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Daily Archives: January 24, 2022
Are new headlights too bright? | Opinion | theprogressnews.com – Clearfield Progress
Posted: January 24, 2022 at 10:40 am
I mutter, I am sorry. But the victims never hear my apologies.
I mutter them while glancing into my rear-view mirror at the disappearing taillights of a vehicle that had been coming toward me a moment earlier, in the dark and in the rain.
Often too often, I think the headlights of that oncoming vehicle blind me.
He has his high-beams on! I growl. Not necessarily accurate.
I assume the oncoming driver is a guy. Thats a politically incorrect assumption these days.
I claim that the driver has his headlights actually switched to high beams.
But even on low beam, the much brighter headlights on some of todays vehicles force me to squint and panic as I cannot see clearly from behind my own steering wheel.
Several things are at work here. One is the cataracts on my eyes, not yet dense enough to require surgical removal.
That is a good thing because, since childhood, I have had a phobia about anybody doing anything near my eyes.
I would rather have a no-anesthesia root canal on a tooth than have a glaucoma test done by puffing air past my held-open eyelids and onto my eyeball.
So I have not yet had cataract surgery. That is one explanation for the nighttime glare problem while driving.
Another, I think, might have to do with headlight alignment. Back when cars were simpler (and clunkier), it was easy to realign three or four screws around the bezel of each headlight while shining the lights onto a garage wall at the appropriate height and breadth. But that re-aiming had to be done often, because those cars, e.g., my rusted-out 1956 Plymouth, rattled and shook everything loose, including headlights.
Today? The light housing is a giant one-piece monstrosity, costing hundreds of dollars to replace if damaged. It is much more stable but also more expensive. I have no idea how to realign new-vehicle headlights.
Headlight alignment should be checked as part of annual state inspections. But that is an entire year between checkups.
The headlights themselves, I think, are the third factor. Todays cats-eye designs and LED loops look snazzy. I have driven or ridden in a few of those vehicles. They do make the road ahead brighter for the driver.
But what about the driver of the oncoming vehicle?
In 50 years of having vehicles inspected, I have never had anyone question the aim of the headlights on my vehicles and I have driven some clunkers.
A friend recently recounted how oncoming headlights blinded him. Before his eyes could recover to see the road ahead, he hit a deer. He thinks he might have avoided the deer if he had not been blinded.
The oncoming driver probably did nothing wrong. How can most of us tell if our headlights are incorrectly aimed? Even if, after we buy a vehicle, we think its headlights are too bright, what are we going to do? Fords headlight modules do not fit Chevys cars, etc.
Who regulates the lights on new vehicles? Does the National Transportation Safety Board do that? Some governmental agencies release all sorts of data about vehicle safety in crashes. But what about vehicle headlights? Do we just trust the designers and their lust for sales and profits?
Sometimes, after I flick my headlights to bright and back to normal to suggest that the other drivers lights are on high beam, the oncoming driver flicks his own lights onto high beam, then back off. That shows me that I am mistaken in thinking that his lights are set at the high beam level. Happily, in the dark, I cannot discern how many fingers he is using to wave jovially at me.
I mutter my apology because just blinking my own headlights at the oncoming car does distract that driver a bit. I am distracted when that happens to me, justifiably or not.
This is not a widespread problem yet. Most vehicle headlights are no big problem to others, unless they are really misaligned due to a fender-bender, or the driver is a vehicular moron.
But some headlights do make me react in ways that are dangerous to me, to my passengers, and to other vehicles or pedestrians.
If we cant see, we cant drive safely.
Is this just a problem for one old guy? Not according to what I hear from friends though those friends are mostly other old guys or gals.
Maybe I do need to find a way to defeat my phobia and get my cataracts removed. If that will fix the headlight problem, Ill try it.
But if it doesnt fix the problem, if some of todays headlights really are unsafe, who does what about it?
Denny Bonavita is a former editor/publisher at newspapers in DuBois, Brookville, New Bethlehem and Warren. He lives near Brookville. Email: notniceman9@gmail.com
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Are new headlights too bright? | Opinion | theprogressnews.com - Clearfield Progress
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Clubhouse and the Fantasy of Sexual Violence Against Muslim Women – The Wire
Posted: at 10:40 am
Trigger warning: This article contains transcriptions of chats describing graphic sexual violence against women.
New Delhi: On January 17, 2022, a tweet featuring a video of a group of people talking with each other on the social media app ClubHouse, went viral. The subject of the discussion was Muslims Gals are More Beautiful Than Hindu Gals (Gals Opinion. (sic)
Below is a paraphrased transcription of the video. The content is highly offensive in nature.
An account by the name of Kira xD, was one of the moderators.
In the discussion, an account called Harsh says, In my opinion this topic is wrong, because at the end of the day, all Muslim girls are Hindu in the end. How can you compare?
A female account called Roma interjects approvingly, saying Ye baat (this) and another one says Jai Shri Ram.
Harsh continues, When we do ghar wapsi (conversion), when RSS bhakts like us take Muslim women, they will become Hindu women. Roma interjects to say that either way, 70% of all Muslims are converts.
Then comes the most provocative line. Harsh says, Did you know, that if we hit a Muslim pussy, our sins will be washed away? Has anyone else heard this? To which Kira xD, the moderator, replies, In the last panel, one guy said that if you are hitting a pink pussy, you will get the same blessings as building seven temples.
He follows up by asking, Id like to test this. Is there a Muslim woman here? Harsh interjects, saying, Kiraji, I have to correct you its not about 7 mandirs Babri todna itna punya milta hai (You get as many blessings as you would for destroying Babri)
Everyone in the group approves this vocally, but one pipes up saying that they are moving away from the subject that pink coochie is a priority. The account called Roma asks, Ek confusion hai Kira, you keep saying this again and again, Muslim pussy pink pussy is Indian, Hindu pussy not pink? To which the men unanimously respond, Nahi, woh kali hoti hai, kali kalooti (No, it is black, very black.)
In subsequent videos, the account Kira xD proceeded to outline a graphic scenario where he asked the group for aid in engaging in sexual congress with his mother, here being characterised as a Muslim woman. The conversation that follows can be viewed here:
After the video went viral, there was immediate outcry, with many calling for the arrest of those present in the group, equating them with mass rapists, saying they sounded like co-conspirators of the Bulli Bai app, and warning that it was the height of radicalisation.
The Delhi police lodged an FIR against the unknown perpetrators by the next day, with KPS Malhotra, DCP (Cyber Cell), saying an FIR has been registered under IPC sections 153A (promoting enmity between different groups on the ground of religion), 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion) and 354 A (sexual harassment).
Curiously, this outrage neglected to take into account that Hindu women were also explicitly insulted towards the end of this video.
A day after this discussion took place on the Clubhouse app, a new Room was opened with the subject, Gals do not have the privilege to marry upper cast boys (sic). In the video, the same account as before Kira xD is seen saying Girls should have just enough privilege that they can walk on streets naked.
He proceeds to call women objects in the videos that follow, saying at one point, Women should be made to lie down, have their chests opened, and be rubbed from head to foot with a hot iron rod.
In this video, he appears to be talking about all women, without qualifiers of caste or religion.
The Wire spoke to the person handling the account Kira xD, who was responsible for some of the most provocative statements in both groups, under conditions of confidentiality.
It was in fun
Kira is an 18-year-old male student, and claims to be both apolitical and irreligious, having no particular political inclinations to any party, nor believing in any religion. In conversation, he seems surprised by the amount of outrage that the video has generated, saying that these conversations take place as a matter of course on the Clubhouse platform, irrespective of what political affiliation or religion those engaging might belong to.
This sentiment was echoed by multiple people discussing the situation on the app, including a Hindu woman, Sarita*(24), who circulated the videos of the caste-oriented Room on the following day.
According to her, misogynist actions happen agnostic of religious or political affiliations, alleging that on that day, pictures of her were taken from her linked Instagram account and morphed onto lewd pictures something which again, seems to be a regularly occurring activity on the app. Sarita says she plans to take legal action, but was hesitant as it would be difficult to explain to her family.
