Law in Contemporary Society

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GillianHoFirstEssay 13 - 31 May 2023 - Main.GillianHo
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

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Foreword

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Foreword

 
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Although my original intended practice in Hong Kong is no longer viable due to the passage of the 2020 National Security Law, I would like to plan for a potential return to Hong Kong where I could maintain my goal to advocate for and educate citizens on their civil rights. Prior to 2020, my practice would have involved providing insights and opinions to Hong Kong’s legislative bodies on changes to the political and constitutional structure of Hong Kong at the expiration of the "One Country, Two Systems" agreement in 2047. However, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, a viable practice I could pursue would be a law firm or a clinic that would inform and advise citizens of their rights amidst the lack of clarity relating to the scope of the NSL and the ambiguity that would arise from the evolving interpretations of the NSL as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.
>
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Although my original intended practice in Hong Kong is no longer viable due to the passage of the 2020 National Security Law, I would like to plan for a potential return to Hong Kong where I could maintain my goal to advocate for and educate citizens on their civil rights. Prior to 2020, my practice would have involved providing insights and opinions to Hong Kong’s legislative bodies on changes to the political and constitutional structure of Hong Kong at the expiration of the "One Country, Two Systems" agreement in 2047. However, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, a viable practice would focus on informing and advising citizens of their rights amidst the lack of clarity relating to the scope of the NSL and the ambiguity arising from the evolving interpretations of the NSL as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.
 
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Redesigning My Practice

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The Practice

 
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Goals of the Practice

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Getting Off the Ground

 
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Structuring and Staffing

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A practice that could achieve the goal set out above would likely resemble a legal clinic. An alternative approach would be to create a non-profit organization, but potential staffers (explained below) such as legal practitioners, academics, and students would prefer to be associated with a formal clinic with the resources and prestige of a law school. Of Hong Kong’s three law schools, only The University of Hong Kong offers clinical education. Through HKU’s Free Legal Advice Scheme, the clinic would be able to offer preliminary legal advice relating to the NSL and handle real cases to allow students to develop their lawyering skills. Attorney staffing could also be achieved through outreach to Hong Kong-based private practice firms who are seeking the fulfillment of pro bono or CLE requirements.
 
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Breaking Even and Future Profits

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Structure and Staffing

 
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A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable members. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. Scholars, assisted by research assistants, can also track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of NSL cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
>
>
Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable staffers. Legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. Scholars, assisted by research assistants, can also track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of NSL cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. The above staffers could also assist with the educational aspect of the clinic, namely imparting the history of the Basic Law, recent events which led to the passage of the NSL, and how our judicial independence and constitutional rights have eroded. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, its curriculum has been refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
 
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Another aspect that education could take on is imparting the history of the Basic Law, recent events which led to the passage of the NSL, and how our judicial independence and constitutional rights have eroded. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
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Profit Requirements

 
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Existential Risks

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If the practice is accepted as a clinic offering at HKU, there would be less of a concern regarding profits since the clinic’s costs, ranging from staffing attorney fees to expenses associated with hosting educational sessions, would be funded by the law school. However, if it were to proceed as a non-profit organization, the practice would have to at least break even to remain viable. Potential revenue streams include payments for the legal representation of NSL clients, the presentation of educational seminars to corporate clients and law firms regarding changes to the NSL, as well as external funding by donors. Revenue from legal representation is volatile: as the 2022 National People’s Congress granted the Chief Executive authority to decide which lawyers are permitted to represent defendants, the volume of representation is subject to the arbitrary whim of the Hong Kong government. Moreover, private companies may be reluctant to be affiliated with the clinic for fear of being accused as “un-patriotic”. Finally, the practice would have to be incredibly selective about donors to avoid being accused of foreign collusion. As such, the practice would be best served as a legal clinic attached to HKU.
 
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The predominant risk in running this practice is the violation of the NSL. This would likely complicate staffing and funding of the practice, as individuals and organizations would be hesitant to be exposed to this liability. Further, in order not to run afoul of the NSL, foreign funding, and staffing would be wholly unavailable in order to avoid charges of foreign collusion.

Accusations of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. The practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the NSL’s extensive police powers to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information for allegations of endangering national security. While one could use encrypted software and communication tools, any communications outside of the work of the practice could still be used in considering criminal charges.

The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. The 2022 National People’s Congress also granted the Chief Executive authority to decide which lawyers are permitted to represent defendants and appoint judges in NSL cases. Separately, the Hong Kong government has proposed removing legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances"—presumably, NSL cases would not fall into this category. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the partiality of the judicial system in the adjudication of these cases and political intervention would result in likely conviction.

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Further Existential Risks

 
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The overarching, existential risk in running this practice is the violation of the NSL. Accusations of collusion with foreign forces could be minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. The practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the NSL’s extensive police powers to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information for allegations of endangering national security. While one could use encrypted software and communication tools, any communications outside of the work of the practice could still be used in considering criminal charges. The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. Coupled with the Chief Executive’s ability to designate legal representation, the partiality of the judicial system in the adjudication of these cases and political intervention would result in likely conviction.
 
In the process of cutting, another approach might have been to separate the past from the future, recognizing the forward-looking purpose of the effort and reweighting accordingly. Cutting down to exactly 1,000 words rather than building up from 500 was the crucial decision.

GillianHoFirstEssay 12 - 31 May 2023 - Main.GillianHo
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

Foreword

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When I first considered applying to law school, I had hoped to acquire legal training to act as a mediator or an advocate in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2047. Born shortly after the handover, I had aspired to gain admission to the committees that would be debating Hong Kong's political and constitutional structure at the expiration of "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law.
>
>
Although my original intended practice in Hong Kong is no longer viable due to the passage of the 2020 National Security Law, I would like to plan for a potential return to Hong Kong where I could maintain my goal to advocate for and educate citizens on their civil rights. Prior to 2020, my practice would have involved providing insights and opinions to Hong Kong’s legislative bodies on changes to the political and constitutional structure of Hong Kong at the expiration of the "One Country, Two Systems" agreement in 2047. However, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, a viable practice I could pursue would be a law firm or a clinic that would inform and advise citizens of their rights amidst the lack of clarity relating to the scope of the NSL and the ambiguity that would arise from the evolving interpretations of the NSL as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.
 
