Friday, March 24, 2006

Watch Your Mouth

As thrilled as I am that more women are taking key roles in the Democratic party, I would agree that perhaps the rhetoric surrounding them could be a bit more dignified. Women are more than mommies and cleaners. Amazingly, they also are Governors, Senators, and Representatives.

Who knew?

Watch Your FACE!

I'm an admitted addict of Facebook, the college networking site that's rapidly become one of the most popular sites on the internet, period. So I read with interest this post at Freedom to Tinker, about college security staff using Facebook to assist investigations on Princeton students [H/T: Orin Kerr].
The controversy started with a story in the Daily Princetonian revealing that Public Safety had used Facebook in two investigations. In one case, a student's friend posted a photo of the student that was taken during a party in the student's room. The photo reportedly showed the student hosting a dorm-room party where alcohol was served, which is a violation of campus rules. In another case, there was a group of students who liked to climb up the sides of buildings on campus. They had set up a building-climbers' group on Facebook, and Public Safety reportedly used the group to identify the groupĂ‚’s members, so as to have Serious Discussions with them.

Students were outraged over the alleged violation of their privacy. As the post author notes, this is apeculiarr reaction, because anybody with a Princeton email address (which includes the security staff) can get a facebook account and look at anything other Princeton facebook page (you have to "friend" people from other schools to see their profile, but your schoolmates are fair game regardless of whether they are friends or not). Given that, it's difficult to argue that a student really has a fair expectation of privacy regarding anything he or she posts onto the site.

Still, Facebook feels more private than it is. Most people, I feel, think of it as a virtual place to hang out and casually swap stories with friends. They don't think of it as effectively in the public domain. This image/reality gap is troublesome.

In any event, a warning to all facebook users. You may be being watched. Act accordingly.

Thursday, March 23, 2006

Mapping the Conversation

Lucky White Girl maps a conversation rolling through the blogosphere regarding the intersection of privilege and blogging. It's really interesting stuff.

The debate started with a Feministe discussion on whether feminist sites should allow non-feminists to post comments. I haven't been specifically following the thread of the conversation, but I have intersected with it in two places. First, back when Alas, a Blog was considering having threads reserved for "Radical Feminist Women" only, I wrote a post objecting and proposing instead that certain threads be "reserved" for anti-feminists to prevent sidetracking. AAB ended up taking a roughly equivilant stance, leaving most threads open while reserved some for "feminist or feminist-friendly posters," which, while limiting, is nowhere near as constricting as "radical feminist women."

I also read Dark Daughta's post on male feminist bloggers occupying a privileged position in the feminist blogosphere. This post I think was targetted directly at male-operated AAB. I read the post at about the same time as I was writing my "Privileged Man's Guide to Life" post, which I think parallels this discussion nicely as well.

In any event, it's an interesting discussion, and a topic that should be explored in depth (albeit civilly--a right to be hostile, even if justified, doesn't make it the best theory or the best practice).

Irreligious Freedom

Over Winter Break, I reunited with a friend of mine who came from one of the few staunch Republican families I knew in Bethesda. I was over at her house and fell into a conversation with her mother, who if anything was more rightwing than her daughter (who'd probably be best described as a moderate conservative). One of the topics of conversation we got into was religious discrimination in America. She had completely bought into the meme that it was Christians who were persecuted here, and atheists got preferential treatment from the government and society. I said that this was a tremendous exaggeration, and not being able to put a 2 ton ten commandments statute in the middle of a courthouse pales in comparison to the social and political ostracization faced by religious minorities across the country.

We went back and forth for awhile, and finally, I cited a Fox News poll saying that around 50% of Americans would refuse to vote for an otherwise qualified atheist for the Presidency. I thought it was my coup d'grace, until she said that she won't vote for one either. Unfortunately, "House" came on right then on Fox, so that ended the conversation. But I was aghast.

Today, Kevin Drum links to a study showing significantly higher negative views by Americans of atheists than of nearly any other group, including Muslims, Gays and Lesbians, and immigrants. The study's authors claim that atheists constitute a glaring exception to the rule of increased social tolerance that has prevailed over the last 30 years.