Also read: A Reporters Notes: The Only Way Out for Targets of the Bulli Bai App is Forward
This is not the first time extreme misogyny has been reported on the app BBC reported that Clubhouse hosts a sustained atmosphere of misogynistic abuse, including a mock auction which featured 200 people watching and went on for two hours. However, unlike the Sulli Deals and Bulli Bai cases, this auction did not discriminate based on religion.
I did this in the heat of the moment, and it wasnt my intention to offend anyone, Kira said, saying that these rooms and this speech was preceded by another insulting Hindus, Sikhs, his parents, and making insults about attacking India, to which he and his friends were responding. He did not provide any evidence to substantiate this.
I only heard of Sulli Deals yesterday when I found out about this viral tweet, he said. On Clubhouse, when we make rooms, we put out a disclaimer saying if anything happens in the room, it should not be recorded.
I was not insulting anyone else I was using myself to insult, I thought it was okay. I made a story about a Muslim mother, this is why I was not targeting anyone else, because they get offended. I took my own name, its my decision.
Illustration: Pariplab Chakraborty
When asked about his intentions, he said it was a form of fun. Serious discussions were not happening there, it was in fun I was abusing myself. I did not want to hurt anyone. According to him, Trolling is not a crime.
Kira says he does not intend on doing this again, but he seems troubled at the idea that this was something problematic at all, saying that insulting people is a regular occurrence on the platform, and that the worst thing that he did was not respect his parents.
Kira seems to have been under the impression that this speech would not leave the confines of the Clubhouse room an element which is incongruous given the anti-Muslim speeches made and disseminated by the political right wing and by radical Hindutva activists. He also does not think that these actions in any way translate to real life, saying, Of course I do not believe (that rape is an art), when questioned about an allegation that accused him of making this statement. If someone was threatening to rape a girl in front of me, I would protect her.
This again is a small but significant deviation from the Hindutva radical hate speech, which when advocating for violence against Muslim bodies, follows up the threat with very real-world hate crimes be it against interfaith couples, Muslim sites of work or simply visible Muslims occupying public spaces.
So what exactly is going on here? Is Kira part of an ecosystem of right-wing hatred, like the trads that The Wire has previously reported on? If so, why is he disowning his ideology? Or is he the product of an osmotic effect, as the official poison leaches into the social topsoil, producing wild contaminations? And most alarmingly, why did nobody on the app seem to take issue against these horrific statements while they were being made?
The answer to a lot of these lies in the nature of the platform of Clubhouse itself, and the specific digital subculture within which this speech is operating.
What is Clubhouse?
ClubHouse is, simply, a place for people to talk to each other. Accounts that do not necessarily need to be linked to real-world handles, guaranteeing a degree of anonymity, engage with each other in Rooms very similar to a conference call.
The space is currently more anarchic and less structured in nature than the usual social media spaces like Instagram, Twitter and Facebook, because you can join any Rooms publicly available, without barriers to access like the invitation of those involved as a result, while space does create an algorithmically directed political bias (for instance, if you choose to follow clubs about Hinduism, it will recommend popular groups on the subject), it lacks the intensely silo-ed nature of the more established social media platforms.
It also has a distinctly ephemeral nature while many conversations in rooms can be made available for replay, for the most part, they are not, giving the conversations taking place a momentary, dynamic nature in contrast to the archival nature of other platforms.
Illustration: The Wire
Clubhouse was launched in 2020, making it among the youngest platforms currently available, and only recently aiming for a mass audience. In August of 2021, it was launched to the public before that, you needed an invitation to get in. When you take the combination of anonymity, the lack of algorithmic silos making for discrete political spaces, and the ephemeral nature of the content itself, were looking at a digital space which resembles the early days of the 4chan message-board and were seeing a subculture with very similar characteristics arising from it, with its attendant dangers.
When 4chan was first developed in 2003 by the 15 year old Chris Toole, it was meant to be a space prioritising absolute freedom of speech. While it had seven major messageboards, the ones which shot to notoriety were /pol, short for politically incorrect and /b, a miscellaneous space for random items of speech which would be unlikely to be tolerated in mainstream spaces.
These two spaces were where the culture of trolling was born. As Emma Grey Ellis, a specialist in internet culture at WIRED put it, this was home to all the creepy porn and violent imagery banned from the rest of the site. Users are in it, they say, for the lulz. They make swatiskas trend on Google, tell Justin Bieber fans to self-harm, and leak celebrity nudes. By 2010, it had become distinguished by its lawlessness, obscene content and vindictive campaigns.
Also read: Tek Fog in Action: Targeting Women Journalists, Pushing Communal Narrative on COVID, Delhi Violence
An analysis of /b/ on 4chan made points that are pertinent to Clubhouse today that This language is part of the group identity: pushing the bounds of propriety in order to hack the attention economy and turn heads. It also made the important point that, Not only does anonymity invoke disinhibition on /b/, but styling the collective as Anonymous also suggests de-individuation and mob behavior.
As a result, ironic humour and the use of violent hyperbole plays a critical part of how this group understands and relates to each other, and creates an intra-group identity.
So what the literature would suggest is that when Kira creates a fictitious narrative of his mother as an object of his sexual interest, its plausible that his speech is not meant to be interpreted as a literal desire, as much as a provocation to a group where earnest communication would be suspect. This aim in this communication is to shock, to throw down a gauntlet as a form of play, to see if this shock quotient can be met or escalated. In a manner similar to hazing, the premise is that the group will explicitly be attempting to push or violate social boundaries, and your ability to take a joke becomes directly proportional to your status within the group.
These are rituals which have been consistently recorded in hypermasculine spaces as ways of establishing identity and creating social bonds, and as such, it is not surprising that they come along with extreme misogyny even though the groups themselves feature women.
In a conversation with Sarita, as well as in monitored conversations on the app itself, a point which came up repeatedly was that women were targeted simply for being friends with men who were the enemies of the aggressor, and faced violence like morphed images and verbal abuse even if they didnt say anything at all a punishment by association.
*Name changed on request.
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Clubhouse and the Fantasy of Sexual Violence Against Muslim Women - The Wire
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Howe Makes Just One Change In Our Predicted Team For Leeds – The Newcastle United Blog – The Newcastle United Blog
Posted: at 10:40 am
This is the team I am predicting Eddie Howe will name for Saturdays clash at Leeds. It has just one change from Watford with Jacob Murphy coming in on the right for Ryan Fraser.
Newcastle played well for 50 minutes last weekend against Watford but were limited in creating chances. Once Allan Saint-Maximins bit of magic broke the deadlock early in the second half, the lads withdrew into their shell.
The cautious approach allowed Watford over 30 minutes to push for the leveler which they eventually found in the closing stages. Howe admitted after the match that the fragile mentality of the group when taking a lead played a large part in the outcome.
Despite that, I believe Howe will make minimal changes tomorrow. There are no new signings to come into the team, unlike the last two weekends. Howe is still without Federico Fernandez, Callum Wilson, and Isaac Hayden.
Ryan Fraser has enjoyed a long spell in the starting eleven. The winger has started the last five matches but has created very little in the final third. Though he did link up well with new signing Kieran Trippier against The Hornets.
Jacob Murphy could be an option to come into the team and provide something different on the right. Newcastle need to create more clear-cut chances and this could be an opportunity for Jacob, who played well in the FA Cup defeat against Cambridge.
Jamal Lewis is also a potential change. However, tomorrow may be too soon for the young left-back despite returning to the bench last weekend. Howe was asked about Lewis during his Friday morning press briefing. He was quick to stress that the 23-year-old hasnt been back in training for long.
Paul Dummett was a safe hand at left-back against Watford. The 30-year-old should start again tomorrow. I just dont see Howe dropping either Jamaal Lascelles or Fabian Schar just yet. Though once a new arrival comes in or Fernandez returns that could be a different story.
