Thursday, April 6, 2023

The Scott Trust Legacies of Enslavement Report | University of Hull

 

Statement and apology from the Scott Trust board

Summary

The extensive academic research summarised above makes clear that John Edward Taylor, our founding editor, and most of the backers who helped fund the Manchester Guardian had links to transatlantic slavery.

The Scott Trust and Guardian apologise unreservedly for their roles in this crime against humanity.

Below, we set out in more detail our response to these findings, and a set of proposals that we hope respond in a meaningful way to the descendants of those affected. We are committed to developing and delivering on these proposals in partnership and consultation with affected communities around the world.

Background

Between the 16th and 19th centuries, millions of Africans were trafficked across the Atlantic to the Americas. Subsequently, enslaved people were systematically forced to work – often on plantations – and live in inhumane conditions and subjected to poor nutrition, disease and brutality, leading often to premature or violent death. Under this form of chattel slavery, those enslaved had no freedom or rights, and were listed as “property” in plantation accounts and itemised as such in inventories.

Although Britain’s transatlantic trade in enslaved Africans was abolished in 1807, the practice of slavery remained legal within the British empire until 1833, followed by an apprenticeship system until 1838. British businesses, institutions and wealthy families and individuals continued to benefit from slavery in the rest of the world for many decades thereafter. Chattel slavery created intergenerational wealth and political power not only in the American south and the British West Indies but also in many other parts of the world. Its legacy is a major factor in the racial, economic and social inequalities faced today by Black people across the globe.

The industrialisation of cotton relied on​ ​the production of raw materials by enslaved workers across the Americas, and Manchester’s 19th-century nickname, Cottonopolis, illustrates the intertwined nature of the city’s identity with its trademark commodity. The wealth created in Manchester, primarily by cotton as well as sugar and other commodities, led to a boom in several other industries.

In this civil-war era US cartoon, John Bull, the emblem of British ‘liberty’ – with a paper labelled ‘Manchester’ in his pocket – kneels on the body of a slave before a large, crowned bale of cotton.
In this civil-war era US cartoon, John Bull, the emblem of British ‘liberty’ – with a paper labelled ‘Manchester’ in his pocket – kneels on the body of a slave before a large, crowned bale of cotton. Photograph: Getty Images

The city’s dominant industry seems also at times to have unduly influenced the Manchester Guardian’s editorial positions in the first few decades of its existence. Though the Guardian generally opposed slavery in the Caribbean and South America, when slavery was abolished in Britain in 1833 it supported the award of huge sums of compensation to enslavers. “We are convinced,” ran one editorial in June 1833, “that no plan for the abolition of slavery could have been worthy to be proposed by the government, or adopted by the legislature, of Great Britain, which was not based on the great principles of justice to the planter as well as to the slave.”

In the decades that followed, the paper’s editorial position on the US civil war often ran counter to the cause of emancipation, or favoured the Confederacy. As the Guardian’s editor-in-chief, Katharine Viner, wrote in 2017, around the time of the American civil war the newspaper “got too close to the Manchester cotton merchants who paid for the advertising that supported the paper”.

As is documented in the research.

The Scott Trust Legacies of Enslavement Report | University of Hull
Colonial slavery shaped modern Britain and we all still live with its legacies. Guardian Media Group is a values-centred global news organisation that gives a voice to the powerless. It wanted to discover more about any links it might have with historical slavery. On a broader scale, confronting Britain’s legacies of slavery and colonialism pose multifaceted challenges which include censorship, highlighting stories of the enslaved and a lack of engagement with the communities whose stories and histories are being told in this type of research, such as African Caribbean and Indo Caribbean communities.

Experts from the Wilberforce Institute were invited to continue work on "The Scott Trust Legacies of Enslavement Report", conducting in-depth research to investigate any links of John Edward Taylor (founder of the Manchester Guardian newspaper in 1821), his associates, and his or their business activities with historical slavery.  This followed initial research by the University of Nottingham. The research was conducted first by Dr Sheryllynne Haggerty, a fellow at the Wilberforce Institute, and Dr Cassandra Gooptar, and later by Dr Gooptar and Professor Trevor Burnard, Director of the Institute.

