Bartlett's fodder:

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Not everything said in a reasonable tone of voice involves the use of reason. 

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The problem faced by a country, no names, no pack-drill, is never that there is just one craven and greedy person doing bad things.  In fact, the degree to which it is commonly thought that it involves just one bad person like that is some sign of how common the condition might be.

 

(The reason this case is so important is that it likely will define the way that the courts will interact with the sweeping changes in government announced already, and those perhaps shortly to come.  All of the actions currently percolating through the courts will be shaped by what happens here.)

I haven't been following this, but just based on a few hours of eavesdropping--there's perhaps a category error in the argument's reading of history.  The usual question is whether the equitable remedy existed in UK equity practice at the founding.  But the question of whether a claim sounds in law or equity is distinct from this, and requires some imagination, since the two have been unified in the interval.  

A claim sounding in law (or constitutional law) can have an equitable remedy, possibly binding those involved in the action; a claim sounding in equity at the time of the claim (e.g., one seeking a universal injunction, without statutory basis, as the ultimate remedy) arguably should be subject to the traditional common-law limitations on equity jurisdiction.

Extremely important argument happening in DC at the moment.

Say a cabinet member walks into a university lecture hall and strikes a left-leaning professor with a baseball bat, claiming it to be a legal act.  Litigation ensues, and the federal circuit court upholds the district court's holding that such things are illegal.  Then, in a different part of the country, another member of the cabinet (and also a former television commentator) does the same.  The question then becomes how to enforce the rule of law without these suits proceeding seriatum.

The present tactic is a tool of equity, the general injunction.  Assume that goes away, due to historical abuse, under the principle that equitable remedies are not available where there is a remedy at law.  If you have a government dedicated to lawfare, willing to survive any number of lawsuits as they continue to practice their unorthodox means of governance, how to maintain the rule of law?

First, the argument that constitutionally, under Article III, judgments can only bind the parties before them. This seems to contravene the equity powers granted the courts under the findings, and further, would prevent Congress from further modifying the jurisdiction of the appellate courts. 

Second, the notion that a statutory class action could solve the problem.  This seems an unwieldy tool, as it would require an institutional solution to every disputed claim; individual judgments would become hard to obtain, and thought useless.

Clearly, there has to be a solution in which, when a court says what the law is, it has some effect on the practices of the government.  In the baseball-bat scenario, it would be good law in that first circuit that the government couldn't do that, and subsequent actions would awaken the usual tools -- constitutional tort claims against state actors, contempt sanctions, mandamus (the elephant in the room, perhaps), etc.  Outside the circuit, a plaintiff might have to file suit, and arguably that's appropriate, in order to keep the boundaries of these percolating laboratories of democracy separate.  If it's different than the first holding, then certiorari can resolve.  If the same, then arguably a class action becomes a good tool if the government continues to maintain its practices outside of those circuits.

Alternately, filing suit at the seat of government could address the policymaking; jurisdiction over the cabinet member in their capacity in government should resolve the agency's practice.  This is a more costly proposition in terms of the courts' power -- commanding the head of a cabinet agency to do something requires power, and costs influence.  

Ultimately, making individual district judges the default backstop against flagrantly unconstitutional actions of the executive bats the bottom of your lineup card against the strongest forces of the adversary.  Within the districts, the orders hold, and the power is proportionally balanced.  Seeking a remedy in equity to bind the entire national government is a peculiar thing to have evolved in time, in that remedies in law are available, such as individual suits that write law for the states, circuits, or boroughs; suits against the agencies at the seat of government; or class actions defined by Congress.  (Even where the relief is equitable in nature, the claim sounds in law, not equity, if you mentally piece the benches back together to consider the question.)  

Top of the head, while listening to the argument in the middle of the mountains of Transylvania.  Not advice, don't rely.

 

So King Arthur had ever a custome, that at the high feast of Pentecost especially, afore al other high feasts in the yeare, he would not goe that day to meat unti lhe had heard or seene some great adventure or mervaile. And for that custom all manner of strange adventures came before King Arthur at that feast afore all other feasts'

Malory (in Chambers)

The unpleasantness of that evening at R&J about a week ago is still with me. I've enjoyed the Szecheny baths both times I've visited, and Shakespeare is very close to me.  But the attempt to create an experience that blended the two made for a very unpleasant evening.  

Theatre is cognate with theory.  It means point of view on the action.  Gadamer tells the story well.  You come to the ritual at Athens from a particular place, and that determines your vantage.  The Romans, with their fondness for wild beasts, sea-battles, etc., destroyed this by making the theatre immersive--they turned it into a circle. Since there was then no angle of skene, of presentation, the play and the audience no longer faced each other.  (Amphitheatre literally means doubled theatre.)  

And discomfort is different than being in a bad place; we're talking here about the latter.  I've sat in an uncomfortable posture on the floor through an all-night Taverner concert (in the presence of the composer, who rightly had a comfortable chair); I've stood in sunlight through a long play; I've sat on benches through long outdoor dramas and stood at the back of the house through a Ring Cycle.  But in all of these cases, that was my angle on the action.  I had come to that place, and found that position as the only or logical vantage.  To be surrounded by an unpleasant event, particularly when you care about theatre, makes the evening very long, and tends to stay with the mind.  It's certainly far from the worst in terms of regietheatre, and the playing was skillful.  But the event was wrong.  The room was wrong.  (I can't say the play was wrong, because we weren't face to face.)