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Please, Helen Zille, stop the ‘worse-than-apartheid’ cadre-deployment dog-whistle tactic – Daily Maverick
Posted: at 10:40 am
One is always told one should never, never, never, compare anybody to Hitler. He is beyond the pale, too evil and too often the person most people latch on to while trying to prove some badly constructed analogy. To a large extent, this is of course true. And if Helen Zille would only take this advice about comparing things to apartheid and colonialism, the DA might attract some more voters. You can at least put me in this camp.
Of course, there is some irony in the above, in that the apartheid government could well be compared to Hitler. Certainly Hendrik Verwoerd, Nico Diederichs, Piet Meyer, John Vorster and PW Botha were all great supporters of Hitler and his dreams in the 1930s and 1940s. The comparison can be made, surely? But what of Zilles recent comparison of the ANC to the National Party? Her exact words were: The old NP cadre deployment usually managed to build strong state-owned entities, a capable state, and led to significant industrialisation and economic growth. Quite the opposite under the ANC.
Offensive though it might be, I am told by many people around me that Zille is making a perfectly valid comparison. To me when I first read it, it smacked of the Italian right-wingers who long for the reincarnation of Il Duce. Mussolini, the saying goes, got the trains in Italy to run on time. This is easily comparable to saying that apartheid led to significant industrialisation and economic growth, is it not? The Mussolini quote is, I was told by an old Italian, wholly untrue and has been variously debunked. Interestingly, it was also a comment regularly made in the US when Donald J Trump came to power.
Much like the Mussolini craving, Zilles comment is not only morally and politically questionable, but factually incorrect. As the academic Jonathan Hyslop has shown, under apartheid the country and the government paid heavily for replacing bureaucrats in the 1940s, 50s and 60s with National Party supporters (ie cadre deployment).
The new officials placed in the senior positions of the civil service lacked the training and expertise of the people they had supplanted. This led to an all-too-familiar skills shortage, an issue that plagued the apartheid government. And when it packed the courts with its own judges, none of them brought the country justice or accountability. No government official was ever prosecuted during apartheid, while perfectly harmless intelligent men and women were thrown into jail for little to no reason, often without charge.
What is more, the quasi-fascist state that was apartheid was in fact deeply inefficient. It lost the fight in Angola, the economy tanked in the late 1970s, it lost control of the country in the 1980s and in fact was hopelessly outmanoeuvred by Cyril Ramaphosa during the negotiation process. As Jacob Dlamini has written about and shown, the competent apartheid bureaucrat is something of a myth.
It is true that for the first 30 years of apartheid rule the economy was booming. But the boom included many factors that had next to nothing to do with the government itself it was riding an international economic wave. And the mines, where the money came from, were not under their control. The 80s and 90s tell another story. When the Nats jumped the sinking ship in 1994, the country had suffered three years of negative growth. This position was, however, turned around somewhat after they left. In fact, until 2008 the economy under the ANC was reacting well. There were of course signs, with the onset of load shedding and the continual issues with corruption, that many planks in our ship were rotten.
So, if a comparison is to be made it should be:
As one of the great South African historians, Cornelis de Kiewiet put it, South Africa has always advanced politically by disasters and economically by windfalls. And the simple truth is, we havent had an economic windfall in many a long age. This is certainly one of the main issues behind our current set of woes.
But getting back to comparisons, it is said comparisons should always in some manner trade on like-for-like, apples against apples and oranges against oranges. So, is comparing the National Party to the ANC really possible?
The apartheid government in 1966 admitted in fact it boasted that it had since 1948 spent only R4-million on housing for South Africas 16.3 million blacks, coloureds and Indians. At the same time, it had spent R216-million on housing for about 3.3 million whites.
The apartheid government provided services for a tiny proportion of our population. Add to this, the population providing all the hard labour in this service delivery were the very ones not benefiting from it. One might well be able to build things better when workers have no rights to citizenship, no rights to vote, no right to protest. The pharaohs did a pretty decent job in building those pyramids! Or more correctly, their slaves did the good job. But again, maybe this is not a like-for-like comparison. Apartheid and the land of the pharaohs were very different systems of government, although they did both live off the labour of the dispossessed. Perhaps a better comparison with apartheid is what happens in certain current Middle Eastern states.
Thankfully, apartheid no longer exists south of the Limpopo. And its systems and ways of working are simply not comparable to our current problems. The terrible and corrupt job done by the ANC is not operating under apartheid laws and apartheid ways of working. To compare the two is like comparing a bucket to a battleship.
The question is, why doesnt Zille compare apples with apples? Why does she not compare us with countries with similar population sizes, similar democratic and economic systems, similar bills of rights, and with similar ethical racial concerns? France, Britain, Italy, Germany and South Korea (even the US) are all there ready for comparison.
And when we compare these to the way our country is run, then you really do see what an appallingly bad job the ANC is doing. Our education system is bordering on hopeless, we have no national health service, our police force is creaking at the seams, our National Prosecuting Authority is seemingly incapable of prosecuting anybody in authority, and tens of millions of people live in appalling conditions comparable only with the structures and facilities of the Middle Ages.
Sure, I hear those saying there are problems in the UK, France, the US and so on. But it would be a denial of the truth to claim the UKs trains are like ours; that the French education system is similar to what we have; that US prosecutors are just like the NPA; and the constant flow of electricity into US, Asian and European homes is similar to our shoddy shedding. These are in many senses (but not all) incomparable. Even living in the slums of the US is quite different from living in a South African shanty town or on our cities pavements. The ANCs attempt to better the lives of our people has been a complete disaster, a betrayal and in many ways amounts to the actions of the morally bankrupt. No one can, in all honesty, deny this.
So, with these comparisons readily available to Zille, why does she go back to the bad, flawed and morally repulsive comparison with apartheid? Well, the only thing that strikes me is that she is doing it to benefit her politics, which has now progressively (or regressively) become that of the white right.
She, for whatever curious psychopolitical reason, has given up on attracting black voters and has thrown, once and for all, her lot in with the progeny of apartheid hence the comparisons. Her political soundbites are nothing more than a political dog whistle, calling all the racists back into the laager.
One assumes this can be the only reason why she likes, so regularly, to mention those Caucasian days when electricity managed, without fail, to reach 750,000 homes; when judges found in favour of their racist views rather than those of justice; when the apartheid government destroyed the economy; and when a state could murder the likes of Steve Biko with impunity.
Helen Zille, of all people, should know better. DM
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Please, Helen Zille, stop the 'worse-than-apartheid' cadre-deployment dog-whistle tactic - Daily Maverick
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David Gauke: How my party lost its way – The New Statesman
Posted: at 10:40 am
We have learnt in recent weeks that there was a culture within 10 Downing Street of ignoring the rules. For those who are mystified about how this could have happened (and, in theory, there may be such people), all I can say is that this would not have happened under Theresa May. Or David Cameron. Or, I suspect, any other prime minister in modern times.
This is a Conservative government very different from its predecessors. In its attitude to rules and conventions, the manner and style of leadership, its coalition of electoral support, its policy priorities and its views towards our institutions; it all represents a distinct break with the past. This break has enabled a Conservative Party that had been in office for nine years to renew itself and win the support of new voters. It has also, on a number of occasions, caused queasiness from supporters of, and senior figures from, previous Tory administrations.
Are these characteristics determined by the character of the Prime Minister or are they the consequence of larger forces? Are the years of Boris Johnson an aberration or evidence of a more fundamental change in our politics? As Johnsons hold on office weakens and the prospect of a change of prime minister increases, the answers to those questions will help explain the future direction that the Conservative Party and the country will take.
There is no doubt that Johnson was an unusual figure to become Prime Minister of the United Kingdom. He came to office without having been leader of the opposition or long years as a minister. He had a brief and undistinguished spell as foreign secretary a grand position but of little relevance in understanding domestic policy and eight years as mayor of London where he was content to delegate many of his responsibilities.
Johnson was an inexperienced minister, however, he was an experienced public figure. He had been a household name for more than 20 years as a television personality who also happened to be a politician. People described him as colourful and larger than life and they very often liked him.
