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My recent reading includes the book AMARNA SUNSET (2018), by Egyptologist Aidan Dodson.

It is about the demise of ancient Egypt's 18th dynasty, the dynasty famous for the heresies of Pharaoh Akhenaten, who gets credit (or blame) for the creation of monotheism.

Akhenaten was featured in Sigmund Freud's last book, MOSES AND MONOTHEISM (1939). Freud posits that the historical Moses was a devotee of Akhenaten, and that he and the other loyalists were exiled from Egypt after his hero's death, and followers of the older polytheism restored their own power and their gods. That was the origin of Judaism, on this view.

There is much more to Freud's theory, and of course he brought psychoanalysis into the picture. He believed that the reason Moses didn't reach the promised land was that he was murdered, as an oppressive father figure, and that after he was murdered the memory of that dark deed was buried in the unconscious of the perpetrated, taking the form of exaggerated reverence for the decedent. That stuff is appropriately ignored by contemporary archeologists. But as to the origin of monotheism, and the real-life equivalent of the biblical exodus, there is some reason to believe Freud got a lot of that right.

The most famous names in ancient Egypt's history are associated with the 18th dynasty. It appears that Akhanaten's Queen was Nefertiti, and their sun was Tut. So far as we can tell, through the fog of history and subsequent attempts by the "counter-reformation" to bury the truth about the Amarna period. Tut died in his teenaged years -- he was probably NOT murdered, though that has been  persistent view. It isn't at all clear what happened to Nefertiti after the deaths of her husband and son. But the counter-reformation prevailed, the old polytheism was restored, and the capital was moved south back to Thebes, so that Amarna could be covered over with sand.

None of this is all that new. It is the background against which Dodson writes. I'll say something about Dodson's specific contributions to the study of the end of the 18th dynasty, the sunset at Amarna, at a later time.
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“Can anything be stupider than that a man has the right to kill me because he lives on the other side of a river and his ruler has a quarrel with mine, though I have not quarrelled with him?” - Blaise Pascal

No, Blaise, nothing can be stupider than that. Indeed, I think it is safe to say that the human race, in the centuries since your day, has found a variety of new ways to be stupid, and has improved its implementation of the way you mention, but hasn't founder any thing stupider. 

Nice triangle, by the way. 
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John Searle is no longer affiliated with the University of California, Berkeley. He has been stripped of his emeritus title.

This is quite a comedown since Searle's name regularly shows up on lists of the most prominent and influential philosophers writing today.

Let's review a little intellectual history. As of the late 1970s, the dominant view of consciousness, intelligence, and the mind-body relationship among professional philosophers in the Anglosphere was functionalism.  There was a lot of disagreement about the details, but mostly consensus on the big picture.

The idea was that the brain was a machine that functioned more or less like a digital computer. Or, at any rate, its functions could be indefinitely approximated by a digital computer. Thus, there was nothing fundamental (just irrelevant biological history) setting the brain aside from what algorithms embodied with wires and on/off gates can or will eventually be able to do.

Alan Turing had speculated about a "Turing test" for intelligence, which turned on the ability of an embodied program to carry on a conversation that would be indistinguishable (from the PoV of a human being) from a conversation he might have with another human being. The embodied programs that could do this would be functioning intelligently, thus they would BE intelligent in a full sense of the world.

Turing's 1940s computers were good for helping the Allies hunt German U-boats, but nobody would have tried to discuss metaphysical poetry with one of them.

My point, though: the functionalist view grew in strength throughout the post-war period and was quite firmly ensconced by the late 1970s. Then came Searle, and the "Chinese room" thought experiment first published in 1980, and the subject of vigorous dispute in the following years. I won't go into the particulars of that thought experiment here -- they are easy to find it you want to pursue that point. I'll cut to the chase.

Although Searle didn't kill functionalism he did bring an end to its dominance. Presently the dominant view of mind/body questions is a form of property dualism, combined with ontological monism. This means, briefly, that philosophers now generally regard the (biological) brain and the conscious intelligent mind as the same fact in the world (monism), but they explain that this fact has at least two distinct sorts of property -- the mental and the physical.  Further, there is great doubt as to whether the "Turing test" tells us anything at all about whether certain physical objects possess the mental set of properties.  The new view, on behalf of which functionalism is often rejected, is called "property dualism" sometimes, and "emergentism" at other times. in other contexts.