Changed:
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<
However, following the 2019 protests and subsequent passing of the 2020 National Security Law (NSL), my envisioned role is dead. The independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. Furthermore, given the national security threat accusations lodged against those seen as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest or the loss of my permanent residency either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
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Redesigning My Practice

 
Added:
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Goals of the Practice

 
Changed:
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Redesigning My Practice

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Structuring and Staffing

 
Changed:
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Renewed Goals

I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.

What My Practice Could Look Like

>
>

Breaking Even and Future Profits

 A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable members. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. Scholars, assisted by research assistants, can also track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of NSL cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.

Another aspect that education could take on is imparting the history of the Basic Law, recent events which led to the passage of the NSL, and how our judicial independence and constitutional rights have eroded. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.

Changed:
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Risks

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Existential Risks

 The predominant risk in running this practice is the violation of the NSL. This would likely complicate staffing and funding of the practice, as individuals and organizations would be hesitant to be exposed to this liability. Further, in order not to run afoul of the NSL, foreign funding, and staffing would be wholly unavailable in order to avoid charges of foreign collusion.

GillianHoFirstEssay 11 - 21 May 2023 - Main.EbenMoglen
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

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 The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. The 2022 National People’s Congress also granted the Chief Executive authority to decide which lawyers are permitted to represent defendants and appoint judges in NSL cases. Separately, the Hong Kong government has proposed removing legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances"—presumably, NSL cases would not fall into this category. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the partiality of the judicial system in the adjudication of these cases and political intervention would result in likely conviction.
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In the process of cutting, another approach might have been to separate the past from the future, recognizing the forward-looking purpose of the effort and reweighting accordingly. Cutting down to exactly 1,000 words rather than building up from 500 was the crucial decision.

In imagining a future practice, you are envisioning an expensive and carefully-constructed array of people and moving parts in which as a new lawyer you could hold a position, tentatively. In what sense is this your practice? Assuming it wasn't merely assumed into existence, how did you plan its creation?

Making such a thing is a vastly complicated and risky undertaking when all it has to do is make a living, long before one gets to the enmity of the government and its national security laws. Imagining in the big leagues is not just a wave of the wand: your magic brush must actually produce architectural drawings that can be built by mere mortals, such as you.

Let's try at least to be explicit about the issues. That makes some of our thinking reusable in the event that the particular magic refuses to put itself at our disposal.

 

GillianHoFirstEssay 10 - 25 Apr 2023 - Main.GillianHo
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

Foreword

Changed:
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When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2047. Born shortly after the handover, I had grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain its judicial independence and right to free speech. Following the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.
>
>
When I first considered applying to law school, I had hoped to acquire legal training to act as a mediator or an advocate in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2047. Born shortly after the handover, I had aspired to gain admission to the committees that would be debating Hong Kong's political and constitutional structure at the expiration of "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law.

However, following the 2019 protests and subsequent passing of the 2020 National Security Law (NSL), my envisioned role is dead. The independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. Furthermore, given the national security threat accusations lodged against those seen as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest or the loss of my permanent residency either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.

 
Deleted:
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However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations perceived as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
 

Redesigning My Practice

Renewed Goals

Changed:
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Prior to the passage of the NSL and the implementation of the "patriots only" election in 2021, I had aimed to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law. Nevertheless, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.

I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.

>
>
I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided. Citizens must understand their potential exposure to liability in a changing landscape.
 

What My Practice Could Look Like

Changed:
<
<
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be useful staffers of the clinic. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. This would be conducted on a pro bono or on a pay-what-you-can basis. Scholars, assisted by students or research assistants, can track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
>
>
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be suitable members. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. Scholars, assisted by research assistants, can also track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of NSL cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
 
Changed:
<
<
Another aspect that education could take on is imparting the history of Hong Kong's Basic Law, recent historical events which have led to the passage of the National Security Law, and the current status of eroding judicial independence and constitutional rights. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course administered by local schools in Hong Kong. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
>
>
Another aspect that education could take on is imparting the history of the Basic Law, recent events which led to the passage of the NSL, and how our judicial independence and constitutional rights have eroded. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
 

Risks

The predominant risk in running this practice is the violation of the NSL. This would likely complicate staffing and funding of the practice, as individuals and organizations would be hesitant to be exposed to this liability. Further, in order not to run afoul of the NSL, foreign funding, and staffing would be wholly unavailable in order to avoid charges of foreign collusion.

Changed:
<
<
The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security. A potential solution would be to use encrypted software and communication tools, but any communications outside of the work of the practice could still be used in considering criminal charges.
>
>
Accusations of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. The practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the NSL’s extensive police powers to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information for allegations of endangering national security. While one could use encrypted software and communication tools, any communications outside of the work of the practice could still be used in considering criminal charges.
 
Changed:
<
<
The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction.
>
>
The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. The 2022 National People’s Congress also granted the Chief Executive authority to decide which lawyers are permitted to represent defendants and appoint judges in NSL cases. Separately, the Hong Kong government has proposed removing legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances"—presumably, NSL cases would not fall into this category. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the partiality of the judicial system in the adjudication of these cases and political intervention would result in likely conviction.
 
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This draft is more than 1250 words, 25% over the limit. We can't work on it at all together until you've cut it down.
 