In 2008, when I was canvassing in my constituency I would find people volunteering that they were voting for Boris in the London mayoral elections, at least until I pointed out that they lived in Hertfordshire. Some years later, Mays cabinet held an away day and travelled by train to Runcorn station in Cheshire. There were a few locals milling around as the entire cabinet (minus the prime minister) walked along the platform unrecognised before the excited cry went up theres Boris! Johnson has always been judged more as a celebrity than as a politician. This has contributed to him being generally more highly regarded by those not closely engaged with politics than by fellow politicians.
[See also: Why Boris Johnsons No 10 is so dysfunctional]
He was widely viewed including by Conservative MPs as lacking administrative ability, a deep understanding of policy (only now, we learn, is he reading his briefing papers) and, it has to be said, a reputation for integrity. These perceptions blew up his 2016 leadership election campaign when the crown was there for the taking. It also meant that he was not the obvious successor to May for most of her time in office but, by the time of her fall in 2019, the majority of his colleagues were prepared to put aside their reservations and support him. He was seen (correctly as it turned out) to be a solution to the Brexit impasse and a means of delivering a Conservative majority. This was more important than competence and honesty.
The politics of 2019 were extraordinary and, if you want to make the case that Johnson is an aberration, one can argue that he would only have assumed office in those extraordinary circumstances. Now that those circumstances have passed, the argument goes, we can return to normality. The Conservative Party can elect a more conventional leader and pursue a more conventional Tory agenda. Post-Johnson politics can look like pre-Johnson politics (only with the UK outside the EU because, after all, he got Brexit done). Let us not speak of him again.
Just at the moment, this prospect is somewhat tempting for many Conservatives, but it would be a misreading of events. It ignores the causes of the Brexit impasse, it ignores the political risks that faced the Conservative Party in 2019 and it ignores the political opportunity which Johnson seized at the last general election and which the Conservatives are likely to want to replicate.
Johnson skilfully exploited the nations weariness with a problem he had helped to create the apparently endless drama that was leaving the European Union. Reassured by Leave politicians that this would be a simple and straightforward matter in which the UK held all the cards, it came as a shock to the electorate that negotiations proved to be complicated and that the EU was not prepared to give the UK everything it demanded.
Matters were not helped by the most intractable issue being one of little direct relevance to the population of Great Britain the border between Northern Ireland and the Republic of Ireland. This received little attention at the time of the 2016 referendum (despite the best efforts of Tony Blair and John Major) but the logic of the issue meantthat there was no way of delivering a satisfactory Brexit.
The UKs regulatory and customs divergence from the EU meant that a UK-EU border was necessary. In the context of Ireland, this meant either a border between Great Britain and Northern Ireland (raising questions about the integrity of the UK) or between Northern Ireland and the Republic of Ireland (raising questions about the Northern Ireland peace process). We could, of course, have decided not to diverge on regulatory and customs matters, but this would have brought into question the whole point of Brexit.
[See also: Commons Confidential: Will Allegra be next to turn on Boris Johnson?]
It was this trilemma that sunk Mays withdrawal agreement. As a sincere unionist and someone acutely conscious of the risks of creating a border on the island of Ireland, she obtained an agreement that effectively kept the UK in the single market for goods until the border issue could be resolved. This was a practical solution to the trilemma, but it failed the Brexiteers purity test.
Brexit had become redefined so as to mean that any compromise with the EU (or, indeed, any compromise with logic) was unacceptable. As one of the leaders of the Leave campaign, Johnson might have engaged with and understood the issue and tried to explain to his followers that it was necessary to address a real practical problem. Where he led, Brexit supporters might have followed.
Instead, Johnson dismissed the Northern Ireland border as nit-picking by Remainers (once likening it to moving between the two London boroughs of Islington and Camden) and sided with the sovereignty purists of the European Research Group. His answer to the Northern Ireland border question was to hang tough, shout louder and threaten the EU with a no-deal Brexit.
On the substance, Johnson turned out to be wrong. He thought he could avoid a border but agreed in October 2019 to putting one in the Irish Sea. He tried to reverse this while negotiating a new EU trade deal in the autumn of 2020 but again backed down and is still trying to renegotiate the Northern Ireland Protocol without much success. His position, however, did bring political rewards the support of the European Research Group in the Conservative leadership election and a comfortable victory among the staunchly Eurosceptic party membership.
Johnsons triumph among Conservative MPs was not, of course, limited to the diehard Brexiteers. It helped enormously that he was the favourite among the members and was always likely to win. That can focus the minds of those wanting a frontbench career. He was also the candidate who could most plausibly see off Nigel Farages Brexit Party, the winner of the 2019 European Parliament elections.
The risk for the Conservatives in 2019 was that they faced being squeezed on the Brexit-supporting right by Farage while being squeezed on the Remain supporting centre by the Liberal Democrats. This had happened in the European elections and Conservative MPs were terrified that it would happen again in a general election.
Johnsons strategy was to unite the Brexit side of the debate. Brexit had created a risk but also created an opportunity. By seeing off Farage, it meant that the Conservatives could appeal to a new part of the electorate cultural conservatives who had voted Labour and Ukip in the past and who wanted to see Brexit done. They liked Johnson a charismatic, anti-establishment, politically incorrect, optimistic, patriotic, affable character who did not take himself too seriously. He promised them change, more nurses and police officers and a bit of a laugh. He was also up against Jeremy Corbyn. In December 2019, Johnsons ambition was fulfilled and he won an 80-seat majority.
It is worth dwelling on this moment. It tells us three things about modern politics that are relevant to the post-Johnson world as well as his emergence as Prime Minister the nature of the parliamentary party; the determination to close down space to the Conservatives right; and the changing alignment of British politics.
Johnsons three predecessors as Conservative prime minister John Major, David Cameron and Theresa May were all brought down (or, at least, deeply damaged) by their inability to control the Eurosceptic right. Johnson, in contrast, exploited the right.
For a sizeable element of the Tory party, sovereignty has assumed an almost theological quality. They no longer exist in a world of trade-offs and compromises, of pros and cons, but a world of absolutes. In the context of Northern Ireland, this requires a continued refusal to accept the choices available and an insistence that we can avoid a border in the Irish Sea and diverge from the EU. Future leadership candidates will be acutely aware of this.
Incidentally, for most of these MPs, they also have a vision as to what Brexit means. Divergence is for a purpose and that purpose is to make the UK more competitive, to deliver the next stage of the Thatcherite revolution. The reality is that Brexit means reversing much of Thatcherism putting up taxes because the economy is smaller than it otherwise would have been, erecting trade barriers and imposing new regulatory burdens on business but the increasing tendency is to blame Johnsons Big State instincts for this predictable turn of events.
The events of 2018-19 also revealed a wider change of temperament within the parliamentary party. Conservative politics became about campaigning not governing, with well-organised factions talking to the like-minded, and using every method possible to exert pressure on the government. The Tories became more a party of protest than of government, with a research group for every cause.
In recent weeks, the most prominent of these groups has organised opposition to Covid restrictions. The country is fortunate that Omicron has turned out to be as mild as it has something that was not certain when a hundred Conservative MPs rebelled over the Plan B restrictions. Had these MPs got their way, with Plan B not implemented, (and had Chris Whitty, the chief medical officer, and Jenny Harries, the chief executive of the UK Health Security Agency, not warned the public to ration their socialising), the NHS may well have been overwhelmed this January.
[See also: The question is not if Boris Johnson goes but when]
Again, as with Brexit, Covid-19 has exposed a tendency among Conservative MPs to view the world as they would like it to be, not as it actually is. Their risk appetite is insatiable. Johnsons removal would not change this he was relatively cautious on Omicron.
The threat of an alternative party to the right of the Conservatives has diminished since 2019. This is partly due to Johnsons positioning and partly due to coronavirus. Farage and other Brexit veterans have associated themselves with the anti- lockdown cause, which has had little cut-through with their traditional older, Covid-vulnerable supporters. The Reform Party has consistently performed poorly in by-elections and opinion polls.
Post-Covid, however, the opportunity to change the subject and prompt public animosity towards immigration will increase. A significant breakthrough for the Reform Party remains unlikely but Farages influence comes not from his own success but his influence over those Conservatives easily spooked by the prospect of losing votes to him. If anything, Johnsons removal would increase these Tory concerns because his successor will not have Johnsons track record of diminishing Farages appeal.
