenge - upheld below - to the Mississippi law banning abortion after fifteen weeks has prompted thought. As did today's column in the Washington Post by David Drehle about the court and institutional responsibility.
Tuesday, May 18, 2021
Monday, May 17, 2021
Justice Barrett's moment of conscience - Jackson Women's Health v. Dobbs
The Supreme Court has agreed to review Mississippi's banned on abortions of any fetus a physician has certified is more than fifteen weeks gestation. The law's exceptions are narrow:
Severe fetal abnormality" is defined as "a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life-saving medical treatment, is incompatible with life outside the womb." "Medical emergency" is defined as a condition in which "an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition arising from the pregnancy itself, or when the continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function." Also, the medical licenses of doctors who violate the Act "shall be suspended or revoked[.]"
Jackson Women's Health Org. v. Dobbs, 945 F.3d 265, 269 n.3 (5th Cir. 2019)
Amy Coney Barrett testified at her confirmation hearing that she would follow the law, not the dictates of the Roman Catholic Church, a conservative movement within which she is a long time member. She lived up to that testimony soon after taking the oath of office, joining the majority in permitting several executions to proceed. The Catholic Church's catechism now firmly bars resort to capital punishment. Pope Francis declared in his encyclical Fratelli Tutti - On Fraternity and Social Friendship “All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms”. True to her testimony Barrett put no obstacles in the way of legally sanctioned executions. She dissented only in a case in which the State had refused to provide a condemned man the comfort of a Muslim chaplain.
Coney Barrett was coauthor with then Notre Dame Law Professor John Garvey of an article in the Marquette University law review. She and then Notre Dame professor, now Catholic University President John Garvey opined in 1998 that
"While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating."
Last summer in June Medical Services ,with John Roberts casting the deciding vote the court by a 5-4 vote struck down a Louisiana law which barred abortions performed by a physician who lacked hospital admitting privileges. But the death of Ruth Ginsburg whose seat at the table is now occupied by Justice Barrett has drastically changed the ideological composition of the court.
The Mississippi law firmly contravenes Roe v. Wade which allows pre-viability abortions. This will pose a severe intellectual challenge for Barrett who listed among those she consulted on her 1998 article the prominent natural law theorist John Finnis. Formerly at Oxford, he is now at Notre Dame. Finnis in the conservative Catholic journal First Things recently called for the recognition of 14th Amendment personhood for every fertilized egg, making abortion unconstitutional. Barrett, like other political conservatives, seems untroubled by her Church's recent shift to capital punishment abolition, having ratified the execution of Lisa Montgomery, a profoundly damaged woman.
But the abortion issue will be a much more profound challenge for Barrett - despite her acknowledgement in a 2013 Texas Law Review article that some cases are "super precedents" - wrong but so thoroughly embedded in our jurisprudence that they cannot be discarded. She will find herself sitting in her chambers with a stack of briefs by bishops, and other ideological and religious confreres calling for her to spurn fifty years of precedent and reliance and act on conscience. She will have to confront the constitutional argument for fetal personhood of her Notre Dame colleague who is sure to be cited in briefs and celebrated by his former doctoral student Neil Gorsuch whose dissertation was written under the guidance of Finnis.
- GWC
Sunday, May 16, 2021
Pope Francis and John Kerry meet to discuss climate change | America Magazine
A smiling Pope Francis welcomed John Kerry, President Joseph R. Biden Jr.’s special presidential envoy for climate, in a private audience at the Vatican this morning, May 15. It was the second time they spoke together at length; they last met in 2016, when Mr. Kerry was U.S. Secretary of State.
Vatican Media photos revealed a relaxed and friendly atmosphere for the face-to-face private conversation (with the assistance of a Vatican interpreter) in the private library of the Apostolic Palace. The two also exchanged gifts. Mr. Kerry gave Pope Francis a copy of his autobiography, Every Day Is Extra, and the Pulitzer-winning environmental novel The Overstory by Richard Powers. Pope Francis gave Mr. Kerry a signed copy of his message for World Peace Day, a collection of his encyclicals and a sculpture of a grapevine.
The Wuhan Lockdown: Yang, Guobin: Columbia University Press
This book tells the dramatic story of the Wuhan lockdown in the voices of the city’s own people. Using a vast archive of more than 6,000 diaries, the sociologist Guobin Yang vividly depicts how the city coped during the crisis. He analyzes how the state managed―or mismanaged―the lockdown and explores how Wuhan’s residents responded by taking on increasingly active roles. Yang demonstrates that citizen engagement―whether public action or the civic inaction of staying at home―was essential in the effort to fight the pandemic. The book features compelling stories of citizens and civic groups in their struggle against COVID-19: physicians, patients, volunteers, government officials, feminist organizers, social media commentators, and even aunties loudly swearing at party officials. These snapshots from the lockdown capture China at a critical moment, revealing the intricacies of politics, citizenship, morality, community, and digital technology. Presenting the extraordinary experiences of ordinary people, The Wuhan Lockdown is an unparalleled account of the first moments of the crisis that would define the age.
I don't want everyone to vote...May 14, 2021 - Letters from an American
Friday, May 14, 2021
Francis to meet John Kerry days after Vatican's warning to US bishops | National Catholic Reporter
ROME — Pope Francis will meet at the Vatican with John Kerry, President Joe Biden's special envoy on climate issues and a former U.S. Secretary of State, on May 15.
The meeting has not been officially announced by the Vatican but was added to the city-state's planning calendar for accredited journalists, which indicated the encounter is expected to last less than a half-hour.
Kerry, a pro-choice politician and the 2004 Democratic presidential nominee, is Catholic. The papal meeting comes as the U.S. bishops are known to be preparing a statement about whether pro-choice Catholic politicians, such as Kerry and Biden, can receive Communion.