This research was conducted and produced in a way that strived to keep the perspectives of the enslaved and their stories at the forefront. Each step of the way, there was genuine effort to understand the sombre and heavy weight of what this research means as well as its part in helping to present a holistic narrative of Britain’s legacy of slavery. The research promoted an uncensored understanding of Britain’s legacies of slavery and colonialism and increased engagement with the Caribbean.

Wednesday, April 5, 2023

And So It Begins: On the First Charges to Drop Against Former President Donald Trump - Lawfare

And So It Begins: On the First Charges to Drop Against Former President Donald Trump - Lawfare
By Benjamin Wittes

Over the past several days, a debate has raged over the merits of an indictment nobody had seen. Is it a strong case? Is it weak? Is it legally deficient? Is it an outrage that New York prosecutors are bringing a case that should be federal or shouldn’t be brought at all? Is the legal theory by which prosecutors are bumping up misdemeanor records falsification into felonies too much of a stretch? Is the whole thing a witch hunt—an effort to target Donald Trump, rather than to prosecute a crime? Is it a great shame that this New York case, not something related to Jan. 6 or Mar-a-Lago documents or election interference in Georgia, is the first criminal case against a former president in American history actually to proceed to indictment?

A great many commentators didn’t bother to wait the few days it would take to actually read the indictment before weighing in at least semi-informed on these questions. 

Ironically, even now that the indictment has actually been unsealed, it’s still too early to answer many of them. 

The indictment sought by Manhattan District Attorney Alvin Bragg and released today by the city’s Supreme Court—New York’s confusing name for trial courts—is not a trivial document. And Trump’s defenders should not kid themselves that this case is mere politics. It alleges serious misconduct: plotting to pay hush money to multiple people to avoid electoral consequences and falsifying documents to cover it up. And it does so with an apparently powerful array of witnesses and documents to back it up.

Analysis: A Surprise Accusation Bolsters a Risky Case Against Trump - The New York Times

Analysis: A Surprise Accusation Bolsters a Risky Case Against Trump - The New York Times

Problem for the Trump Indictment: Is There Any Precedent for an Internal Business Record? (Plus Preemption Problems!) – SHUGERBLOG



Jed Shugerman provides an alarmist but helpful take on the Trump indictment in NY.
Personally I don't see the preemption argument at all (he is hiding his evasion of federal law - how is that preempted); and that it is an internal business record ((i.e. not filed anywhere) is irrelevant as its purpose is to aovid his own tax liability by masking it as a business expense owed to Michael Cohen?
Problem for the Trump Indictment: Is There Any Precedent for an Internal Business Record? (Plus Preemption Problems!) – SHUGERBLOG

Tuesday, April 4, 2023

Margot Stern Strom, Anti-Bigotry Educator, Dies at 81 - The New York Times



Margot Stern Strom, Anti-Bigotry Educator, Dies at 81 - The New York Times
By Richard Sandomir

Margot Stern Strom, a former schoolteacher who in the mid-1970s turned her dismay over her lack of knowledge about the Holocaust into a nonprofit educational organization that develops anti-hate curriculums for teenagers, died on Tuesday at her home in Brookline, Mass. She was 81.

Her daughter, Rachel Fan Stern Strom, said the cause was pancreatic cancer.

Ms. Strom was teaching seventh- and eighth-grade language arts and social studies at the Runkle School in Brookline in 1975 when she and a colleague, Bill Parsons, attended a workshop on the Holocaust. It was an unsettling experience, which made them realize how little they knew about the Nazis’ murder of six million Jews.

She and Mr. Parsons, she was quoted as recalling on the website of Facing History & Ourselves, the organization they went on to found, felt that they had been “victims of the silence on the Holocaust.”