The final lesson is that there is a long-term realignment of politics in the UK and throughout the developed world. Whereas once the economically secure voted centre right and the economically insecure voted centre-left, voting behaviour has become increasingly influenced by cultural matters. The way in which a particular constituency votes increasingly depends not on income levels but upon population density, ethnic diversity and education levels.
This has created an opportunity for the centre right and helped deliver the Red Wall to the Tories. Johnson, with his performative patriotism, ideological flexibility and apparently disarming personality, was able to woo this part of the electorate in a way that few Conservatives can. Reconciling the small-state instincts of many Tories with this electoral opportunity is a challenge that any leader of the Conservative Party will have to address but, with our current political geography, it is hard to see how the views of the median voter in a Red Wall swing seat (economically to the left, culturally to the right) can be ignored. This does not suggest a return to Cameroon-style liberal conservativism any time soon.
Johnsons period in office may be coming to an end. What replaces him will not be Johnsonian as such. He never offered a coherent philosophy and, ethically, any change will be a step in the right direction. Rule-breaking parties wont be an issue. But the forces apparent in 2019 an unruly, even delusional, parliamentary party, the fear of a threat from the right, and a realigned electorate that rewards cultural conservatism will continue to drive the politics of the Conservative Party for years to come.
David Gauke is a former Conservative secretary of state for justice and was MP for South West Hertfordshire from 2005 to 2019
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Indian Cultural Shock Hits Taiwans Business Ventures Here – ED Times
Posted: at 10:40 am
Globalisation has brought the world closer everyday. Following the same concept, Taiwan tech giants have one to set up their business in India.However, they have come face to face with an extremely unavoidable problem- the language barrier and the cultural difference!
Due to the growing problems between Taiwan and China, they decided to set up their new business ventures in India. Unfortunately, they forgot that India is its own country with its own languages, cultures and politics. This slight mishap has proven to be a major barrier in their plans!
Taiwan has the 14th largest economy in the world due to its ability of having the largest electronic manufacturing capability. It has been trying to politically distance itself from China however, the countrys economic fortunes are closely intertwined with those of Chinas.
Recent observation has led Taiwanese companies to realise that they have invested $200 billion into China and they have come to the conclusion that they want to diversify their investments and risks. They have also expressed interest in wanting to move away from hardware manufacturing and focus on growth that has software as its focus and hence, have wanted to partner with countries like India.
Multinational Corporations with roots in Taiwan have engaged in diversification of their assets in various countries for years. This particular diversification move has been undertaken by one particular companys globalisation and liberalisation policies. These companies are extremely well-equipped for situations which might require de-risking strategies and have the capability for expansions of positive growth.
These multinational corporations of Taiwan are averse to putting all their eggs into one basket. Hence, they have decided to set up offices and branches in India to better utilise the resources the country offers.
GJ Huang, the executive VP of Institute for Information Industry(III) says,India is an important partner of Taiwan for industrial development. There is going to be a paradigm shift in foreign investments made by Taiwan.
Taiwan has expertise in manufacturing hardware while India is known for its software and system designs. The country has only invested $200 million in India which is a minuscule amount compared to their $200 billion investment in China.
Mr.Huang further adds,This wide gap shows there is a huge opportunity for Taiwan to explore investment options in India.
This budding partnership is important to both countries as India will receive future investments from Taiwan and Taiwan can reap the benefits of manufacturing hardware in India which is objectively cheaper than manufacturing in China and provides better final quality of the products.
While everything about this investment opportunity sounds correct and economically beneficial to both countries on paper, reality hits a little different. China and Taiwan share common cultural roots which makes it easier for the companies of either country to function in the neighbouring one.
However, the officials of Taiwanese businesses have been hit with the nasty shock that India and Taiwans culture has nothing in common. The language barriers, raucous democracy and the cultural differences are hitting the businesses hard making it difficult to cope.
One of the major challenges is that India lacks the same infrastructure Taiwanese companies have encountered in China and hence, are used to. Terry Gou, the founder of Foxconn, was able to extract commitments to provide workers accommodation and the numerous other support services needed for a massive manufacturing operation by playing local governments off against each other in the battle to land the next iPhone factory.
It will be incorrect to assume that Chinese workers are more compliant than their Indian counterparts but Taiwanese management has found that local governments in China have a tendency of siding with companies over their workers. This situation is less likely in India, where leaders favour voter support during elections.
The major difference between the management styles of Taiwanese companies in China and India is the decision to hire local leaders to undertake the positions in the company while they operated on their own with their personal officials in China.
However, Taiwanese firms in India must learn to adjust with their surroundings faster if they want customers to shift their focus from Chinese manufactured products. Currently New Delhi and Taipei are both in a hurry to create a strong trading relationship in order to dampen Beijings economic power.
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The economics of electric cars and biofuels – Satenaw Ethiopian News/Breaking News | Your right to know!
Posted: at 10:40 am
An electric car or battery electric car is simply defined as an automobile that is propelled by one or more electric motors, using energy stored in batteries. Compared to internal combustion engine (ICE) vehicles, electric cars are quieter, have no exhaust emissions, and lower emissions overall. In the United States and the European Union, as of 2020, the total cost of ownership of recent electric vehicles is cheaper than that of equivalent ICE cars, due to lower fueling and maintenance costs. Charging an electric car can be done at a variety of charging stations; these charging stations can be installed in both houses and public areas.Out of all cars sold in 2020, 4.6% were plug-in electric, and by the end of that year there were more than 10 million plug-in electric cars on the worlds roads, according the International Energy Agency. Despite rapid growth, only about 1% of cars on the worlds roads were fully electric and plug-in hybrid cars by the end of 2020. Many countries have established government incentives for plug-in electric vehicles, tax credits, subsidies, and other non-monetary incentives while several countries have legislated to phase-out sales of fossil fuel cars, to reduce air pollution and limit climate change.Dr. Robert Duran of Norwich University stated that the Tesla Model 3 became the worlds all-time best-selling electric car in early 2020, and in June 2021, became the first electric car to pass 1 million global sales. Earlier models with widespread adoption include the Japanese Mitsubishi i-MiEV and the Nissan Leaf.The United States, the European Union, China and General Motors want to make battery-powered electric cars the champion of motorists worldwide. At the same time, United States and European agricultural interests and investors are pouring serious money into biofuels that go into cars and trucks running on liquid fuels. The billion-dollar question is whether they can both be right about the future of transportation. The answer may not be as simple as it seems.Right now, electric cars clearly have the momentum and the inevitability narrative on their side. The Biden administrations ambitious infrastructure proposal sets aside $174 billion to subsidize electric cars, but little for biofuels. As Bloomberg News has reported, Europe is taking unprecedented steps to phase out gasoline and diesel cars and bring an end to the almost 150-year-long era of the internal combustion engine. The United Kingdom has imposed a 2030 ban on the sale of cars lacking a plug, and Germany has extended for four years its subsidies for electric vehicles. China plans to produce 8 million of the vehicles by 2028.Ian Johnson, Secretary General of the Club of Rome, stressed that the biofuels cause isnt helped by a legacy of controversy and environmental opposition. This dates back to early concerns about the value of agricultural fuels in abating greenhouse gases, as well as worries about their impact on food prices and fragile ecosystems. That makes it easy to dismiss the idea of pursuing two paths forward as a waste of time and resources. Others suggest this is another sorry example of the schizophrenic policies that we end up with when politicians shy away from choosing between powerful interests, in this case farmers and environmentalists.But with liquid fuels powering 1.3 billion vehicles around the world now, a both of the above approach makes sense. Graham Noyes, Executive Director of the Sacramento-based Low Carbon Fuels Coalition stated that A strategy of skipping biofuels and electrifying everything means choosing to use massive quantities of fossil fuels that emit