I think the change-over from functionalism to emergentism is a healthy one (though I don't unqualifiedly endorse it). And I credit Searle for producing it. So naturally I am saddened by his downfall as the result of his apparent violation of UCal sexual harassment policies.


http://dailynous.com/2019/06/21/searle-found-violated-sexual-harassment-policies/?fbclid=IwAR07dgwGRR-IA-6XQKV5fGyK4GKQZyc7vJ0J3Kn8HF68q-1Ex4S4gwp7G3A

Will this bring back functionalism? No: fortunately it doesn't work that way.

And it wasn't ALL Searle. Another important contributor to the decline of functionalism was Frank Jackson. In his argument, too, there was a critical thought experiment: Mary's Room. Of Jackson, and of Mary, I will write another time.
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So ...

 here's a thought.

Three classic Greeks walk into a bar.

The bartender, Heraclitus, recognizes Thales and of course pours him a glass of water, because water is everything.

Then he recognizes Zeno and said: "Aha! so motion must be logically possible even if your path into this bar was infinitely divisible."

But he doesn't recognize the third fellow and he says to Zeno "Who's your friend?"

"Euripides."
"I didn't rippa those tunics, you guys must have ripped them yourselves!"
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The court this term went in different directions on the two sorts of gerrymandering.

It may have finally closed out its long history of fiddling around the matter of "partisan gerrymandering," by deciding that it doesn't possess and cannot fashion the tools to deal with that.

I'm reminded somewhat of the "shopping malls as public forums" cases in the 1960s and into the '70s. The idea was that malls, though privately owned, were functionally public places, so people have first amendment rights there. Even the Warren Court was hesitant about this, but the hesitancy seemed to make the subject cutting edge/intellectually stimulating. Eventually, though, the Burger court decided the idea had been a bad one, and backed far away.  The Roberts court has now done much the same with partisan gerrymandering in Rucho v. Common Cause. 

But a couple of weeks earlier, the court had decided Virginia House of Delegates v Bethune, a case that seems to indicate that there is still life in the charge that legislators are drawing lines based on race, to preserve the premium value of whiteness.

The Court did this is an indirect procedural way, but still ... the thing was done. The issue of the proper remedies for racial gerrymandering remains very much on the judicial agenda.

Church and State

Law on the establishment clause is changing at a great pace. What shape it will take in, say, another ten years is utterly beyond my ken.

Near the end of this last term, SCOTUS sharply cut back on the doctrinal work that the Lemon test is supposed to do in Church-State issues. The Lemon test, for decades, has instructed judges that a government action that on its face involves religious institutions or symbols violates the COTUS unless it (a) has a secular purpose, (b) neither inhibits nor advances religion, and (c) does not foster an excessive entanglement between church and state. This test has been subject to a lot of criticism, [and I have done some of the criticizing myself.] But it has been the law.

Now, in its deliberations regarding the AMERICAN LEGION case, the Supreme Court seems to have considered simply erasing the Lemon test: considered is a key words there, it backed away from erasure. In a decision by Justice Samuel Alito, the court said that the tripartite test just described does not apply to "established, religiously expressive monuments, symbols and practices." Such as the maintenance of large crosses on public land. Lemon might still apply to some other types of case, but not to that type.

Under the heading of "free exercise of religion," SCOTUS also looked this term at the right of religiously motivated bakers to refuse services to same-sex couples. This time the underlying incident arose in Oregon, last session it had come to them from Colorado. This time the Court returned ("remanded") the case to the lower courts and said in essence, "read our decision in the Colorado matter and look at this one again. "

But the Colorado case in essence evaded the question of principle in procedural-ish grounds that may not apply here, so this doesn't mean much other than "we can't decide this right now, so go home and leave us alone."

All of this is an unsustainable muddle so I am sure it will look very different in ten years but I have no idea whether it will by then have reached some equilibrium or, if it has, what that will look like. I am reminded of the old Chinese curse, "may you live in interesting times."

Tennessee Wine and Spirits

In the rush of end-term business, too, the Court struck down a Tennessee law imposing durational-residency requirements on anyone who wants to operate a retail liquor store. Under standard "dormant commerce clause" doctrine, emerging in recent decades from a line of precedent going back to Justice John Marshall and the steamships ferrying people across the Hudson River in the early days of the republic, a state law that discriminates against out-of-state goods or non-resident economic actors must be struck down in the absence of a showing that the law advances a legitimate local purpose and is narrowly tailored to achieve that purpose.