“And now, as teachers,” she added, “we were perpetuating that silence.”

It was the seed for their creation of Facing History, which uses injustices like the Holocaust, the Armenian genocide, Jim Crow laws that enforced segregation, apartheid in South Africa and the George Floyd killing to help guide eighth to 12th graders’ understanding of the motivations behind racism, extremism and antisemitism, as well as their moral implications and the power of people to shape history’s course.

Saturday, April 1, 2023

Dorf on Law: Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation

Dorf on Law: Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation
By Michael Dorf

With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in ACLU of Ark. v. Griffin concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of SB 4592, the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy.

In an opinion partially granting and partially denying the ACLU's motion for a preliminary injunction, U.S. District Lee Rudofsky agreed with the plaintiffs that SB 4592 could not be constitutionally applied to "practices such as sodomy that the Supreme Court has (whether rightly or wrongly) already deemed constitutionally protected," citing Lawrence v. Texas, but "remains valid with regard to those practices that were clearly constitutionally proscribable at the relevant dates." By including "clearly" in that aspect of his denial of injunctive relief, Judge Rudofsky wrote, "today's order protects against any potential for unconstitutional vagueness."

According to the district court opinion, what practices does SB 4592 validly proscribe? Judge Rudofsky's "not-necessarily-exhaustive catalogue" listed: "bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Does that list sound familiar? It should. The judge expressly borrowed it from Justice Scalia's dissent in LawrenceJustice Scalia's list also included same-sex marriage, but Judge Rudofsky explained that, "in light of the Supreme Court's not-yet-overruled holdings in [Lawrence] and Obergefell v. Hodges, 576 U.S. 644 (2015), sodomy and same-sex marriage cannot constitutionally be proscribed, even though they fall within [the statute's] proscription of deviant sexual practices that were proscribed at all relevant times."

Although the ruling would seem to imperil not only masturbators, that aspect of the law and ruling have drawn the most attention, perhaps because of public statements by Arkansas Governor Sarah Huckabee Sanders. When asked whether, and if so, how the state would enforce the prohibition, the governor (who recently signed the legislation at a ceremony at which she was flanked by anti-masturbation activists) answered a different question, namely what purpose the law serves. "Just as I'm grateful to my mother for not aborting me and therefore we ban abortion, I'm equally grateful to my daddy for not spilling his seed and preborting me."

keep reading

Interview with Christopher Kellerman, S.J. All Oppression Shall Cease - A History of Slavery, Abolitionism and the Catholic Church

 Orbis has posted this interview with Christopher Kellerman, S.J. about his new book All Oppression Shall Cease, 


https://youtu.be/NTPHn226BuM

Contrary to Fed 5th Circuit, NJ Appeals Court Blocks Gun Permit Application





Two courts, one the 5th Circuit, the other the Appellate Division of the Superior Court of New Jersey pose a shocking contrast in approaches to who may lawfully carry a gun.

Finding a path through the hedgerow erected by the United States Supreme Court in New York Rifle and Pistol Ass'n v. Bruen, a New Jersey appellate panel has backed a local Police Chief who rejected a gun purchase permit applicant who did not show that he would not be a threat to public order if  allowed to carry a gun. 

The decision stands in marked contrast to U.S.A. v. Zackey Rahimi. There the United States Solicitor General has filed a petition for certification of a Fifth Circuit decision which answers YES to  the question the SG presents to the high court:
Whether 18 U.S.C. 922(g)(8) possession of firearms , which prohibits the persons subject to domestic violence restraining orders, violates the Second Amendment on its face? 
Rahimi was both subject to a domestic violence order - which he violated, and had engaged in several shootings. In one he retaliated against a man who had bought drugs from Rahimi - but "started talking trash " about him on social media.  Rahimi retaliated by firing   an AR-15 rifle into the man's home.  
The Fifth Circuit ruled that Bruen's command limiting firearms restrictions to those who were not "law abiding"was limited to felons, the mentally ill and "other groups that have been historically stripped of their Second Amendment rights."  Perpetrators of domestic violence were not such a historically recognized categorical group, the Circuit decided.