The Vatican's Congregation for the Doctrine of the Faith weighed in on the U.S. prelates' debate on May 7, with a letter warning the bishops that such a statement could "become a source of discord rather than unity within the episcopate and the larger church in the United States."
Kerry is in Rome as part of a three-country Europe tour ahead of the next U.N. climate conference, set to be held in Glasgow in November.
He was also set to speak May 14 at a meeting hosted by the Vatican's Pontifical Academies of Sciences and Social Sciences, focused on how world governments can address rising inequality as economies begin to reopen with the easing of the coronavirus pandemic.
Thursday, May 13, 2021
Conservative Catholic media meet Ladaria letter with denial | National Catholic Reporter
The official organs of conservative Catholic opinion have engaged in propaganda the past couple of days that would make the Russian paper Pravda proud. The aim was to convince their readers that the letter from Cardinal Luis Ladaria, prefect of the Congregation for the Doctrine of the Faith, to Archbishop José Gomez, president of the U.S. Conference of Catholic Bishops, did not say what it plainly said: Slow down and rethink this reckless rush to adopt a national policy barring U.S. President Joe Biden from Communion, that our bishops' conference is not the only conference in the world, and that abortion is not the only issue with claims on the conscience of a conscientious Catholic. Instead, denial was the order of the day.
The National Catholic Register ran a story from the Catholic News Agency, both owned by EWTN, which had a curious headline: "Congregation for the Doctrine of the Faith Highlights Doctrinal Note on Catholics in Politics in Letter to US Bishops on Eucharistic Coherence."
Well, yes, the Ladaria letter did highlight the 2002 doctrinal note, but to what end? The headline writer at the Spanish website Religion Digital was able to figure it out: "El Vaticano frena los intentos de los obispos norteamericanos por excomulgar a Biden," that is, "The Vatican brakes the aim of those North American bishops who want to excommunicate Biden." And the Catholic News Service, the official news service of the U.S. bishops, ran an excellent story by Cindy Wooden headlined: "Cardinal Ladaria cautions US bishops on politicians and Communion."
Not until the eighth paragraph does the Register/CNA story get to the heart of the matter, that Ladaria was reminding Gomez that during the 2019-2020 ad limina visits, the Congregation had advised proceeding with a national policy only if the effort would build unity among the bishops. And, seeing as the opposite appeared more likely, Ladaria set forth a series of hurdles — any one of which is enough to bring the crusade to deny Biden Communion to an end.
EWTN's "Nightly News" program did not amend its broadcast on the day the story broke but ran what by then seemed an ironic, and sad, interview with San Francisco Archbishop Salvatore Cordileone about his pastoral letter on the subject. The second night, the show referenced the Ladaria letter but directed viewers to the Register for more detailed information. In short, they punted.
Monday, May 10, 2021
Legal Obstacles to #MeToo Cases in China’s Courts - Jamestown
Introduction
On March 8, a Shanghai court awarded $15,000 to a plaintiff in a sexual harassment lawsuit against her colleague in a rare legal win for the #MeToo movement in China (Sixth Tone, March 10; Washington Post, March 20). Although China has enacted a string of legal provisions targeting sexual harassment over the past sixteen years, with the new Civil Code’s Article 1010 being the most recent example, survivor suits against harassers are rare.[1] Meanwhile, successful labor contract suits against companies who fire employees for sexual harassment are numerous, as are defamation cases against survivors who make public allegations.[2]
Why the imbalance? Besides the social stigma and political sensitivity surrounding sexual harassment in China, legal rules play a significant role in hindering #MeToo (as they do elsewhere) (SupChina, January 28). To be sure, some reforms have improved access to courts. Since 2015, the case registration system has made it more difficult for courts to arbitrarily reject case filings.[3] And in 2019, the Supreme People’s Court rolled out a new cause of action specifically for sexual harassment.[4] But once survivors get to court, the rules of evidence still work against them. When alleged harassers bring litigation for defamation or illegal termination, the rules give them an advantage.
The Burden of Proof Is Heavy for Plaintiff Survivors
Generally, a plaintiff in civil litigation in China must prove the facts of the case to a “high degree of likelihood” to win.[5] “High degree of likelihood” does not have a universally agreed-upon definition, but some Chinese legal scholars have described it as the court having a certainty of “85 percent” or more.[6] Last year in the Procuratorate Daily, a local legal official described it as when “the probative force of one party’s evidence far exceeds that of the other party.”[7] China’s standard of proof is arguably similar to that of some other civil law countries, like Germany, whose Federal Supreme Court stated that judges should reach a certainty “that silences doubt without completely excluding it.”[8] In contrast, Anglo-American common law uses the “preponderance of the evidence” or “balance of probabilities” standard. The plaintiff just needs to prove the facts claimed are more likely than not to have occurred—even if more likely just by a hair.
Structural differences help explain the two systems’ respective standards. In the common law system, judges do not conduct investigations. Litigants are solely responsible for gathering evidence and constructing arguments to convince the jury or judge of their case. By contrast, civil law judges, including Chinese judges, have the power to gather evidence, call and question witnesses and then make determinations of fact. Since it is often easier to convince oneself of something than to convince someone else, it makes sense that judges in this dual role should be required to attain a high degree of certainty.
Although Chinese judges can conduct investigations, they infrequently do so. Chinese judges have crushing caseloads and neither the time nor resources for evidence collection. Since the 1990s, trials in China have also been moving toward an adversarial model where the litigants take a more proactive role. Although the work now falls on the litigants, they do not have the same evidence collection tools as the courts, and plaintiffs still need to meet the “high degree of likelihood” standard.