Protecting local businesses against competition from out of state is NOT a legitimate local purpose.

The health and safety of locals is a legitimate local purpose, but the residency requirement has as the decision puts it "at best a highly attenuated relationship to public health or safety..."  So the regulation has to go.

It is good to see an agreement that strikes me an unambiguously sensible out of this court now and then, and this is one.

Puerto Rico: A Decision to Decide

My final thought about this Session is that it is well the high court has agreed to hear a dispute on the constitutionality of the Puerto Rico restructuring board.

Specifically, it has agreed to review a 1st circuit decision that the process by which the members of the board that oversees the reorganization of Puerto Rico's debts were appointed, is unconstitutional.

Recently, the top 20 of the candidates for the Presidential nomination of the Democratic Party held a debate over two evenings, a total of four televised hours. They discussed a lot of topics. But as some observers thereafter noted, there was almost no mention of Puerto Rico at all Julian Castro mentioned it in an autobiographical aside. That was it.

Why is this surprising? [They probably didn't mention Wyoming much either, after all.] Well, it is surprising because there are a number of respects in which Puerto Rico might logically have come up. For example, the Commonwealth's power grid needs a lot of rebuilding, and this might well provide a test case of both political parties' professed commitment to "infrastructure" as an issue. And the island is regularly in the path of hurricanes, so it is an inkblot in which a candidate can see his/her own ideas about climate change.  

But perhaps the best reason the Puerto Rico MIGHT have come up is this: it faces a huge debt crisis and a consequent need for financial restructuring. It is an extreme case of a situation that is also true of a number of US cities.

Perhaps some will find it reassuring that there is one branch of the federal government, the judiciary, that is trying to work through related issues systematically. And with that note of purely hypothetical reassurance I will close this year's SCOTUS review from Jamesian Philosophy Refreshed.
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This is the third in our four part discussion of the Supreme Court's October 2018 term, recently concluded.

It has been a big year for the constitutional treatment of the criminal justice system, and we'll deal with four cases in that line here. We will ignore others that might have fit this theme, among them Gundy v. US (where the Court passed over an attempt to reinvigorate the nondelegation doctrine in this area) and Mitchell v. Wisconsin (involving a blood alcohol test on an unconscious..
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The US Supreme Court decided three cases this term that speak to the issue of mandatory arbitration clauses. Two of them arose in the context of employment.

The "odd case out" here, a piece of commercial arbitration between two businesses, came down on January 8, when SCOTUS announced its opinion in Henry Schein v. Archer. This was a unanimous opinion saying that there is no "wholly groundless" exception to the general rule that the arbitrator gets to decide the threshold question of arbitrability.

Henry Schein arose out of a dispute between a business that distributes dental equipment and one that manufactures such equipment. I mention this -- indeed I mention the case itself, chiefly to encourage reflection over a sort of knee-jerk reaction one encounters to employment arb cases. "Oh, there is such a gross disparity of bargaining power here! The employer needed a job and signed the contract of adhesion they put in front of him to get it!"

I'm not sure that such a reaction can ever be refined to the level where it would become a reasoned argument. Consider the relationship between a distributor and a manufacturer of dental equipment Ignorant of the market for such equipment (as most judges presumably are) I have no idea which party if either has the upper hand in negotiations. Even if the metric for that could be specified, it would have to call for a fact based inquiry of a sort which would leave no precedential footprint because, by the time the next litigation has arisen, the same industry might have been utterly transformed.

Back to SCOTUS ... Just one week after Henry Schein SCOTUS came up with New Prime v. Oliveira, deciding that it is the courts, not the arbitrators themselves, who must decide the threshold of arbitrability in certain labor cases. The statute, the Federal Arbitration Act, is clear that mandatory arb does not apply to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

Dominic Oliveira filed a class action claiming that he and other truck drivers were being cheated by the trucking companies. The companies claimed the matter belonged in arbitration. Oliviera said: no it doesn't , I'm a trucker, which makes me a "worker engaged in" etc. New Prime said, "Tell it to the arbitrator -- if he agrees with you the matter is not arbitrable, THEN you get to go to a judge."

The highest judges in the system said: no, the judges decide this one, and we're deciding it in Oliveira's favor: his class action can proceed. This was a unanimous decision, 8-0 with Kavanaugh not participating because he hadn't been around for the argument. Gorsuch wrote the decision.