In the matter of Application of M.U.  New Jersey Appellate Division Judge Richard Geiger defended and applied the statute recently adopted by the state's Legislature to preserve its ability to control the spread of firearms.
In Bruen the Opinion of the Court, authored by Clarence Thomas, declared that judges are not to weigh states' public health or other such concerns against the personal 2d Amendment right to carry a gun:

The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller v. D.C.  It is this balance—struck by the traditions of the American people—that demands our unqualified deference.

As amended in 2022 – post Bruen - N.J.S.A. 2C:58-3[c](5) denies a Firearms Purchaser Identification Card

 

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare because the person is found to be lacking the essential character orf temperament necessary to be entrusted with a firearm.

M.U. had no record of criminal convictions but there was a history of dismissed charges and disturbing behaviour.  Four police officers testified that he had a history of vandalizing property – mailboxes, lights, and fences - and of criminal mischief. He once retaliated against a customer for a failure to pay a $300 bill by using a chainsaw to cut down a tree on the victim’s front lawn.  And  he was once arrested for the 2015 theft of a trailer- which he placed for sale on Craigslist.

The Appellate Division found the Oakland Police Chief reasonably found that M.A. was "lacking the essential character or temperament necessary to be entrusted with a firearm" which New Jersey lawfully demands.

- GWC

April 1, 2023









 

Friday, March 31, 2023

Thursday, March 30, 2023

A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com



Lord Acton too famously said that power corrupts and absolute power corrupts absolutely.  So it is with the United States Supreme Court, a monarchical crew that gains its authority from life tenure and the long tolerance of its claim to have the last word on interpretation of a famously malleable, almost unamendable written constitution.

Today's most dramatic overreach is its absolutist preemption of state legislatures, and of any courts but itself (NY State Rifle Ass'n v. Bruen), and the development of the demand that the Executive can adopt regulations and policies of "major" impact only if Congress spoke clearly - no matter how novel the circumstances.  A conservative law professor Ilan Wurman seeks to rescue this judicial imperialism.  Beau Baumann rebuts.  - GWC 3/30/23
A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com
By Beau Baumann

Recently, we’ve had a new justification for the major questions doctrine (“MQD”) in the form of Ilan Wurman’s Importance and Interpretive Questions, which aims to recast the doctrine as a linguistic canon. Wurman’s project ask whether the MQD can find a defensible justification as an insight into either (1) how Congress drafts statutes or (2) how ordinary language is used when people in conversation delegate authority. You get the sense from the paper that this project was born of Ilan’s pessimism on the MQD’s pedigree as a substantive/constitutional canon. He says that several version of the MQD are just not defensible or are only defensible if the doctrine doesn’t—as most scholars think it does—require clarity over and above plain meaning. What follows is an eclectic collection of evidence that gives Wurman’s piece a kitchen-sink feeling. I don’t mean that as a criticism; Wurman collects evidence from many sources to try to see if anything sticks. I think it’s a creative work that will give everyone a lot to deal with in the literature. But at the same time, it can be dizzying how Wurman toggles back and forth between different sorts of evidence; from (what I think of as) intentionalist evidence about congressional staffers’ views on drafting, to a theoretical work on language. So you’ve got to come into this one with some flexibility.

The evidence includes the following:

  1. Evidence of drafting practices—Wurman relies on the results from a question in Bressman and Gluck’s survey (“B-G Survey”) of congressional drafters from a decade ago.
  2. Theoretical work on ordinary language—Wurman relies on the work of Ryan Doerfler, whose paper, High-Stakes Interpretation, discussed the role that importance can play in ordinary conversation.
  3. The mischief rule—in a move that should be familiar to readers of the blog, Wurman argues that the MQD might serve a similar function to the mischief rule.
  4. Historical evidence—Wurman points to the Necessary and Proper Clause, agency law, contract law, and the historical work of Louis Capozzi.

