Paradox of Self-Amendment by Peter Suber Despite what Hoffman and Temple make perfectly clear, this rule about self-incrimination does not extend to a president's claim of "executive privilege". Richard Nixon lost his argument that executive privilege was his for the asking, and that no court could inquire into its propriety or use compulsory process to investigate its justification. Nixon v. Sirica, 487 F.2d 700, 708-16 (D.C.Cir. 1973). Witnesses may be required to testify to enough contextual information for the court to decide whether the invocation of the privilege against self- incrimination is justified. Judge Learned Hand noted the paradox of this in U.S. v. Weisman, 111 F.2d 260, 261-62 (2d Cir. 1940): "Logically, indeed, [the witness] is boxed in a paradox, for he must prove the criminatory character of what it is his privilege to protect because it it criminatory."[Note 33] In principle courts can limit the privilege to those questions which, if answered truthfully, could yield self-incriminating testimony. But in practice they rarely do so, for to make this a regular practice would encourage prosecutors and jurors to infer criminality from the invocation of the privilege against self-incrimination, which would defeat the purpose of the privilege. It is difficult to prevent the inference of criminality; at least counsel cannot argue to the jury that the witness has incriminated herself by invoking the privilege against self-incrimination.[Note 34] Griffin v. California, 380 U.S. 609 (1965). But if a man made a contract with his employer not to disgrace the company, and then invoked the privilege against self-incrimination in a court, a jury can decide whether the invocation was a breach of the contract. Loew's Inc. v. Cole, 185 F.2d 641 (9th Cir. 1950), cert. den. 340 U.S. 954 (1950). Similarly, a statement to a doctor or lawyer is privileged only if made to the doctor or lawyer in her professional capacity. But this can often not be determined without actually hearing the statement. Nevertheless, the determination is made without hearing the statement. A stark "know before we know" paradox occurred in Matz v. U.S., 158 F.2d 190 (1946). A man prosecuted for bigamy argued in defense that he was only married to one woman; his first marriage was defective, hence void, and only his second marriage was valid. The state offered the second "wife" as a witness against him, but the man objected under a statute disqualifying a wife to testify against her husband. The man's objection would have to be sustained if the woman were really his wife, but that was precisely the question at issue in the trial. For if his first marriage had been valid, then his second would have been defective. Hence the admissibility of evidence on a certain question could not be decided until that very question was answered, requiring the judge to know before he knew. His ruling evaded the vicious circle by substituting a less vicious circle that still required him to know the man's guilt before the trial determined it: he ruled that he, rather than the jury, had to decide the validity of the first marriage.[Note 35] The Supreme Court has original jurisdiction over ambassadors and cases in which states are parties (Article III, §2.2). Suppose a borderline example of such a case came before the Court as if entitled to original jurisdiction, e.g. an allegedly discharged ambassador, or a suit between state administrative agencies. The Court must decide whether it has jurisdiction before it decides the merits, but it can't decide jurisdiction without, in effect, conceding original jurisdiction. Logically similar but less politically dramatic problems can arise for any court, since every court's jurisdiction has boundaries. This "know before we know" problem is solved by the device of "special appearance" in which a court can hear arguments for and against its jurisdiction. Only if the court decides that it does have jurisdiction will the parties be required to make "general appearance" for the adjudication of their rights. This does not prevent all reflexive paradoxes, however. In the case of the Supreme Court's original jurisdiction again, if the borderline case raised the question whether a certain woman was an ambassador, then the question of original jurisdiction could not be decided until the merits had been decided. One reason why the bootstrap doctrine (Section 20.F above) is controversial is that if a person comes to court under special appearance solely to deny the court's jurisdiction over her, the court may convert the special to general appearance and assert general jurisdiction over her. York v. Texas, 137 U.S. 15 (1890); Chicago Life Ins. Co. v. Cherry, 244 U.S.25, 30 (1917). In short, to prevent the reflexivity problem of deciding the merits of a case before deciding jurisdiction, and knowing before it knows, courts use the device of special appearance. But use of it in conjunction with the reflexive bootstrap doctrine creates the alternative reflexivity problem of self-validating judgments of jurisdiction by courts that can, in effect, use dissent as consent to a court's jurisdiction. Bail is excessive under the Eighth Amendment if it is greater than necessary to assure that the defendant will appear for trial. The risk of flight is the major factor in setting bail, and that risk may not be inferred from the indictment, even if it specifies an offense (e.g. conspiracy) that suggests that the defendant is able and likely to flee. Stack v. Boyle, 342 U.S. 1 (1951). An interesting example of a reflexivity that was obviously enacted to avoid a "know before we know" paradox is Federal Rule of Evidence 104 (a). It provides that none of the Federal Rules of Evidence applies to the judge's determination whether offered evidence is sufficiently relevant to be admitted, or whether a witness is qualified or privileged. Without Rule 104 (a), evidence inadmissible under law would have to be admitted so that the judge could decide its admissibility —or else the judge would have to know before she knew in each case. Effective-date clauses raise "know before we know" paradoxes insofar as they tell us authoritatively, before they are effective, when they and the statutes to which they attach will become effective. (See Section 14.C for more discussion.) 143