The final SCOTUS treatment of arbitration issues this term was decided three months later, April 24: Lamps Plus v. Varela.  Although the two cases referenced above gave us unanimous decisions, this one gave us one of those 5-4 splits everyone talks about, and three passionately worded dissents.

Lamps Plus is part of a line of cases addressed to the distinction between class and individual arbitration. It says that a employer can only be forced into class arbitration if the language of the employment agreement clearly provides for class arbitration -- otherwise individual arb applies. This is striking as a departure from the usual common law rule that ambiguities are interpreted against the drafter.

I'm a fan of the common law rules of contract construction -- they generally arose for good reason -- and consider this departure an unfortunate one.

What is intriguing about Lamps Plus is the factual context. This arose out of a hack attack on an employer that made public data concerning the taxes of roughly  1,300 employees. A stranger then fraudulently filed a tax return claiming to be "Frank Varela," one of those employees, and so to be entitled to a tax refund. Varela, understandably, sued his employer for having allowed his identity to be stolen. There were then two distinct threshold questions: first, litigation or arbitration? second, if arbitration, class or individual? The courts below had said that the employer won on the first of those binary questions, lost on the second, paving the way for class arb. SCOTUS has now reversed this, and it appears the matter is now headed for individual arb.

Ideally, that would be 1,300 individual arbs. That might give Lamps' management a sense of the value of class treatment.
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Once again I pick up a weighty mantle and place it upon my willing shoulders -- I will again review for you, my beloved readers, the term of the US Supreme Court just passed.

This one will be remembered as the term that began with credible rape allegations against President Trump's nominee for an open position on the court, and that ended at about the same time a woman was publishing credible accusations of rape by President Trump himself.

It is perhaps weirdly appropriate then that this term, more than other recent terms, has been concerned with issues of the constitutional questions raised by criminal procedure. We'll get to some of them Saturday.

This term, too, began with a sense in many quarters that a fatal balance had been tipped. With Kavanaugh, there are now two Justices appointed by Donald Trump, who presumably are inclined to combine with the three who were appointed by one or another of the Presidents Bush. That adds up to five votes.

But Supreme Court decisions don't really break down along the lines one might imagine from the appointing President.  We'll start our review, today, with two examples of just that point.

Tomorrow, we'll move to some important issues of statutory interpretation. Among other matters, we will concern ourselves with the issue of compulsory arbitration as a means by which corporations limit their exposure to the judicial system, and by which the judicial system accepts and enforces that  -- this term, that broad issue is instantiated in the cases of Lamps Plus and New Prime.

New Prime, as it happens, was a (nowadays rare) win for the opponents of compulsory arbitration. Lamps Plus had some unusual twists for this sort of decision. It involved hacking, and a claim about employer liability for the loss of employee privacy to a third party hacker. But we'll get to all that in due course.

Our Saturday, as I've mentioned, will be about criminal procedure and the constitution. This year SCOTUS faced important capital punishment challenges, issues concerning excessive fines, and the range of the constitution;'s protection for one's right to trial by jury.

Finally, Sunday we have an end-of-term potpourri. We'll say something about Church/State issues, the intersection of liquor laws with the commerce clause, and gerrymandering both racial and partisan.

So, let's get underway!

United States v. Davis

One of the flurry of final cases settled this term involved a federal law that imposes harsh penalties on offenders who use a gun in a "crime of violence" and that defines a crime of violence as a crime that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

What does this mean? Suppose I customarily carry a gun, because I take the Second Amendment as holy writ and no gummint type is gunna tell me not to: darn it. Also while I have the gun on me (as I always do) I commit fraud. I forge documents necessary to persuade a sucker to hand over a lot of money to me. Forgery is a non-violent activity and we will suppose the exchange of money for the documents goes off without a hitch, and so without violence. But I had a gun with me. Does that earn me an extra twenty years on my sentence? 

The prosecution could argue that there was the "substantial risk" my mark would figure out the document was forged, would become enraged, and that in the altercation that followed I would make use of my gun. Because there was this risk, my crime was a "crime of violence." But through such reasoning, one might as well say that any crime committed by anyone who has a gun at the time would be a "crime of violence," and all that "substantial risk" language becomes superfluous.

At any rate, the Supreme Court ruled in favor of the defendant; it decided that the "crime of violence" language is unconstitutionally vague and thus void. This was a 5-4 decision. A Trump appointee joined the two Clinton and the two Obama appointees to make the five. That Trump appointee was Neil Gorsuch, who wrote for the majority.