Personally, most of this evidence is not for me because of various methodological commitments and my own assessment of the evidence.

Wednesday, March 29, 2023

Dean Jiang Huiling (蒋惠岭) on the Last 10 Years of Judicial Reform | Supreme People's Court Monitor



Dean Jiang Huiling (蒋惠岭) on the Last 10 Years of Judicial Reform | Supreme People's Court Monitor
By Susan Finder

As the readers of this blog know, Tongji University Law School Dean Jiang Huiling worked at the Supreme People’s Court for over 30 years, and for over 25 of those years, he was involved in judicial reform. He has the most comprehensive and deep understanding of the importance, challenges, and multiple implications of reforming China’s court system.

On 11 January 2023, Dean Jiang spoke on the last 10 years of judicial reform to my judicial reform class at the School of Transnational Law, colleagues and students from Tongji University, and some other visitors.  This very delayed blogpost summarizes his presentation and responses to questions from the audience. The references to “we” in the summary are his, as are the unattributed quotations.

Presentation Outline

A. Roadmap of [the last ]10 Years of Judicial Reform
B. Four Fundamental Reforms
C. Judicial Organizations Reform
D. Procedural Justice Reform
E. Diversified Dispute Resolution
F. Judicial Democracy

G. Other Reforms

H. General Observations

A. Roadmap of Chinese Judicial Reform

The focus of his presentation was the last ten years of judicial reform (2013-2023), which included two five-year judicial reform plans. He first provided some historical background to the most recent two judicial reform plans, speaking about earlier judicial reform plans from a participant’s perspective.

1. Earlier judicial reform plans

Many Chinese scholars and some foreign scholars consider that those earlier ones were working method reforms, focusing on efficiency and other matters-they say is it not real judicial reform. He disagrees but says that it was only with the reforms of the last 10 years that structural (radical) reforms were made.

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Friday, March 24, 2023

Rule by Injunction?



Enforcement of Equitable Decrees 

The rule of thumb distinction between law and equity is that equity is in personam relief.  In the law courts monetary damages is the archetypical remed.  In the equity tradition the person is the object of justice.

A fundamental problem in  law is the primacy of positive, written law. Every system struggles with the   the tension between norms and commands.  In Chinese law Fa 法鲁 contends with 礼 Li - custom or norm. In religions of the book the Torah, the Gospels, the Quran all present themselves as the words of God or the agents of God.  But commands are often so broad (thou shalt not kill) that every system must elaborate its teaching on how to apply the general principles to particular situations.  In the Catholic tradition this is the product of revelation, the teaching of the magisterium, and the experience of the faithful.  In our tradition original understanding contends with the application of generalities such as due process, cruel and unusual punishment, equal protection, and the right to bear arms.

In England the law developed as a struggle between the middle class who emphasized free choice and the landed who emphasized the right to unfettered control of property.  The middle class developed law as the product of contract, and statute.  The prerogatives of the sovereign - in whose person power resided - combined with the sovereign's arrogation of the role of head of the Church.  The province of the Chancellor therefore was law adapted to the needs of the person, rather than enforcement of contract or the commands of written law.  

Because the sovereign also claimed authority over the entire realm the public interest also prevailed over the prerogatives of petitioners and respondents.  The remedial focus of chancery - the equity tradition - thus was in tension between the person and the interests of the public.  We see this now in the conventional locus of equitable remedies as "in personam" rather than "in rem".  Our system has, thus, replicated the inherent problem of subjectivity vs. objectivity - of individualized personal relief vs. the power and rigidity of the written word.   When either fails the law turns to the other.