GillianHoFirstEssay 9 - 24 Apr 2023 - Main.EbenMoglen
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

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 The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security. A potential solution would be to use encrypted software and communication tools, but any communications outside of the work of the practice could still be used in considering criminal charges.

The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction. \ No newline at end of file

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This draft is more than 1250 words, 25% over the limit. We can't work on it at all together until you've cut it down.


GillianHoFirstEssay 8 - 07 Apr 2023 - Main.GillianHo
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META TOPICPARENT name="FirstEssay"

Rethinking My Practice

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 Prior to the passage of the NSL and the implementation of the "patriots only" election in 2021, I had aimed to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law. Nevertheless, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
Changed:
<
<
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.
>
>
I would prefer to continue pursuing work relating to the rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.
 

What My Practice Could Look Like

Line: 30 to 30
 The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security. A potential solution would be to use encrypted software and communication tools, but any communications outside of the work of the practice could still be used in considering criminal charges.

The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction.

Deleted:
<
<

Acceptance of Exile

 \ No newline at end of file

GillianHoFirstEssay 7 - 06 Apr 2023 - Main.GillianHo
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"

Rethinking My Practice

Foreword

Changed:
<
<
When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2049. Born shortly after the handover, I had grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain
>
>
When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2047. Born shortly after the handover, I had grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain
 its judicial independence and right to free speech. Following the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.

However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations perceived as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.

Line: 31 to 31
 The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction.

Added:
>
>

Acceptance of Exile

 \ No newline at end of file

GillianHoFirstEssay 6 - 06 Apr 2023 - Main.GillianHo
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"

Rethinking My Practice

Line: 13 to 13
 

Renewed Goals

Changed:
<
<
Prior to the passage of the 2020 National Security Law and the implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law. Nevertheless, the government's independent passage of the NSL (with no outside consultation) and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
>
>
Prior to the passage of the NSL and the implementation of the "patriots only" election in 2021, I had aimed to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "One Country, Two Systems" policy as either a business leader or trained lawyer. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law. Nevertheless, the independent passage of the NSL with no outside consultation and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
 
Changed:
<
<
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to uphold these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.
>
>
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to maintain these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.
 

What My Practice Could Look Like

Line: 25 to 25
 

Risks

Changed:
<
<
The predominant risk in running such a practice is the violation of the NSL. This would likely complicate staffing and funding of the practice.

Should the Hong Kong government or the CCP perceive the practice's actions or goals as critical, the publication of educational materials could be accused of conspiracy to publish seditious materials.

The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasized that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and avenue of explicit political intervention would result in likely conviction.

Pressure to dissolve due to political and media pressure. Payment Issues Charge of Collusion with Foreign Forces

Charge of National Security Threat

Charge of Conspiracy (Absence of Freedom of Association)

No Protection from Judicially Independent Courts

Conclusion

>
>
The predominant risk in running this practice is the violation of the NSL. This would likely complicate staffing and funding of the practice, as individuals and organizations would be hesitant to be exposed to this liability. Further, in order not to run afoul of the NSL, foreign funding, and staffing would be wholly unavailable in order to avoid charges of foreign collusion.
 
Added:
>
>
The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasize that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security. A potential solution would be to use encrypted software and communication tools, but any communications outside of the work of the practice could still be used in considering criminal charges.
 
Added:
>
>
The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and the likelihood of political intervention would result in likely conviction.
 

GillianHoFirstEssay 5 - 06 Apr 2023 - Main.GillianHo
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"

Rethinking My Practice

Foreword

When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2049. Born shortly after the handover, I had grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain

Changed:
<
<
its judicial independence and right to free speech. In the aftermath of the violence and mass arrests from the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.
>
>
its judicial independence and right to free speech. Following the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.
 
Changed:
<
<
However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations critical of the CCP and the Hong Kong government, the fulfilment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
>
>
However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations perceived as critical of the CCP, the fulfillment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
 

Redesigning My Practice

Renewed Goals

Changed:
<
<
Prior to the passage of the 2020 National Security Law and Hong Kong's implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of Hong Kong's 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress of China formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of Hong Kong's handover in 1997. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sectors. Just as the BLCC considered and debated submissions on electoral issues and civic rights, I aspired to be a part of similar conversations. Nevertheless, the government's independent passage of the NSL (with no outside consultation) and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
>
>
Prior to the passage of the 2020 National Security Law and the implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of the 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of the 1997 handover. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sector and debated submissions on electoral issues and civic rights to be codified in the Basic Law. Nevertheless, the government's independent passage of the NSL (with no outside consultation) and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
 
Changed:
<
<
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to uphold these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into Mainland China.
>
>
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to uphold these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into China.
 

What My Practice Could Look Like

Changed:
<
<
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law, Chinese politics, and jurisprudence would be useful staffers of the clinic. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. This would be conducted on a pro bono or on a pay-what-you-can basis. Scholars, assisted by students or research assistants, can track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
>
>
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law and Chinese jurisprudence would be useful staffers of the clinic. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. This would be conducted on a pro bono or on a pay-what-you-can basis. Scholars, assisted by students or research assistants, can track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
 Another aspect that education could take on is imparting the history of Hong Kong's Basic Law, recent historical events which have led to the passage of the National Security Law, and the current status of eroding judicial independence and constitutional rights. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course administered by local schools in Hong Kong. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
Deleted:
<
<

The Role of Law School

 

Risks

Added:
>
>
The predominant risk in running such a practice is the violation of the NSL. This would likely complicate staffing and funding of the practice.

Should the Hong Kong government or the CCP perceive the practice's actions or goals as critical, the publication of educational materials could be accused of conspiracy to publish seditious materials.