the most toxic and carbon intensive emissions,That same logic explains why the $135 billion a year global biofuels industry is betting that new innovations and investments in efficiencies will not only widen their products climate advantage over fossil fuels. It also believes these investments will keep the industry competitive with zero emission vehicles deep into a coming age of electricity, and even beyond.A California fuel importer explained it to media that Electricity out here is the new gold rush, but bright shiny objects arent going to get us to the promised land. Investors, corporations and farm-level bio-refineries have been backing that idea with their wallets.Last June, for example, Raizen, an energy company based in Sao Paulo, Brazil, announced it would open a new 21 million gallon a year refinery converting sugarcane to ultra-low-carbon ethanol to cater to increasing demand for cellulosic biofuels. Toyota has been experimenting with a new flex-fuel Prius hybrid capable of using up to 100 percent very-low-carbon ethanol. This could result in a climate impact no greater than that of electric passenger cars that plug into dirty power grids in countries such as the United States or Brazil.According to Graham Noyes, at the same time, a heartland biofuels industry that underpins the economies of hundreds of American farming communities is pinning its hopes on such things as a planned $2 billion dollar multi-state pipeline network. By some estimates, this could shrink bio-refineries carbon footprint by as much as 25%. The pipeline will capture carbon dioxide emitted during ethanol fermentation and bury it deep underground in North Dakota. Californias unsung workhorses.In California, the home state of Tesla and also the countrys largest fuel market, biofuels made from mundane agricultural products have been key in cutting the climate impact of transportation in the state by 7.5% since 2011. The unsung workhorses of this improvement include biofuels made from corn, soybeans, hog and beef fat, manure gases from dairies, and used cooking grease.A biofuels executive with a knack for politically incorrect metaphors stated that renewable diesel from choice white grease the daintier name that traders use for pig fat already powers some Amazon delivery trucks. Its the prettiest girl in town,.What is unclear is how a dual track to the future of transportation will play out in marketplaces and supply chains. In the United States, the outlines of a coming conflict have already begun to appear. Ahead: Collapsing corn prices?, a report recently commissioned by the Agricultural Retailers Association which is representing companies selling farm equipment, seeds and other inputs, predicts collapsing corn prices and farm revenues if the sale of new liquid-fueled passenger cars is banned, as California Governor Gavin Newsom has ordered starting in 2035.The 6 million member American Farm Bureau Federation has joined an alliance with the United States oil industry to fight federal and state electric car subsidies seen as discriminating against biofuels and farming communities.But many in the United States biofuels industry believe that competition on a level playing field would be much better for the industry and the effort to curb climate change than a brawl in the courts and Congress. They support the expansion of commercial carbon markets, such as one in California, in which fuels and technologies are rewarded based on their contribution to greenhouse gas abatement, as determined by regulators using data and science.For that they are finding some powerful support. A newly-formed alliance of United States car companies argues that improved internal combustion engines will be needed for years. These will benefit from lower-carbon, high-octane liquid fuels, including renewables.
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The economics of electric cars and biofuels - Satenaw Ethiopian News/Breaking News | Your right to know!
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Invoking The Fifth Amendment In Civil Cases | Abel Law Firm
Posted: at 10:39 am
Invoking The Fifth Amendment In Civil Cases
Although the actual wording of the Fifth Amendment to the U.S. Constitution says a person shall not be compelled in any criminal case to be a witness against himself, the right has been found applicable to civil actions as well. Natural persons in danger of facing criminal charges do not have to testify, answer interrogatories or produce documents about matters potentially incriminating to them.
What if an employer were to browbeat an employee and extract very damning admissions after she was involved in an wreck in the company vehicle? In a related civil action, parties could obtain the investigation made by the employer. The Fifth Amendment privilege would apply neither to the vicious interrogation nor to requests for production directed to the employer.
The Fifth Amendment does not prohibit all incriminating admissions: Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 1818 (1977); see, U.S. v. Kennedy, 122 F.Supp.2d 1195, 1198 (N.D. Okla. 2000) (privilege implicated only if government compels confession).
The Oklahoma Court of Criminal Appeals in Pierce v. State, 1994 OK CR 45, 878 P.2d 369, 375, quoted from U.S. v. Washington and agreed: The Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion. Statements coerced by non-governmental entities do not violate the privilege. See, Boyd v. State, 1987 OK CR 211, 743 P.2d 674 (physician on child abuse team); Wright v. State, 2001 OK CR 19, 30 P.3d 1148 (private citizen visiting jail); Stohler v. State, 1988 OK CR 52, 751 P.2d 1087 (news reporters outside courtroom). On the other hand, an interrogation done on behalf of law enforcement is subject to Fifth Amendment considerations. See, Dodd v. State, 2000 OK CR 2, 993 P.2d 778 (jailhouse informant working for government); Blanton v. State, 2007 OK CR 37, 172 P.3d 207 (DHS worker acting as an agent of police).
The Fifth Amendment will not be involved even if a private employer forces a confession. See, Colorado v. Connelly, 479 U.S. 157, 166-170, 107 S.Ct. 515 (1986) ( outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible ; [t]he sole concern of the Fifth Amendment, on which Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)] was based, is governmental coercion.); U.S. v. Stein, 440 F.Supp.2d 315, 333-334 (S.D.N.Y. 2006) (amendment restricts only governmental conduct, and will constrain a private entity only insofar as its actions are found to be fairly attributable to the government. [S]tate action will be found where the government commands or significantly encourages a private entity to take the specific action alleged to violate the Fifth Amendment, as well as where the government is entwined in the management or control of specific conduct at issue.); see also, Scoggins v. State, 528 S.W.2d 641, 643 (Ark. 1975) (statement made to employers private investigator not protected). The court in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967) pointed out how coercive it can be to be interrogated by an employer when ones job is on the line, but Garrity involved action by a state attorney general, not a private employer.
In civil cases, documents may not be compelled from the person who might be incriminated by their production, but they may be obtained from third parties, including their employers or agents. In Giles v. Doggett, 1972 OK 91, 500 P.2d 574, the court held the Fifth Amendment applies to statements compelled in civil cases from the person who might be subjected to criminal charges. The privilege is personal to the individual who might be incriminated. Rogers v. United States, 340 U.S. 367, 371 (1951); United States v. Nobles, 422 U.S. 225, 233, 95 S.Ct. 2160, 2167 (1975). Therefore, if incriminating documents are in the possession of employees, they, personally, cannot be compelled to produce them not because their answers were compelled in creating the documents, but because they cannot be compelled to divulge incriminating information in response to government action such as a subpoena or court order. See, United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237 (1984).
In Giles, 500 P.2d at 576, financial documents were sought from the person who might have been incriminated for defrauding a company not from a third party. The person was not compelled to produce his own documents. In Rey v. Means, 1978 OK 4, 575 P.2d 116, the appellant had been subpoenaed to produce her own tax returns, divorce papers and other financial information. The court stated, Compulsion exists in the forced production of documents by a motion to produce or a subpoena duces tecum issued to the person claiming the privilege. The compulsion must be upon the claimant, not a third person. If the person claiming the privilege is not compelled to do something himself, his fifth amendment rights are not violated. An agency relationship does not alter this result. Id. at 119.
Therefore, an employer or insurer has no standing to withhold documents that might incriminate its employee or its insured and cannot invoke the Fifth on behalf of an employee. See, Flavorland Industries, Inc. v. United States, 591 F.2d 524 (9th Cir. 1979) (no standing for employer to assert Fifth Amendment rights of employees when depositions of employees and responses to interrogatories in a civil suit were subpoenaed by grand jury). In Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 377 (1906), the court said the privilege was never intended to permit (a person) to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person.
Even lawyers and accountants cannot invoke or waive the privilege for their clients. See, United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982). In Fisher v. U.S., 425 U.S. 391, 397-399, 96 S.Ct. 1569 (1976) tax returns given by clients to their attorneys in order to obtain legal advice were not protected by the Fifth Amendment (although they might have been protected by attorney-client privilege). In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611 (1973), Fifth Amendment rights of a taxpayer were not violated by the enforcement of a summons directed to her accountant requiring production of the taxpayers records in the accountants possession.