The merchants and landowners who created the U.S. system were united in their resentment of the government of England - in which they had no say - they were uniquely resentful and subject to the sovereign King of England.  They therefore separated the judges from the executive (the Magistrate) and consolidated both Law and equity" in the hands of the judiciary in Article III of the Constitution.  Judges were doubly insulated from any leveling impulse or direct factional control by confirmation by the Senate (members selected by state Legislators not voters) and by life tenure during good behaviour.

But unified judicial authority proved deeply problematic.  The Supreme Court barred Maryland from burdening the national bank, and Pennsylvania from protecting the many fugitive slaves who entered from Maryland and Virginia. Ultimately the Supreme Court allied even more decisively with the slaveholders as Congress expanded slaveholding both north and west.  Civil War followed. 

Despite  the  post civil war 13th, 14th, and 15th Amendments to the national Constitution the Supreme Court deployed its power under Article III to limit the 14th Amendment's promises of equal protection and due process.  It left the states free to keep women in subordination, and to strip African Americans of the protections and citizenship rights promised. 



But as the nation was transformed by conquest into a continental power deference to state power proved problematic.  This was most dramatically exemplified by the passivity of the states and local governments when an emerging labor union - the American Railway Union - struck the Pullman Sleeping car company and crippled the interstate rail system by refusing to serve any train that carried its passengers.

In an unprecedented move the United States Department of Justice in In re Eugene Debs v. United States (1895,) citing the federal power to regulate interstate commerce, assumed the law enforcement role of state and local police and courts.   The Attorney General without statutory or substantial precedential support obtained an order barring the solidarity strike, jailing the Union's leader Eugene Debs, and deputizing thousands of men employed by the Pinkerton Company to block the picket lines formed by striking rail workers. 

In  the forty years that followed, as the trade union movement grew in size and importance the Supreme Court sanctioned the use of the anti-strike injunction and blocked states from passing laws to limit hours of labor and conditions of employment. The archetypal exercise of such power was in Lochner v. New York (1905).  Citing what Marx once called "that single, unconscionable freedom" - that of contract, the Supreme Court struck down a New York law limiting bakers hours of work to 60 per week.  That violated the Due Process clause of the 14th Amendment which protected  freedom of contact, according to the Court in its epochal decision.



The Lochner era would end only in the mid-1930s after the 1932 passage of the Norris LaGuardia Act which stripped the courts of jurisdiction to issue anti-strike injunctions .  In 1935 the National Labor Relations Act protected the right of workers in private industry to form unions, to strike, and engage in other kinds of "concerted activity". In 1938 the Court in Carolene Products declared that measures addressed to the public health and welfare would be subject only to "rational basis"" review by the Courts of the United States.


- GWC March 24, 2023


NIH Study: U.S. Stillbirth Rate “Unacceptably High” — ProPublica

NIH Study: U.S. Stillbirth Rate “Unacceptably High” — ProPublica

Federal officials have released a bleak assessment of the country’s progress in understanding and preventing stillbirths, calling the rate “unacceptably high” and issuing a series of recommendations to reduce it through research and prevention.

The National Institutes of Health report, titled “Working to Address the Tragedy of Stillbirth,” mirrored findings of an investigation by ProPublica last year into the U.S. stillbirth crisis, in which more than 20,000 pregnancies every year are lost at 20 weeks or more and the expected baby is born dead.

ProPublica’s reporting found that a number of factors contributed to the nation’s failure to bring down the stillbirth rate: medical professionals dismissing the concerns of their pregnant patients, a lack of research and data, and too few autopsies being performed. Additionally, alarming racial disparities in stillbirth rates have compounded the crisis.

“The extent of the problem is massive,” said Dr. Lucky Jain, who served as co-chair of the Stillbirth Working Group of the Eunice Kennedy Shriver National Institute of Child Health and Human Development Council, which issued the report last week. “All of my life, I have maintained that what I cannot measure, I cannot improve. And so if I don’t have proper data, records, autopsy findings, genetics, the background information of why a fully formed baby died suddenly, how do I even begin improving things as a scientist?”