The risk of potential charges of collusion with foreign forces could be ostensibly minimized by reducing the practice's interactions with overseas scholars and refusing any assistance from foreign bodies, particularly those attached to foreign governments. Additionally, the practice could emphasized that it is not asking to overturn the government's legislation but simply trying to inform citizens of their rights and the current status of legislation. Nevertheless, the extensive police powers granted by the NSL to investigate activists and civil society organizations may allow the police to cobble together loose pieces of information to accuse the practice of endangering national security The risk of violating the NSL is exacerbated by the eroded right to liberty and fair trial in Hong Kong. Under Article 44 of the NSL, the Chief Executive may exercise the power to designate judges at each court level to handle issues relating to the National Security Law. At the 2022 National People’s Congress, the Standing Committee ruled that Hong Kong’s chief executive can decide which lawyers are permitted to represent defendants and appoint judges for trials in NSL cases. The Hong Kong government has also previously proposed to remove legal aid applicants' right to choose legal counsel unless there are "exceptional circumstances" and reduce the number of legal aid cases lawyers can take on each year. As such, if the Hong Kong government and/or the CCP were determined to shut down the practice, the impartiality of the judicial system in the adjudication of these cases and avenue of explicit political intervention would result in likely conviction.

Pressure to dissolve due to political and media pressure.

 Payment Issues Charge of Collusion with Foreign Forces

GillianHoFirstEssay 4 - 06 Apr 2023 - Main.GillianHo
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"
Changed:
<
<

Rethinking the Viability of My Practice

>
>

Rethinking My Practice

 

Foreword

Changed:
<
<
When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China on its Special Administrative Region status. As an individual who was born shortly after the handover, I had grown up with the hope that Hong Kong would be able to implement elections by universal suffrage in accordance with a 2007 decision made by the National People’s Congress. However, the 2014 Umbrella Revolution soon illuminated the tensions between the general populace’s interpretation of universal suffrage and the Chinese Communist Party’s pre-screening requirement. In the aftermath of the violence and mass arrests from the protest, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. In that context, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to freedom of speech, expression, the press, peaceful assembly, and association.
>
>
When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China at the expiration of the "One Country, Two Systems" agreement in 2049. Born shortly after the handover, I had grown up with the hope that Hong Kong would be able to work towards elections by universal suffrage (in accordance with a 2007 decision made by the National People’s Congress) and maintain its judicial independence and right to free speech. In the aftermath of the violence and mass arrests from the 2014 Umbrella Protests, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. At that time, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to such as the freedom of speech and press.
 
Changed:
<
<
However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations critical of the CCP and Hong Kong governments, the completion of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
>
>
However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations critical of the CCP and the Hong Kong government, the fulfilment of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
 

Redesigning My Practice

Renewed Goals

Changed:
<
<
Prior to the passage of the 2020 National Security Law and Hong Kong's implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of Hong Kong's 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress of China formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of Hong Kong's handover from Great Britain to China in 1997. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sectors. Just as the BLCC considered and debated submissions for electoral issues and questions about residents' rights and duties, I aspired to be a part of similar conversations. Nevertheless, the government's independent passage of the NSL (with no outside consultation beyond the CCP) and the exclusivity of "patriots" in the legislature foreshadow unilateral changes made by the CCP and enforced by the Hong Kong government. As such, the aim of my practice is moot.
>
>
Prior to the passage of the 2020 National Security Law and Hong Kong's implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of Hong Kong's 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress of China formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of Hong Kong's handover in 1997. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sectors. Just as the BLCC considered and debated submissions on electoral issues and civic rights, I aspired to be a part of similar conversations. Nevertheless, the government's independent passage of the NSL (with no outside consultation) and the exclusivity of "patriots" in the legislature foreshadow unilateral passage and enforcement of any future changes in the law. As such, the aim of my practice is moot.
 
Changed:
<
<
In rethinking what goals I would like to accomplish with my chosen practice, I have decided to continue doing work relating to the evolving (read: dwindling) rights of Hong Kong citizens amidst the already enacted and incoming political changes. Instead of seeking change (as this seems like an impossibility), perhaps an alternative avenue would be to inform and advise citizens on their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into Mainland China.
>
>
In rethinking the goals I would like to accomplish, I have decided to continue doing work relating to the dwindling rights of Hong Kong citizens. Instead of fruitlessly advocating for the government to uphold these rights, an alternative avenue would be to inform and advise citizens of their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into Mainland China.
 

What My Practice Could Look Like

Changed:
<
<
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law, Chinese politics, and jurisprudence would be useful staffers of the clinic. The clinic would also benefit from work from either students or academic scholars who would track judicial decisions, legislative debates and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law.
>
>
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law, Chinese politics, and jurisprudence would be useful staffers of the clinic. The legal practitioners could provide consultations for individuals with queries regarding their rights and any potential liability exposure arising from actions they have already taken or intend to take. This would be conducted on a pro bono or on a pay-what-you-can basis. Scholars, assisted by students or research assistants, can track judicial decisions, legislative debates, and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law. Finally, staffers of the clinic could collaborate on publishing an annual report summarizing the crucial judicial and legislative decisions and providing an update on the most recent status of various rights. This would be distinct from the work done by organizations such as Amnesty International, as the work would be conducted from within Hong Kong.
 
Changed:
<
<
Another aspect that education could take on is imparting the history of . Civil
>
>
Another aspect that education could take on is imparting the history of Hong Kong's Basic Law, recent historical events which have led to the passage of the National Security Law, and the current status of eroding judicial independence and constitutional rights. Instruction in Hong Kong's government structure, history of political events, and local, social issues was previously covered by the compulsory Liberal Studies course administered by local schools in Hong Kong. Yet due to allegations of teachers presenting biased views that resulted in the supposed radicalization of students, it has since been renamed as "Citizenship and Social Development" and its curriculum refocused on topics such as patriotism, national development, and lawfulness. In order to preserve awareness of the civic rights once secured under the Basic Law and memory of the historical events which have led to their erosion, perhaps lectures or videos could be made covering these topics. In order to protect lecturers from accusations of being a national security threat, they will be advised to withhold their personal opinions and present factual narratives.
 

