History Unplugged – an excellent discussion!

I was thrilled with this podcast. We really got into the building blocks of the American Revolution and Constitution: how the Constitution secured the gains of the Revolution, and why it succeeded:

Podcast: The Journal of the American Revolution

I am so excited to have been interviewed by Brady Crytzer about the origins of the political culture of Revolutionary America, and how we came to have representative government chosen by the people. This is the story told in my book:


I was interviewed for an ePluribis: America podacst

I was honored to be interviewed by Jeanette Lenoir in a podcast on the ePluribis: America website. As Jeanette notes, we discussed my view that in order to fully understand how America works, you need to understand its system of government and laws, and for that you must understand the origins of its Constitution. We discussed many other matters, including how Critical Race Theory sits with the Constitution:

The Lineage And Mechanism Of The U.S. Constitution

Interview on Australia’s Radio National, about my book and related issues

I was interviewed today, by Tom Switzer, on the deep origins of the American Constitution, and some of their implications for us in 2021.

The interview was prompted by my new book “Two Revolutions and the Constitution: How the English and American Revolutions Produced the American Constitution”.

The interview is the first half of today’s edition of “Between the Lines”. Thanks to Tom and the team at the ABC.

America: revolution, constitution and how they helped save the iconic Australian koala – Between The Lines – ABC Radio National

Our cultural divide will complicate lockdown exit strategy

Interested in the end of the novel coronavirus lockdown? Noticing divergence in attitudes to the lifting of restrictions? In this note, I suggest a reason for the divergence:


Our cultural divide will complicate lockdown exit strategy

James Philips

Getty Images

1 May 2020

Exit from the COVID-19 emergency measures is getting closer.  Exit will be fractious.  Some of us will want the disease risk eliminated; others will prefer mitigation measures. The politics is about to get more difficult. 

The faultline of the different attitudes to exit will be cultural: between those who believe that people are vulnerable and that dangers must be controlled, and those who believe that people are resilient and risks can be mitigated but accepted.  

The culture of fear of risk began to gather momentum in the 1980s.  It has been written about increasingly since the mid–to–late 1990s.  According to Frank Furedi’s research (How Fear Works, Culture of Fear in the 21st Century), its origins go back to the aftermath of the First World War. 

We are accustomed to seeing this culture operate in areas such as relationships between adults and children; climate change; and impermissible dissent on university campuses and in workplaces.   

Well-intentioned activists often exaggerate the risks presented by their issue, in an attempt to drive public policy or behavioural change.  Emphatic warnings of imminent disasters work for them.  Sceptical or counter-narratives struggle to get traction. 

Responses to the risks of CO2 emissions are a marker of this culture.  Deep conviction that emissions pose an existential threat to people and the planet is more concentrated near the centre of our major cities than elsewhere.  The conviction is stronger within the state–funded sector than the private sector.  The conviction is strong in our cultural elite. 

The concentration of our cultural elite in the state–funded service sector means that its members are suffering less directly from the economic dislocation of current COVID-19 responses than other people.  And the cultural elite’s susceptibility to treat new risks as potentially catastrophic means that they will be strong advocates of aggressive measures: they will lean towards the New Zealand, rather than the Swedish, response. 

People whose livelihoods are being devastated (or will be devastated when the initial spending on the crisis cannot be sustained), and people who are not caught up in the elite culture of activism and fear, may be more likely to favour mitigation strategies: to lean towards the Swedish, and not the New Zealand, response. 

Even uncertainty about the origins of the novel virus serves the two narratives.  Those for whom ecological issues are paramount are likely to favour the version that has the novel virus transmitted from bats to people via pangolins.  It is dangerous to exploit the natural world and wild animals. 

Others might favour the biowarfare narrative.  The virus was manufactured in a lab in Wuhan with links to, or controlled by, the Chinese military.  The virus inadvertently escaped, and China’s response was slowed by the nature of information flows and controls in a one-party State.  It is dangerous to not be a realist in international relations. 

The quality of data and the assumptions used by advisors to government are also susceptible to divergent narratives.  We know that the data used for the initial response measures were very materially wrong.  Most significantly, they were distorted by gating criteria used in determining who would be tested.  Because our experts had to rely on flawed data, the assumptions which they used in their models were even more important than usual. 

As the quality of data improves on issues such as the proportion of infected people who are asymptomatic and the death rate from the virus, the assumptions in the models will increasingly be criticised.  With the benefit of hindsight, it will be possible to argue either that the modelers had to make risk-minimising assumptions; or that they exaggerated the threat, with dire consequences for many people. 

The Australian government was primed by disappointment in its response to the bushfire crisis to react vigorously to the next crisis, so it was no surprise to see it respond to the novel virus early and vigorously.  The political temptation will be to slow the exit to justify the initial response. 