I am not an atheist. But I am a religious minority. I bear close to my heart Niemoller's warning of what happens when you don't speak up for those they come for first. Degrading the dignity of some threaten the dignity of us all. The message of millennia of human warfare, genocide, imperialism, and destruction is that above all us, respect the dignity of others. There is no alternative. And people who foster hate and resentment toward their fellow human beings are the handmaidens of Satan, even if they claim to speak for God.

Defending Delgado

Oy gevolt, what a day. I just got into to Eugene, Oregon. It was a three-legged trip: Washington to Minneapolis to Salt Lake City to Eugene. In other words, I was in every time zone today. And this computer is brand new--I'm still getting used to it.

Anyhow, I trolled about a few of my regular sites, and wouldn't you know it if I hit jackpot at Concurring Opinions. Not the post itself, but the pointer to Law and Letters. An aspiring law professor with a background in Critical Race Theory? To the blogroll!

But alas, it appears that Belle (the proprietor) is tiring of Critical Race Theory, and is turning her attention to other scholarly endeavors. That's sad enough by itself--I'm not really close enough to the legal academic community to be sure, but it seems as if CRT is in a bit of a rut recently. Whenever I do research, it seems the big pathbreaking articles were published in the late 80s and early 90s, with a significant drop off post, say, 1995. Obviously, part of this is due to the fact that more recent articles have not gotten the same degree of penetration, but it feels like a deeper type of stagnation has beset the movement. In any event, it's a shame that a talented young prospect is leaving the fold.

However, Belle also takes the time to write a post slamming Richard Delgado. Since I have expressed adoration for bordering on creepy obsession with Delgado (and his co-author/wife, Jean Stefancic), I feel compelled to offer at least a partial defense.

I should start by saying that despite what the above-linked post might have you believe, I don't think Delgado is perfect. In fact, I share many of Belle's particular discontents. His foray into the blogosphere (both in his guest-stint at BlackProf and his permanent position as advice columnist there) was a big disappointment. And while I admit to owning The Rodrigo Chronicles (Belle underestimates how many of them there are, by the way, there are at least 11 printed so far in various journals, collected in the book), and enjoying them immensely, his skill as a narrative author is passing at best. It can be overbearing, the characters' reactions often seem contrived, and that is a significant downside to the book.

At the same time, I think Delgado is a very important author, and I think Belle is slightly too quick to dismiss him based on only a subsection of his work. First, I'd note that the Rodrigo Chronicles are not the be-all end-all of Delgado. He's written plenty of other important scholarly works, some of which don't really include narrative at all, others which do but have it in the type of "separated" form that Belle claims to appreciate. One can hate all the Rodrigo articles, and still appreciate the contribution of Delgado's Imperial Scholar articles, Legal Storytelling for Oppositionists and Others, and many others. I think that while Rodrigo is obviously an important portion of Delgado's c.v., it isn't the whole and is in some sense an anomaly--he doesn't really write like that in any of his other pieces.

Also, and of more parochial concern, is Delgado's role in introducing me personally to the CRT movement. In a sense, it's almost an absurd happenstance that I am talking about this at all: my senior year of High School, I participated in a debate round where my opponent ran an anti-essentialism kritik against me. Despite being utterly demolished in the round (and thinking that he said it was an "anti-centralism kritik), I was intrigued. Somehow, I knew that "Critical Race Theory" had to do with post-modern political theory in general, and I ran a search for it on Amazon, where "Critical Race Theory: An Introduction" was first to come up.

This book was a life changer for me. It stopped my slow spiral into libertarianism, and helped reinvigorate my progressive ideals and pluralist spirit. It spoke to me in a way that few authors had. I've since read works by the authors Belle cites (Bell, Carbado, Cheryl Harris, Angela Harris, and Lawrence), and they are quite compelling. In fact, if anything I consider myself closer ideologically with Lawrence, at least, than Delgado. But none of them, I think, lays out the core issues as simply and as powerfully as Delgado does. I've personally recommended that book to some friends as the quick and dirty primer on CRT, and borrowed liberally from it in many more informal discussions. When I fail to bring a point across, the examples he gives unfailingly help illuminate them. For the non-initiate, this is critical.