The Role of Law School

Changed:
<
<

Risks

>
>

Risks

 
Changed:
<
<

Charge of Collusion with Foreign Forces

>
>
Payment Issues Charge of Collusion with Foreign Forces
 
Changed:
<
<
To avoid being charged with collusion with foreign governments, I would likely have to institute the following rules: (1) No association with individuals who have been or accused of violations or charged under the NSL, including those who have relocated abroad; (2) No receipt of funding from individuals or organizations with ties to foreign governments (3) No association with so-called Western organizations such as Amnesty International and Human Rights Watch, whom the CCP has accused of making "irresponsible remarks... according to rumors and hearsay"
>
>
Charge of National Security Threat
 
Changed:
<
<
However, it may be difficult to
>
>
Charge of Conspiracy (Absence of Freedom of Association)
 
Changed:
<
<

Charge of National Security Threat

Reassure the Hong Kong and Mainland Chinese government that the organization is not one which is critical of any legislation or judicial decisions that pass, but one that would like to educate the general public of their rights and provide guidance for adherence to the law.

Charge of Conspiracy (Absence of Freedom of Association)

No Protection from Judicially Independent Courts

>
>
No Protection from Judicially Independent Courts
 

Conclusion


GillianHoFirstEssay 3 - 05 Apr 2023 - Main.GillianHo
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"
Changed:
<
<

"Out of Line" Justices

>
>

Rethinking the Viability of My Practice

 
Changed:
<
<
In the wake of Dobbs, public support of the Supreme Court waned. A September 2022 Gallup poll asked about trust and confidence in the judicial branch — over 53% fell into the “not very much” and “not at all” categories. Only 6 months after the leak of the Dobbs decision to the Associated Press, the Supreme Court was rocked by a whistleblower letter that revealed an individual had been made privy to the outcome of Burwell v Hobby Lobby before it was announced from a donor who had dined with Justice Alito and his wife.
>
>

Foreword

 
Changed:
<
<
As a result, calls for the Supreme Court to adopt a code of conduct have intensified. The House Judiciary Committee had advanced the Supreme Court Ethics, Recusal, and Transparency Act of 2022 requiring the adoption of an ethics code and to disclose gifts and conflicts of interest. The American Bar Association echoed these sentiments, passing a resolution that urges the court to put in place a binding ethics code akin to that adopted by the Judicial Conference. Shortly after, Senator Chris Murphy and Representative Hank Johnson reintroduced the Supreme Court Ethics Act.
>
>
When I first considered applying to law school, one of my primary reasons was to be educated on constitutional rights and comparative law in anticipation of future negotiations between Hong Kong and Mainland China on its Special Administrative Region status. As an individual who was born shortly after the handover, I had grown up with the hope that Hong Kong would be able to implement elections by universal suffrage in accordance with a 2007 decision made by the National People’s Congress. However, the 2014 Umbrella Revolution soon illuminated the tensions between the general populace’s interpretation of universal suffrage and the Chinese Communist Party’s pre-screening requirement. In the aftermath of the violence and mass arrests from the protest, Beijing signaled for Hong Kong’s reintegration. The fervent promotion of the Greater Bay Area signaled an accelerated convergence. In that context, I had hoped to acquire legal training to act simultaneously as a facilitator of increased business movement in the region and an advocate for Hong Kong’s unique constitutional features, in particular our ability to vote for representatives of our legislative government and the rights to freedom of speech, expression, the press, peaceful assembly, and association.
 
Changed:
<
<
Although Americans are entitled to demand accountability and transparency in their officials, I have always been confused by the outrage towards revelations of Supreme Court justices acting outside of the public's circumscribed expectations. As Senators Whitehouse and Graham, in a rare act of bipartisanship, noted to Chief Justice Roberts, the justices of “[the] highest court are subject to the lowest standards of transparency of any senior officials across the federal government.” It should therefore come as no surprise that the Supreme Court justices, in the absence of any real rules or consequences, would act outside of the conventions we expect of them.
>
>
However, following the 2019 protests and subsequent passing of the National Security Law (NSL) in 2020, my envisioned role is dead. Given the national security threat accusations lodged against individuals and organizations critical of the CCP and Hong Kong governments, the completion of my aspirations would likely result in my arrest by Hong Kong authorities or the loss of my permanent residency status either through forced deportation or self-imposed exile. My intended practice has to be completely redesigned or abandoned.
 
Changed:
<
<
I'm not sure how we know this. That "standards of transparency" are actually determinative of whether people behave with integrity seems to me, as philosophers say, unestablished. And there are "standards of transparency" that I think have historically affected Justices' conduct in my experience—like what will the Washington Post publish a critical column about—that apply to Supreme Court Justices quite strictly. Or did.
>
>

Redesigning My Practice

 
Changed:
<
<

Key Areas of Concern

>
>

Renewed Goals

 
Changed:
<
<

Internal Constraints

>
>
Prior to the passage of the 2020 National Security Law and Hong Kong's implementation of the "patriots only" election in 2021, I had aimed to leverage a future role as a trained lawyer and potential business leader to gain admission to the groups that would be debating Hong Kong's political and constitutional structure at the expiration of Hong Kong's 50-year "One Country, Two Systems" policy. There was historical precedent for such a path. In 1985, the National People's Congress of China formed the HKSAR Basic Law Consultative Committee (BLCC) to canvass views and provide input on drafts of the Hong Kong Basic Law in advance of Hong Kong's handover from Great Britain to China in 1997. The BLCC was comprised of representatives of the political, legal, business, education, cultural, and diplomatic sectors. Just as the BLCC considered and debated submissions for electoral issues and questions about residents' rights and duties, I aspired to be a part of similar conversations. Nevertheless, the government's independent passage of the NSL (with no outside consultation beyond the CCP) and the exclusivity of "patriots" in the legislature foreshadow unilateral changes made by the CCP and enforced by the Hong Kong government. As such, the aim of my practice is moot.
 