I seem to be able to summon an inordinate amount of mind-numbing material through the transom when I set myself to return to the early mornings and start to lay the foundations of some deeper work in the afternoon.  Putting a bit of a seal on the transom--can't be for too long, as that's also how the food gets in.

A shared world constituted by the prevailing appearances of things, and not conscious, either privately or collectively, of the falsity of the prevailing appearances of things is ultimately a false shared world.  Kant proposes a conceptual realism that accepts appearances as veridical, in that they are all that we ever can have, but this is necessarily paired with an awareness that the thing itself eludes us.  Take either proposition without the other, and it's simply a sanction for solipsism or authoritarianism.

One doesn't realize this until one spends some times with people and institutions and realize that they entirely consist of trying to be what they appear to be.  It would be much better for both if they would try to be that which they didn't yet understand.

Things are seldom what they seem;

Skim milk masquerades as cream.

 

 The corporate (brudderschaft refined?) approach now apparently greasing the mechanisms of international diplomacy courtesy of the administration from New Amsterdam can be very effective.  I wonder if the recent events in Yemen and Turkey might be the fruits of gears spinning sub silento, while the domestic agenda is captive to ludicrous things like the personal gift of a (flying) palace to the president by a foreign state.  This sort of governance can be effective, because effectiveness, as with the Norman pirates arriving on British soil, is the reason for the existence of these forms. 

But once the specific objectives have been achieved (and the losing side in the second really-big war was quite an effective state at first, using much the same commerce-focused policymaking toolkit), one is still faced with the almost immeasurably larger questions of general governance.

Will the "Laws of the Confessor" survive?

 This is sort of a sidelight for me, not one of the things I spend too much time on, but perhaps a useful fragment of popular general ontology:  

Baudrillard's hyperreality (basis for the Matrix films) is a useful concept, but you do have to decide to use it.  And this reaches the explanation of why the Matrix scenario might in fact presently be the case.  Allons-y.  We see, empirically that the the mediated hyperreality, the sense of the world through stimuli conveyed by electronic devices, is a physical reality.  That sort of thing is happening.  Everyone's looking at their telephones. We assume that this is an inflection of actual reality, that it highlights certain aspects of given experience [cf. Sellars].  But what if the sense of the way things are that we receive from this παιδα is constitutive, not regulative?  What if it constructs the understanding that then encounters the world of unmediated sensory experience, causing that world to be grounded in the ultimate reality conveyed by the machine?  As proof for that notion, consider that a young or naive person, when looking for meaning, usually looks according to the gestalt -- when trying to be meaningful, we look to the more emphasized aspects of hyperreality, and along the lines indicated the culture, usually because we've been affected by some fragment of the culture -- a book, a movie, a play.  These notions are more deeply held; this is where emphasis meets affect.

So, if this is the case, we ground our experience in the day-to-day world upon the hyperreality, instead of vice versa.  Sensory data fleshes out the picture that is rooted in the meaningful moments that we've received.  Further, to distinguish "actual" reality, we actively mask this grounding by constantly convincing ourselves that we are in the real, unmediated world, and that our understanding is constructed according to naive experience.  But we are living in the given world. And this comes into focus when we act, when we actively seek to get meaning from experience, or, to put it in the old language, when we live according to our beliefs.

I'm wondering if I should just launch into something.  Rather than doing this piecemeal annotation, working through the texts.  (Which, I should note, I'm doing quite a bit of.)  Along the lines of the contemplated work in Murdoch's Book and the Brotherhood.  Just launch into that one big thing.  But it's a bit like deciding to build a rocket while travelling between cities.  One does need a place, a stable manufacturing base, a decent library and some stability of life.  Else, you'll just make a rather large wobbly thing that bespeaks the circumstances of its creation more than anything else. 

The winter was a bit rough, and I'm basically back from that.  And working in the panopticon, in which someone trying to sell me something is probably noting absolutely every text I call up on screen is a bit unnerving.  I sort of prefer not to have people reading over my shoulder, even if they are just an algorithm.  

Time will tell.  Likely after I finish the half-dozen books in the immediate queue.  When you set out on this sort of a peregrination, you sort of put the larger projects in a mental steamer trunk for safekeeping.  The wobbliness of travel can put a good idea permanently off-center.   Trees grow to the light, even when the sun's going in circles due to the elliptic of the travels.

Time will tell.

Perhaps I should be more discreet with these thoughts about thinking and working.  When one is marooned, and manages to create some aspect of utopia on the island using the bare materials at hand, the distant courts and palaces tend to send raiding missions rather than rescue missions.  Rogue Gonzalos must not remain unwatched.

Gently down the stream. 

Pace Jacobi, Kant was directing our attention specifically to that which we could not perceive, and setting up a system for thinking about it, so that we wouldn't forget that we couldn't perceive it.  It's a feature, not a bug.  If you ever forget that you don't really understand, the time will have you.  

No one seems to have made this argument, which is puzzling.

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Reading Peirce.  An offhand mention: time as identical with inner experience, and space as identical with external experience.  I don't know that the association has ever occurred to me as identity. But perhaps that's just another one of the thoughts out there that's well-known and new to me.  Every thought has its time.