Our boy Kavanaugh wrote in dissent -- for himself, Thomas, Alito, and Roberts.

Just one quote from each of the two Trump appointees will do for now. Gorsuch, for the court, said: "Vague laws ... undermine the Constitution’s separation of powers and the democratic selfgovernance it aims to protect. Only the people’s elected representatives in the legislature are authorized to 'make an act a crime. United States v. Hudson, 7 Cranch 32, 34 (1812). Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide. See Kolender v. Lawson, 461 U. S. 352, 3."

Kavanaugh replied by quoting a lot of statutes that use the phrase "substantial risk" in very different contexts and arguing that it is too much to believe that all of these statutes, federal and state, are void for vagueness, so that two word phrase should be considered tolerably clear. Or I think that's what he is saying. Gorsuch has by far the better of the exchange.

Apple v. Pepper


The big antitrust decision by the US Supreme Court this term is APPLE v. PEPPER. 
Robert Pepper was one of four iPhone owners who became plaintiffs here. They claimed that Apple had engaged in monopolistic practices in the aftermarket for iPhone apps. Pepper's direct transaction was with Apple, NOT with the app developer, though the app developers set the price of their products.
Apple claimed that Pepper's lawsuit should not be allowed to proceed, because there are precedents that limit which private parties can bring antitrust lawsuits, and Pepper is on the wrong side of those precedents. The contentions are complicated, but I won't get into the weeds with them here.
If any case should have pitted Democratic Presidential appointees against Republican appointees on clean lines, this would have been it. From a Dem point of view -- it is a large corporation's effort to shield itself from liability to the little guy. Hurrah for the little guy! From a Rep point of view -- it is an effort by ambulance-chasing trial lawyers to distort the law for their own contingency fees. Boo to the trial lawyers!
Yet APPLE v. PEPPER was decided 5 - 4 -- the 'Dem' way. To be clear, this is an early stage of the proceedings and SCOTUS is not holding that Apple is an illegal monopolist. But what it is holding is that the proceedings can continue, Pepper is entitled to bring them and to be heard.
How did the Dem side manage to win this one? Credit the junior Justice, Trump appointee Brett Kavanaugh. He not only voted along with the two Clinton appointees (Ginsburg and Breyer) and the two Obama appointees (Kagan and Sotomayor) giving them their majority -- again, he wrote the decision.
What does this prove? First, that even politically polarizing cases don't always go the way one would predict. And that when one or the other of the two Trumpets go with the 'liberals,' it can be either of them.



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I gather there was an important 2005 decision of the US Supreme Court regarding the internet.

With my usual promptness I'm kind of catching up with it 14 years later/

Yes, the tech has changed a lot in 14 years, but the changes have made the decision more important, not less. They have raised issues such as how the decision applies to new unexpected variants of internet use.

The gist of it is that the Supreme Court, in an opinion by Justice Thomas, upheld a decision by the FCC that cable companies that sell broadband internet services do NOT provide a telecommunications service as defined by the Communications Act of 1934. [Mark THAT date.]

I'm just laying down a marker. I'll have to come back to the subject.

https://casetext.com/case/national-cable-telecommunications-assn-v-brand-x-internet-services-4
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"Cautiously one can say this: The attempt to understand the quantum theoretical description of the individual systems leads to unnatural theoretical interpretations, which immediately become unnecessary if one accepts the view that the description refers to the system as a whole and not to the individual system. The whole approach to avoid 'physical-real' becomes superfluous. However, there is a simple physiological reason why this obvious interpretation is avoided. If statistical quantum theory does not pretend to describe completely the individual system (and its temporal sequence), then it seems inevitable to look elsewhere for a complete description of the individual system. It would be clear from the start that the elements of such a description within the conceptual scheme of the statistical quantum theory would not be included. With this, one would admit that in principle this scheme can not serve as the basis of theoretical physics.”

A. Einstein, Out of my later years. Phil Lib. New York 1950 Seite 498

That was one expression of Einstein's long hostility to the development of quantum theory. I'm sure I don't follow it. But what I think he is saying is a bit like something Wittgenstein once said.

Wittgenstein said that much of his philosophizing was intended as a ladder that could and should be kicked away when one has gotten to the higher altitude that it makes accessible. 

Einstein is allowing, if I understand him correctly, that quantum theory might be a useful ladder, despite its "unnatural theoretical descriptions," but he is expressing eagerness for the kicking away thereof.  
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