An employee cannot claim the privilege for documents belonging to the employer. In a case in which the Securities & Exchange Commission sought financial records, the court stressed, It is settled that a person inculpated by materials sought by a subpoena issued to a third party cannot seek shelter in the Self-Incrimination Clause of the Fifth Amendment. S.E.C. v. Jerry T. OBrien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720 (1984).
A corporation does not have a Fifth Amendment privilege against self-incrimination. Braswell v. United States, 487 U.S. 99, 105, 108 S.Ct. 2284 (1988). The Fifth Amendment privilege is limited to its historical function of protecting only the natural individual from compulsory incrimination. Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2184 (1974).
Contents of corporate records are not privileged under the Fifth Amendment. U.S. v. Rinehart, 539 F.Supp.2d 1334 (W.D.Okla. 2008); United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). A records custodian may not resist the production of corporate records even if those records would tend to incriminate the custodian. Braswell, 487 U.S. at 108-109.
As forcefully summed up in Thomas v. Tyler, 841 F.Supp. 1119, 1124 (D.Kan. 1993) (f.n.2): [T]he Braswell case makes clear that there is absolutely, positively no circumstance in which corporate records or the act of producing corporate records, by the corporation or any person connected therewith, falls within the scope of the Fifth Amendment privilege against self-incrimination. Furthermore, an individual may not invoke the Fifth Amendment privilege to avoid producing the documents of a corporation or other collective entity that are in his custody, even if his act of producing those documents might be personally incriminating. Id. at 1128.
In Oklahoma, a person must specifically invoke the Fifth Amendment in civil cases. See, Matter of C.C., 1995 OK CIV APP 127, 907 P.2d 241, 243: In civil cases, the privilege against self-incrimination is not infringed upon by merely being called as a witness and compelled to take the oath. See Oklahoma Dept. of Public Safety v. Robinson, 512 P.2d 128, 133 (Okla.1973). In this regard, the Robinson court stated, The privilege cannot be invoked to excuse the witness from appearing and taking the stand. The privilege of a witness not to incriminate himself is an option of refusal and not a prohibition of inquiry. [T]he privilege against being involuntarily called to the stand as a witness against oneself applies only in criminal cases.
The Evidence Code, 12 O.S. 2513, prohibits comment upon or drawing inferences from a claim of privilege. The 1993 Evidence Code Committee noted 2513 and other Oklahoma evidence rules do not embrace the privilege against self-incrimination but the principle is applicable. No cases have been found holding that an unfavorable inference may be drawn from the failure of a person claiming a privilege to testify.
However, in 1995 in Matter of C.C., the court did not apply the principle of 2513: [T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment does not preclude the inference where the privilege is claimed by a party to a civil case. Moreover, [f]ailure of a party who is present at the trial to answer questions based on the privilege against self-incrimination raises a strong inference that the answers would have been unfavorable and damaging to him, and comment to that effect is proper. Id. at 244.Practical considerations
A civil case may proceed even if a party may be subject to criminal prosecution. Evidence cannot be coerced from that party, but can be discovered and placed in evidence when it comes from another source. The question will be whether evidence from third-party sources will be sufficient to prove or defend a claim.
Lynn Brusin Mares
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Invoking The Fifth Amendment In Civil Cases | Abel Law Firm
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SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus – The National Law Review
Posted: at 10:39 am
Wednesday, January 19, 2022
On Jan. 14, the Supreme Court agreed to hear five cases, which present the following questions:
Does the First Amendment permit a school to bar a coach from praying on the field after games?
Can a plaintiff bring a Section 1983 damages claim based on a police officers failure to provide aMirandawarning when the interrogation results in self-incriminating statements used against the suspect at trial?
When a veterans benefits claim is denied based on a regulation later deemed invalid as contrary to the statutes plain meaning, is the denial based on a clear and unmistakable error such that the veteran can challenge the otherwise-final denial?
When, if ever, should a death-row inmates as-applied method-of-execution challenge be raised via a habeas petition rather than via a Section 1983 claim, and if it should be raised in habeas is such a challenge subject to the bar on successive habeas petitions?
May federal habeas courts use the All Writs Act to order the transportation of state prisoners for reasons other than testifying or for trial, and may such courts allow habeas petitioners to develop new evidence without first determining whether such evidence would be admissible?
After granting three cert. petitions and relisting several more following its first conference of 2022, this week the U.S. Supreme Court filled out this years docket by granting cert. petitions in five additional cases.
The Court agreed to hear cases involving: 1) the application of the First Amendment to public school coaches postgame prayers, 2) the availability of Section 1983 claims based on police officers failure to provideMirandawarnings, 3) the ability of veterans to challenge otherwise-final benefit denials on the grounds the denials violated plain statutory meaning, 4) the procedural rules that apply to death-row prisoners method-of-execution challenges, and 5) the limits on federal courts authority to issue orders allowing state prisoners to develop evidence for their claims for habeas relief.
The First Amendment case drew 10 cert-stage amicus briefs and will undoubtedly receive the most public attention of this batch of cases. All five cases received some cert-stage amicus attention and likely will find interested audiences especially among governments, civil-rights litigators, veterans-advocacy groups, and criminal-law and habeas practitioners.
InKennedy v. Bremerton School District, the Court will address a football coachs claim that his public school employer violated his First Amendment rights when it terminated him for kneeling at midfield to say brief prayers at the end of football games. This case has made its way up to the Court once before three years ago, when the coach sought review of the lower courts denial of his preliminary-injunction motion. At that time, four justices wrote separately to indicate that while they found the lower courts reasoning troubling, the ongoing factual dispute over the schools precise reason for terminating the coach weighed against the Courts hearing the case.
The Washington district court and the U.S. Court of Appeals for the Ninth Circuit have resolved the factual dispute in question, concluding that the schools sole reason for its decision was its belief that the prayers presented a risk of liability under the Establishment Clause. And the Supreme Court has now agreed to take the case.
The schools Establishment Clause rationale could lead the Court to use this case to give public schools additional clarity on how the Establishment Clause and Free Exercise Clause interact in the educational context (its recent decision inEspinoza v. Montana Department of Revenueaddressed this issue, as will its upcoming decision inCarson v. Makinlater this term). Yet this case also raises an important Free Speech Clause question, and the Court could use it as an opportunity to clarify the private-speech/official-speech distinction it drew inGarcetti v. Ceballos, where it upheld governmental regulation of public employee speech made pursuant to official responsibilities an issue of interest to all public employers.
In any event,Kennedyis a case to watch for public schools and public employers more broadly.
Another set of public employers police departments will be watchingVega v. Tekoh, where the Court will consider whether a police officers failure to give a suspect a Miranda warning can itself give rise to a Section 1983 claim if the un-Mirandizedstatements are later used against the suspect in a criminal trial. InMiranda v. Arizona, the Court applied the Fifth Amendment to hold that a self-incriminating statement made by a criminal defendant while he was in custody cannot be admitted as evidence against that defendant unless the defendant first received the You have the right warnings specified inMiranda. The question inVegais whetherMirandasexclusionary rule constitutes a constitutional right the violation of which gives rises to a damages claim under Section 1983 (which authorizes a cause of action for deprivation of any rights . . . secured by the Constitution).
To answer this question, the Court will need to address a tension in its Fifth Amendment precedents. On the one hand, the Court has repeatedly characterizedMirandasexclusionary rule as a prophylactic measure that goes beyond what the Fifth Amendment requires. Yet, inDickerson v. United States, the Court held that the Fifth Amendment barred a federal statute that purported to override the evidentiary ruleMirandaestablishes.
Accordingly,Vegawill give the Court a chance to clarify the foundation and limits of theMirandarule, as well as an opportunity to address the contours of Section 1983 claims more generally. Given how common police interrogations and Section 1983 claims are, this case will be of interest to police departments and civil-rights lawyers around the country.