Changed:
<
<

Difficulty of Impeachment

Once appointed, justices will only depart from the bench if they resign, die, or are impeached. Of the fifteen judges who were historically impeached, only eight were convicted. Samuel Chase, the sole Supreme Court justice impeached, had been accused of “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” He was acquitted and resumed his duties until his death. As such, the risk of impeachment (particularly in the absence of an explicit code of conduct) is not threatening and does not effectively deter justices from overstepping boundaries.
>
>
In rethinking what goals I would like to accomplish with my chosen practice, I have decided to continue doing work relating to the evolving (read: dwindling) rights of Hong Kong citizens amidst the already enacted and incoming political changes. Instead of seeking change (as this seems like an impossibility), perhaps an alternative avenue would be to inform and advise citizens on their rights. As of now, the definition of "national security" and the scope of the charges within the NSL still lack clarity and predictability. The ambiguity of the NSL's language may be subjected to evolving interpretations as more cases are decided, and it is important for citizens to understand their potential exposure to liability in a changing landscape. The new goal of my practice would be the education of Hong Kong citizens of their rights and possible civil protections as Hong Kong is reintegrated into Mainland China.
 
Changed:
<
<

Life Tenure

The life tenure of the justices exacerbates this. This was designed to prevent justices from being swayed by the immediate interests of the president that nominated them and to insulate them from majoritarian interests. However, it also means that they can operate without being constrained to public sentiment or support, and thus do not have to exercise as much caution. Absent any tangible consequences, justices can afford to become lax in adhering to expected conduct.
>
>

What My Practice Could Look Like

 
Changed:
<
<

Faulty Investigations

These issues are compounded by the lack of an objective investigatory mechanism. In the recent investigation ordered by Chief Justice Roberts in response to the Dobbs leak, it was unclear whether the justices or their spouses had been interviewed. The investigation, ordered by one of the nine justices, had therefore exempted the justices from adhering to the same standard. The investigation was conducted by the court’s marshal and the court’s administrative staff, individuals with whom the justices are familiar. The lack of transparency and objective standards naturally creates an atmosphere where justices will be protected from strong scrutiny. The key purposes of insulating the court from undue influence and preserving public trust are undone by the lack of accountability that has enabled judges to exercise their discretion without fear of consequences.
>
>
A practice that could achieve the goal set out above would likely resemble a legal clinic. Legal practitioners and scholars of Hong Kong Basic Law, Chinese politics, and jurisprudence would be useful staffers of the clinic. The clinic would also benefit from work from either students or academic scholars who would track judicial decisions, legislative debates and new laws in order to allow the clinic to predict trends in the adjudication of National Security Law cases and potential changes to the law.
 
Changed:
<
<

External Influences: Dark Money and Donors

>
>
Another aspect that education could take on is imparting the history of . Civil
 
Changed:
<
<
While the nomination and appointment of Supreme Court justices are inherently political processes, the rise of political groups such as the Federalist Society and the dark money groups have led to the appointment of justices who maintain overly close, and sometimes conflicted contact with the benefactors who placed them to achieve their own agenda. While it is customary for presidents to solicit recommendations from regulatory agencies and the American Bar Association, the Federalist Society has played an outsized role in providing consultation and a narrow pipeline of nominees to Republican presidents. Six of the current justices are affiliated with the Federalist Society, three of whom were nominated by President Trump. The Federalist Society itself had been tasked with the job of vetting candidates for President Trump’s shortlist and its vice president Leonard Leo was reported to have worked closely with White House counsel Don McGahn during the nomination process.
>
>

The Role of Law School

 
Changed:
<
<
Furthermore, influential donor groups such as the Judicial Crisis Network have played an active role in obstructing or promoting candidates from nomination to appointment, thus shaping the policy goals on the bench. JCN spent $7 million opposing the appointment of Merrick Garland and more than $30 million in lobbying efforts to support President Trump’s appointments. Such efforts engender close relationships and potential obligations which justices may owe to these groups, hence creating opportunities for conflicted relationships to intervene in judicial decisions or even the leaking of confidential information. In the absence of deterrence mechanisms in the internal structure of the Supreme Court, these groups can tug on the justices' robes and demand for favors without consequences of any of the parties involved.
>
>

Risks

 
Changed:
<
<

Conclusion

>
>

Charge of Collusion with Foreign Forces

To avoid being charged with collusion with foreign governments, I would likely have to institute the following rules: (1) No association with individuals who have been or accused of violations or charged under the NSL, including those who have relocated abroad; (2) No receipt of funding from individuals or organizations with ties to foreign governments (3) No association with so-called Western organizations such as Amnesty International and Human Rights Watch, whom the CCP has accused of making "irresponsible remarks... according to rumors and hearsay"

However, it may be difficult to

 
Changed:
<
<
William H. Taft once remarked that the justices" [have a] constant consciousness that [they are] high-priest[s] in the temple of justice and is surrounded with obligations of a sacred character." However, this consciousness is eroded by the internal structure of and external influences on the Supreme Court. Without constraints on lobbying and donations involved in the appointment process, nor the creation of a code of conduct or reformed rules that would restrain unchecked discretion inside the judiciary, one must accept these as risks of the judicial structure we have received. I am just surprised that it has taken so long for such calls of reform to reach their current pitch of frenzy.
>
>

Charge of National Security Threat

 
Changed:
<
<
"Pitch of frenzy" might not be the moment in which to expect sound policy to be made in the negotiation between co-equal branches of federal constitutional government. Whatever legislation Congress makes and the President signs, its effect on the Supreme Court depends on the Court itself. Because the Court always exists in political context, because the division between "politics" and "law" (let alone "constitutional law") is mere fiction, we should expect the reality of politics (in large and small senses) in the Supreme Court building just as it is in Congress, the White House, the Departments of Justice and Defense, and the CIA. None, for different reasons, is at all transparent. What the press can't, won't, or doesn't get remains obscure from the democracy's citizens.
>
>
Reassure the Hong Kong and Mainland Chinese government that the organization is not one which is critical of any legislation or judicial decisions that pass, but one that would like to educate the general public of their rights and provide guidance for adherence to the law.
 
