Recently I’ve found myself thinking about a British case I read when I was a law student. Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate was decided in 1964 by the Appellate Committee of the House of Lords, which was at the time the highest court of the United Kingdom. The case became famous because, after the court ruled that the government had a duty to pay a certain judgment, Parliament nullified the judgment by retroactive legislation. I’m thinking about it now not for that reason, but because of the underlying facts. Burmah Oil had sued because British troops had destroyed its refinery in 1942 to prevent it from falling into the hands of approaching Japanese forces. It was a classic case of scorched earth.
Scorched earth is what a nation’s military forces do in combat operations against an invader’s forces. It is not what an elected government in a democratic country does when it is voted from office. Yet that is what we are witnessing in the increasingly messy and unsatisfactory transition from the Trump administration to the Biden administration. This is a far cry from the vandalism a few Clinton staffers committed when they removed the “w” keys from White House computer keyboards in the hours before the 2001 Inauguration.
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