InGeorge v. McDonough, the Court agreed to decide a question that affects many veterans of Americas armed forces: Can a veteran challenge the otherwise-final denial of a benefits claim if the denial is based on a regulation later deemed invalid as contrary to the governing statutes plain meaning? This question arises from a provision of federal law that permits a veteran to challenge a decision denying a claim for benefits at any time after that decision is made even long after the ordinary appellate process has been exhausted so long as the veteran can show that the decision was based on clear and unmistakable error. InGeorge, the Court will decide whether it is a clear and unmistakable error to rely on a then-applicable regulation that a federal court later determines violated the clear meaning of the governing statute.
The veteran argues that such reliance is such an error because when a federal court interprets an unambiguous statute, it is declaring what the law has always meant, not announcing a change in meaning. The federal government, meanwhile, argues that the clear and unmistakable standard is met only when the agencys original decision is inconsistent with the prevailing view of the law at the time, and insists it is irrelevant whether that prevailing view is later held to have been incorrect (on the theory that decisions invalidating agency regulations change the law).
The parties arguments will give the Court occasion to address the difficult and recurring distinction between decisions changing the law and decisions proclaiming what the law has always been. Accordingly, whileGeorgehas obvious importance for the veterans-benefits system, it may turn out to be significant for the law more broadly as well.
The Court will address the applicable procedures for Eighth Amendment challenges to execution protocols inNance v. Ward. In this case, it will decide when, if ever, an as-applied method-of-execution challenge should be raised via a habeas petition rather than via a Section 1983 claim and if it should be raised in habeas whether such a challenge is subject to the bar on successive habeas petitions. Previously, inBaze v. ReesandGlossip v. Gross, the Court held that a death-row prisoner seeking to challenge a method of execution under the Eighth Amendment must allege a feasible alternative method.
InNance, the petitioner, a Georgia death-row prisoner, filed a Section 1983 suit that alleged that lethal injection (Georgias sole statutorily authorized method of execution) would be unconstitutionally painful for him, and he identified firing squad as an alternative method. The U.S. Court of Appeals for the Eleventh Circuit held that this challenge should have been brought as a habeas petition, not as a Section 1983 claim, reasoning that because the proposed alternative method of execution was not permissible under current law, the suit necessarily sought relief that can be obtained only in habeas an injunction that would imply the invalidity of the prisoners death sentence. And it further held that if a prisoner has already filed one habeas petition, any subsequent petition raising a method-of-execution challenge would be subject to federal laws stringent requirements for successive habeas petitions.
The Supreme Court has now agreed to review the Eleventh Circuits two holdings, and its decision will have obvious importance for death row prisoners, as it will clarify how method-of-execution challenges should be brought and may have significant effects on the practical availability of such challenges.Nancecould have significance beyond the context of capital punishment as well, for the Court could go some way toward clarifying the often-hazy distinction between relief that can be obtained in Section 1983 suits and relief that can only be sought via habeas petitions and that is a distinction that affects countless criminal defendants and incarcerated persons, not just death-row prisoners.
The Courts consideration of habeas procedures continues withShoop v. Twyford, a case involving state prisoners requests for court orders to assist them in developing evidence for use in their federal habeas proceedings. InShoop, the U.S. Court of Appeals for the Sixth Circuit approved an order requiring Ohio to transport a death-row prisoner to a hospital for a brain scan that the prisoner argues will produce evidence relevant to his habeas case.
Ohio contends this order suffers from two independent problems and therefore raises two separate questions. First, Ohio notes that the federal habeas statute allows federal courts to order the transportation of a state prisoner only if necessary to bring him into court to testify or for trial, and it argues that the catch-all All Writs Act does not expand federal courts authority to include ordering transportation for the sake of developing evidence. Second, Ohio argues that federal law authorizes an order allowing a habeas petitioner to develop evidence for his case only when the sought-after evidence would be admissible in the habeas proceeding; it is not enough, Ohio maintains, that the evidence in question plausibly relates to the petitioners claims.
The Supreme Court has agreed to address both of these questions, and while the Courts answers will be of greatest importance to habeas practitioners, its discussion of the All Writs Act should draw broader attention. Since the All Writs Act is used in a variety of contexts, criminal and civil litigators will do well to consider what the Court says on this score.
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SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus - The National Law Review
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NASA Mars Perseverance Rover: Ejecting Martian Pebbles
Posted: at 10:38 am
Before and After Perseverance Sample Tube Shake: An animated GIF depicts the Martian surface below the Perseverance rover, showing the results of the January 15, 2022, percussive drill test to clear cored-rock fragments from one of the rovers sample tubes. Credit: NASA/JPL-Caltech
The team has made good progress implementing the initial recovery steps outlined last week. Our first success: The upper two pebbles were ejected from the bit carousel during a test. This is great news, as these small chunks of debris are believed to be the cause of the unsuccessful transfer of the drill bit and sample tube into the carousel back on December 29. Our second success: We appear to have removed most if not all of the cored rock that remained in Sample Tube 261.
Here is the latest
On Monday, January 17, the WATSON camera imaged the bit carousel and its pebbles and also took images underneath the rover to establish just what was down there before any recovery strategies were applied. Later that same Martian day, we rotated the bit carousel about 75 degrees before returning it back to its original position. WATSON imaging showed the two upper pebbles were ejected during the process. Tuesday night we also received the second set of under-rover images, which show two new pebbles on the surface, indicating the ejected pebbles made it fully through bit carousel and back onto the surface of Mars as planned.
Rotating Perseverances Bit Carousel: An annotated GIF depicts a rotational test of Perseverances bit carousel in which two of four rock fragments were ejected. The five images that make up the GIF were obtained by the rovers WATSON imager on January 17, 2022. Credits: NASA/JPL-Caltech/MSSS
The other two pebbles, located below the bit carousel, remain. It is interesting to note that some of the initial trials performed on our testbed here on Earth indicate that the location of the two leftover pebbles may not pose a significant problem with bit carousel operation, but we are continuing analysis and testing to confirm this.
On Saturday, January 15, the team performed an experiment using Perseverances rotary-percussive drill. After the robotic arm oriented the drill with Sample Tube 261s open end angled around 9 degrees below horizontal, the rovers drill spindle rotated and then extended. Our remarkable Mastcam-Z instrument (which has video capability previously used to document some of Ingenuitys flights) captured the event. The imagery from the experiment shows a small amount of sample material falling out of the drill bit/sample tube. Later that same Martian day, the bit was positioned vertically over Issole (the rock that provided this latest core) to see if additional sample would fall out under the force of gravity. However, Mastcam-Z imaging of 261s interior after this subsequent maneuver showed it still contained some sample.
Perseverance Expels Rock Fragments: A portion of a cored-rock sample is ejected from the rotary percussive drill on NASAs Perseverance Mars rover. The imagery was collected by the rovers Mastcam-Z instrument on January 15, 2022. Credit: NASA/JPL-Caltech/ASU/MSSS
Given that some of the sample had already been lost, the team decided it was time to return the rest of the sample to Mars and hopefully completely empty the tube to ready it for potentially another sampling attempt. On Monday, January 17, the team commanded another operation of the rotary percussive drill in an attempt to dislodge more material from the tube. With the tubes open end still pointed towards the surface, we essentially shook the heck out of it for 208 seconds by means of the percussive function on the drill. Mastcam-Z imagery taken after the event shows that multiple pieces of sample were dumped onto the surface. Is Tube 261 clear of rock sample? We have new Mastcam-Z images looking down the drill bit into the sample container that indicate little if any debris from the cored-rock sample remains. The sample tube has been cleared for reuse by the project.
Perseverances Sample Tube Looks Clean: This image, taken by the Mastcam-Z camera aboard NASAs Perseverance Mars rover on January 20, 2022, shows the rover successfully expelled the remaining large fragments of cored rock from a sample tube held in its drill. Credits: NASA/JPL-Caltech/ASU/MSSS
The team is still reviewing the data and discussing next steps. Like all Mars missions, weve had some unexpected challenges. Each time, the team and our rover have risen to the occasion. We expect the same result this time by taking incremental steps, analyzing results, and then moving on, we plan to fully resolve this challenge and get back to exploration and sampling at Jezero Crater.
Written by Rick Welch, Deputy Project Manager at NASAs Jet Propulsion Laboratory.
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