Changed:
<
<
It seems to me that the best routes to improvement lie in different directions. If the theme is whether the Supreme Court's Justices are presently corruptly involved in politics, before or after appointment, some reference to the historical record would be helpful in providing context rather than frenzy. But the present draft takes up the issue as though it were related to Dobbs. This apparent connection needs clarification. Talking about impeachment or the ills of life tenure or the murky Presidential politics of nominations in response to a controversial decision we don't like is not analytically sound. Thirty-one years ago, Pam Karlan and I filed an amicus brief in Planned Parenthood v. Casey on behalf of 178 organizations comprising a significant sliver of US civil society. There is nothing in Justice Alito's opinion in Dobbs that we didn't anticipate and (in my view) answer fully. Dobbs is to me the same abhorrent mistake Pam and I were hoping to avoid half a lifetime ago. But how do we get from wrong decisions to denunciations of corruption?
>
>

Charge of Conspiracy (Absence of Freedom of Association)

No Protection from Judicially Independent Courts

Conclusion

 
Deleted:
<
<
Does the leaking of a draft opinion or the whispering around of a result somehow get this connection in place? We would need to establish historical context, again, to know. It's not the maneuvering with the White House or the familial and political pressure on Justice Greer that makes Dred Scott repugnant, after all, however important Don Fehrenbacher showed those elements are to the words in the US Reports, or the bodies of the dead at Antietam.
 
Deleted:
<
<
But I think it might be that Dobbs is actually the central issue of the next draft after all. In which case it is not that the Justices have engaged in subterfuge, but rather that they have not. Justice Alito says that the unpopularity of the decision, which he takes for granted, should not weigh in its making. It is in taking that proposition seriously, considering what it means and into what it grows, rather than in arguing ad hominem against the integrity of the Justices who voted for it that the profounder critique is to be discovered.
  \ No newline at end of file

GillianHoFirstEssay 2 - 21 Feb 2023 - Main.EbenMoglen
Line: 1 to 1
 
META TOPICPARENT name="FirstEssay"

"Out of Line" Justices

Line: 8 to 8
 Although Americans are entitled to demand accountability and transparency in their officials, I have always been confused by the outrage towards revelations of Supreme Court justices acting outside of the public's circumscribed expectations. As Senators Whitehouse and Graham, in a rare act of bipartisanship, noted to Chief Justice Roberts, the justices of “[the] highest court are subject to the lowest standards of transparency of any senior officials across the federal government.” It should therefore come as no surprise that the Supreme Court justices, in the absence of any real rules or consequences, would act outside of the conventions we expect of them.
Added:
>
>
I'm not sure how we know this. That "standards of transparency" are actually determinative of whether people behave with integrity seems to me, as philosophers say, unestablished. And there are "standards of transparency" that I think have historically affected Justices' conduct in my experience—like what will the Washington Post publish a critical column about—that apply to Supreme Court Justices quite strictly. Or did.

 

Key Areas of Concern

Internal Constraints

Line: 30 to 34
 

Conclusion

William H. Taft once remarked that the justices" [have a] constant consciousness that [they are] high-priest[s] in the temple of justice and is surrounded with obligations of a sacred character." However, this consciousness is eroded by the internal structure of and external influences on the Supreme Court. Without constraints on lobbying and donations involved in the appointment process, nor the creation of a code of conduct or reformed rules that would restrain unchecked discretion inside the judiciary, one must accept these as risks of the judicial structure we have received. I am just surprised that it has taken so long for such calls of reform to reach their current pitch of frenzy.

Added:
>
>
"Pitch of frenzy" might not be the moment in which to expect sound policy to be made in the negotiation between co-equal branches of federal constitutional government. Whatever legislation Congress makes and the President signs, its effect on the Supreme Court depends on the Court itself. Because the Court always exists in political context, because the division between "politics" and "law" (let alone "constitutional law") is mere fiction, we should expect the reality of politics (in large and small senses) in the Supreme Court building just as it is in Congress, the White House, the Departments of Justice and Defense, and the CIA. None, for different reasons, is at all transparent. What the press can't, won't, or doesn't get remains obscure from the democracy's citizens.

It seems to me that the best routes to improvement lie in different directions. If the theme is whether the Supreme Court's Justices are presently corruptly involved in politics, before or after appointment, some reference to the historical record would be helpful in providing context rather than frenzy. But the present draft takes up the issue as though it were related to Dobbs. This apparent connection needs clarification. Talking about impeachment or the ills of life tenure or the murky Presidential politics of nominations in response to a controversial decision we don't like is not analytically sound. Thirty-one years ago, Pam Karlan and I filed an amicus brief in Planned Parenthood v. Casey on behalf of 178 organizations comprising a significant sliver of US civil society. There is nothing in Justice Alito's opinion in Dobbs that we didn't anticipate and (in my view) answer fully. Dobbs is to me the same abhorrent mistake Pam and I were hoping to avoid half a lifetime ago. But how do we get from wrong decisions to denunciations of corruption?