Economic needs and popular frustration with the suppression of normal freedoms are likely to build and lead to a staged retraction of the emergency measures.  The exit will require acceptance of higher infection rates and more deaths, but in a context where it is known that the fatality rate is much lower than originally believed.  Better data will facilitate more targeted responses to the virus and disease.  

But the COVID-19 narrative and politics are likely to split along cultural lines. 

James Philips is a Sydney lawyer, company director and writer.

Law grads

A note from me in The Australian Financial Review. I don’t know where they got that picture from…



James Philips

Law grads need better leadership to manage working hours

Ticking time sheets won’t make young lawyers happier. Law firms must set clearer expectations and be good people managers.

James Philips Contributor

Jan 22, 2020 – 2.40pm

Graduate lawyers sometimes work very long hours. Some graduates are unhappy with that. It is hard to know the full cause of that unhappiness, but changed prospects and attitudes are probably partly responsible. Poor management may also be a cause.

When I entered a large law firm as a graduate more than 30 years ago, my attitude to the moderate pay, high demands and long hours was that I was investing in my own skills and career prospects. I wanted to learn as much as possible as quickly as possible. I was keen to move from interminable study to applying my knowledge to help clients. I wanted to make partner quickly.

Overwork: Some graduate lawyers now may have a different attitude in a more fundamental way in the age of work-life balance. 

It is hard to know how typical that attitude was. Based on my discussions with peers, something close to that attitude was not uncommon.

What’s changed? Some graduate lawyers have complained about the hours they work, and the Fair Work Commission is monitoring whether graduate lawyers are paid below award hourly rates, having regard to their above-award annual remuneration but also their long hours worked. That’s new. Of course, law firms must always comply with their legal remuneration obligations.

Then there are generational cultural and attitudinal differences. We need to be careful here. I am not aware of reliable data on these issues. Graduate lawyers at high-performing law firms are not typical of their age cohort. Many of them are at the highly intelligent and highly ambitious end of the distribution curve.

At least some graduate lawyers have attitudes not dissimilar from mine when I was a graduate. What they most want is the opportunity to do interesting work, and to learn and develop their skills. They care at least as much about mentorship, instruction and guidance on the job as they do about the level of their remuneration for the hours worked.

At least many law firms are aware that not all team leaders are always good people managers, and work on it.

But some probably haven’t bought into that deal. In the graduate recruitment process, law firms may emphasise the attractive aspects of working as a lawyer. Perhaps some graduates do not understand the full picture. And perhaps some do, but think it should be changed.

There may be rational and attitudinal reasons for dissatisfaction.

If you see your graduate lawyer role as a stepping stone to other jobs in law or in another industry, you may be less inclined to accept that the role involves investment by you in your own future. The proportion of graduates who do see their job as a stepping stone has risen over the years.

Some graduates now may have a different attitude in a more fundamental way. They may think it is unfair or exploitative that they work at a low hourly rate, or that their hours worked are inconsistent with their aspirations for work-life balance.

It has always been dangerous for high-performing law firms to talk in general terms about work-life balance. In some functional areas within law firms, working hours can be managed and are fairly predictable.

In the event-driven functional areas, such as work on large transactions or strategic litigation, deadlines are often short and intensity of effort is needed. The knowledge required to successfully execute that work has many dimensions, so that the work cannot just be spread around in order to avoid any lawyers working long hours.

That knowledge includes not only deep technical analysis and knowledge, but a detailed understand of all relevant facts and of the context of the transaction or case, including the client’s objectives and strategy – as well as the preferences of key members of the client’s team for such matters as style of communication and appetite for risk.

For those graduate lawyers who do accept the high-intensity nature of much of the work in some parts of a law firm, an issue at least as important as hourly remuneration is likely to be the quality of management of the transaction or case. Are the team leaders watching out for any signs of exhaustion or staleness? Burnout or sickness should never be part of the bargain.

Many transaction or case leaders see it as a core part of their role to monitor their team and give overburdened members a break, or reallocate work if needed. But some team leaders may at times fall down on this issue. Some graduates may see the hourly remuneration lever as an indirect way to address the unevenness of team-leader management skills. At least many law firms are aware that not all team leaders are always good people managers, and work on it.

If the issue of graduate lawyer remuneration is caught up with a bunch of issues, the fix may be not only about remuneration, let alone be resolved by new regulations that make ticking time sheets mandatory. In law firms, just like in other businesses, employment problems are best solved in the individual workplace. Clarity on just what the deal is for graduate lawyers, and good management in a demanding environment, is needed.

James Philips is a Sydney lawyer, company director and writer.