Does the leaking of a draft opinion or the whispering around of a result somehow get this connection in place? We would need to establish historical context, again, to know. It's not the maneuvering with the White House or the familial and political pressure on Justice Greer that makes Dred Scott repugnant, after all, however important Don Fehrenbacher showed those elements are to the words in the US Reports, or the bodies of the dead at Antietam.

But I think it might be that Dobbs is actually the central issue of the next draft after all. In which case it is not that the Justices have engaged in subterfuge, but rather that they have not. Justice Alito says that the unpopularity of the decision, which he takes for granted, should not weigh in its making. It is in taking that proposition seriously, considering what it means and into what it grows, rather than in arguing ad hominem against the integrity of the Justices who voted for it that the profounder critique is to be discovered.

 \ No newline at end of file

GillianHoFirstEssay 1 - 16 Feb 2023 - Main.GillianHo
Line: 1 to 1
Added:
>
>
META TOPICPARENT name="FirstEssay"

"Out of Line" Justices

In the wake of Dobbs, public support of the Supreme Court waned. A September 2022 Gallup poll asked about trust and confidence in the judicial branch — over 53% fell into the “not very much” and “not at all” categories. Only 6 months after the leak of the Dobbs decision to the Associated Press, the Supreme Court was rocked by a whistleblower letter that revealed an individual had been made privy to the outcome of Burwell v Hobby Lobby before it was announced from a donor who had dined with Justice Alito and his wife.

As a result, calls for the Supreme Court to adopt a code of conduct have intensified. The House Judiciary Committee had advanced the Supreme Court Ethics, Recusal, and Transparency Act of 2022 requiring the adoption of an ethics code and to disclose gifts and conflicts of interest. The American Bar Association echoed these sentiments, passing a resolution that urges the court to put in place a binding ethics code akin to that adopted by the Judicial Conference. Shortly after, Senator Chris Murphy and Representative Hank Johnson reintroduced the Supreme Court Ethics Act.

Although Americans are entitled to demand accountability and transparency in their officials, I have always been confused by the outrage towards revelations of Supreme Court justices acting outside of the public's circumscribed expectations. As Senators Whitehouse and Graham, in a rare act of bipartisanship, noted to Chief Justice Roberts, the justices of “[the] highest court are subject to the lowest standards of transparency of any senior officials across the federal government.” It should therefore come as no surprise that the Supreme Court justices, in the absence of any real rules or consequences, would act outside of the conventions we expect of them.

Key Areas of Concern

Internal Constraints

Difficulty of Impeachment

Once appointed, justices will only depart from the bench if they resign, die, or are impeached. Of the fifteen judges who were historically impeached, only eight were convicted. Samuel Chase, the sole Supreme Court justice impeached, had been accused of “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” He was acquitted and resumed his duties until his death. As such, the risk of impeachment (particularly in the absence of an explicit code of conduct) is not threatening and does not effectively deter justices from overstepping boundaries.

Life Tenure

The life tenure of the justices exacerbates this. This was designed to prevent justices from being swayed by the immediate interests of the president that nominated them and to insulate them from majoritarian interests. However, it also means that they can operate without being constrained to public sentiment or support, and thus do not have to exercise as much caution. Absent any tangible consequences, justices can afford to become lax in adhering to expected conduct.

Faulty Investigations

These issues are compounded by the lack of an objective investigatory mechanism. In the recent investigation ordered by Chief Justice Roberts in response to the Dobbs leak, it was unclear whether the justices or their spouses had been interviewed. The investigation, ordered by one of the nine justices, had therefore exempted the justices from adhering to the same standard. The investigation was conducted by the court’s marshal and the court’s administrative staff, individuals with whom the justices are familiar. The lack of transparency and objective standards naturally creates an atmosphere where justices will be protected from strong scrutiny. The key purposes of insulating the court from undue influence and preserving public trust are undone by the lack of accountability that has enabled judges to exercise their discretion without fear of consequences.

External Influences: Dark Money and Donors

While the nomination and appointment of Supreme Court justices are inherently political processes, the rise of political groups such as the Federalist Society and the dark money groups have led to the appointment of justices who maintain overly close, and sometimes conflicted contact with the benefactors who placed them to achieve their own agenda. While it is customary for presidents to solicit recommendations from regulatory agencies and the American Bar Association, the Federalist Society has played an outsized role in providing consultation and a narrow pipeline of nominees to Republican presidents. Six of the current justices are affiliated with the Federalist Society, three of whom were nominated by President Trump. The Federalist Society itself had been tasked with the job of vetting candidates for President Trump’s shortlist and its vice president Leonard Leo was reported to have worked closely with White House counsel Don McGahn during the nomination process.

Furthermore, influential donor groups such as the Judicial Crisis Network have played an active role in obstructing or promoting candidates from nomination to appointment, thus shaping the policy goals on the bench. JCN spent $7 million opposing the appointment of Merrick Garland and more than $30 million in lobbying efforts to support President Trump’s appointments. Such efforts engender close relationships and potential obligations which justices may owe to these groups, hence creating opportunities for conflicted relationships to intervene in judicial decisions or even the leaking of confidential information. In the absence of deterrence mechanisms in the internal structure of the Supreme Court, these groups can tug on the justices' robes and demand for favors without consequences of any of the parties involved.

Conclusion

William H. Taft once remarked that the justices" [have a] constant consciousness that [they are] high-priest[s] in the temple of justice and is surrounded with obligations of a sacred character." However, this consciousness is eroded by the internal structure of and external influences on the Supreme Court. Without constraints on lobbying and donations involved in the appointment process, nor the creation of a code of conduct or reformed rules that would restrain unchecked discretion inside the judiciary, one must accept these as risks of the judicial structure we have received. I am just surprised that it has taken so long for such calls of reform to reach their current pitch of frenzy.


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