Importance of initial public testimony in Trump impeachment inquiry

I’ve written an op-ed in The Sydney Morning Herald on this topic:



If Trump is unfit for office, his impeachers need to convince swinging voters

ByJames Philips

November 15, 2019 — 12.00am

US ambassador to the Ukraine Bill Taylor and Deputy Assistant Secretary of State George Kent gave the first public testimony in the Trump impeachment inquiry this week. Expect Democrat-leaning commentators to write that it was “compelling”, and Republican commentators to say “it does not prove any wrongdoing”. The real test will be how swinging voters react to the testimony.

Who's listening to the bad news ... US President Donald Trump this week.
Who’s listening to the bad news … US President Donald Trump this week. CREDIT:AP

The Democrats need Taylor’s and Kent’s testimony to convince non-partisan voters that President Donald Trump acted corruptly and that his conduct means he is unfit for office. The evidence needs to capture the imagination of swinging voters, not just of partisan insiders.

"Their supply chains are cracking very badly and they're dying to make a deal," President Donald Trump said of China.

Forty-nine percent of Americans are in favour and 46 per cent are against Trump being impeached and removed from office based on what they have heard so far, according to a recent Wall Street Journal/NBC News poll.

Burglary and a cover-up played well against Richard Nixon, indiscretion and perjury less so against Bill Clinton. The Ukraine is not top of mind for many American voters so, to get their attention, the Democrats need another narrative.

They need to turn Trump’s alleged threats to withhold American funding from Ukraine – unless it investigated the conduct of Joe Biden’s son Hunter – into a story about the integrity of the President and about compromising American interests abroad.

Top US diplomat in Ukraine William Taylor, right, and career Foreign Service officer George Kent, left, are sworn in to testify at the first public impeachment hearings into President Donald Trump this week.
Top US diplomat in Ukraine William Taylor, right, and career Foreign Service officer George Kent, left, are sworn in to testify at the first public impeachment hearings into President Donald Trump this week. CREDIT:AP

There are four steps to the impeachment process. Committees of the House of Representatives investigate. The House’s Judiciary Committee then considers whether to recommend impeachment. If it does, the House votes on whether to impeach. If it impeaches, the President will be tried by the Senate. If two-thirds of senators who vote are in favour of conviction, the President will be convicted and removed from office.

The Republicans have a majority in the Senate.

If the House impeaches Trump after finding compelling evidence, some Republican Senators could vote for conviction. Republican Senators will probably only vote to convict if they think they will be punished in the next Senate election if they do not.

The Framers of the American Constitution copied the impeachment process from the British, with some modifications. In Britain, peak impeachment occurred in 1640-42, the beginning of the English revolutionary period. The Commons impeached several of the King’s appointed officials. Later, when Parliament controlled all appointments and removals, the power to impeach became obsolete in Britain.

The political tension in impeachment proceedings in Britain was between the King and Parliament. In America, the political tension is between American voters and the House of Representatives. Not the voters who are stridently partisan, who have already made up their minds, but the moderate and non-partisan voters who have an open mind, and who may be influenced by the testimony and the story as it unfolds.

Trump thrives on conflict and conspiracy theories. It is hard to see him trying to salvage some dignity by resigning if faced with the prospect of impeachment, as Nixon did. He will use the impeachment process to energise his base.

The key question is: how will impeachment play for persuadable or swing voters?

On October 31 the House of Representatives authorised the Trump impeachment inquiry. Speaker Nancy Pelosi and the House Democrats had begun the impeachment investigation

unconventionally, relying on the standing powers of House committees, without a resolution of the House. That allowed the investigative process to build momentum before it was approved by the House.

The impeachment inquiry will energise both partisan Democrats and Republicans. But will it play out for other Americans as cynical politics, or as a necessary defence of the Republic against an unfit President?

The Democrats’ own loathing of the President and his often-egregious behaviour makes it difficult for House Democrats to judge this issue dispassionately. And years of exposure to Trump’s often bizarre behaviour may have inoculated many Americans against more news about his conduct.

When the most important impeachment case in history failed against the Earl of Strafford in 1641, the Parliament executed him anyway, using the political process of a bill of attainder. Bills of attainder are not available to the Democrats: they are prohibited by the American Constitution. Democrats need another Plan B, in case the Senate does not convict.

Their Plan B is presumably that the news produced by the impeachment process will sway voters, even if Trump is not convicted. That plan plays well to Democrat insiders. But it may not play so well among non-partisan voters.

The noise from partisan commentators is not what matters. It is the response of swinging voters to the public testimony that is crucial.

James Philips is a corporate lawyer, a visiting law lecturer at Sydney University, and the author of an upcoming book, The American Constitution: the shortest history of its English and American foundations.

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