Maybe for more advanced thinkers, this comes off as simplistic, and Delgado is akin to a favored tricycle that it's time to give up. But I think that we should give him more credit than that. Rodridgo may not be the world's gift to fiction. But it is not the antichrist either, and in any event Delgado's other scholarship is quite worthwhile in its own right.

Wednesday, March 22, 2006

There and Back Again

Okay, I'm off to Oregon until next Tuesday night! I'm actually picking up my new laptop before I leave (the old one fried), so I'll have it with me on the trip. But God knows if I'll have it up and running before I settle in Minnesota.

Posting will thus be sporadic at best until at least Tuesday night.

Have a great week!

Tuesday, March 21, 2006

Calm Down

The New York Times reminds us that, for Barack Obama, overly high voter expectations can be curse, because they're impossible to meet and ornery journalists start trying to dig out flaws so they can have a new story angle besides "Obama is the next Jesus." In other words, folks like me need to back off the constant Obama-worshipping, lest we sink his entire political career. If your expectations are low, they can be exceeded, and exceeding expectations is always impressive.

I'm reminded of an old Daily Show segment that ran before the Kerry/Bush debates, where both campaigns engaged in a battle to lower expectations. Bush's camp claimed that Kerry was "the greatest orator since Cicero" who should stomp Bush due to his mental retardation, and Kerry's camp responded that Bush was such a strong and convincing orator, that even he was going to vote for him.

In any event, I don't care how you spin it--Obama is something special. But for his benefit, I'll lay low for awhile until it's his time.

[H/T: Paul Butler]

Monday, March 20, 2006

The Televangelist Promise

A Muslim televangelist preacher is rapidly becoming one of the most popular voices for reform in the Muslim world.

Isn't it interesting how in the Muslim world, televangelists are the progressive ones? While in America, televangelists tend to occupy the farthest of the radical right fringe.

Interesting dynamic.

Dual Loyalties

From an email message sent to Michael Perry:
On Wednesday, March 1st, 2006, in Annapolis at a hearing on the proposed Constitutional Amendment to prohibit gay marriage, Jamie Raskin, professor of law at American University, was requested to testify.

At the end of his testimony, Republican Senator Nancy Jacobs said: "Mr. Raskin, my Bible says marriage is only between a man and a woman. What do you have to say about that?"

Raskin replied: "Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible."

The room erupted into applause.

Hoo-yah!

Drop Off

He still clocks in at a solid 58% approval rating, but South Dakota Governor Mike Rounds (R) clearly got hurt by the SD abortion ban. Approvals down 14%, disapprovals up 15%--all in one month. That stings.

Meanwhile, the poll figures for President Bush continue to be abysmal. He has a net positive approval rating in just seven states: Utah, Wyoming, Alabama, Idaho, Mississippi, Oklahoma, and Nebraska. He averages a negative 24% net rating across the 50 states. That also stings.

The poll desperately want to see is one measuring voter regret. It would ask who the respondents voted for. Then, it would ask them if they would have still voted for that person if the election were held today.

That would really show the measure of their discontent.

Just so everybody knows: My laptop is in the shop for repairs (I'm borrowing this one), and I'm going to a debate tournament on Wednesday. I won't be getting back to college until a week from tomorrow. So I'll probably be mostly incommunicado over that period.

The Privileged Man's Guide to Life

Andrea Rubenstein has posted a very interesting outline for the majority set. It's entitled "How to be a Real Nice Guy," but I think it's better understood as a guideline for how people with privilege (Whites, Males, Christians, Heterosexuals, et al), should interact with those who don't. This is a topic that interests me, and I endorse most, but not all, of it. The blogosphere being what it is, I'll focus on my discontents, but don't let that mislead you--this is a valuable post and an important read.

My objection pops up along several of Ms. Rubenstein's points, but I think it can be grouped into a general point about intergroup relations. In several places, Rubenstein says (in so many words) that there are plenty of places in which to discuss "your" issues, so when interacting with minority groups, one should sit back and listen--hear their issues, concerns, opinions, and perspectives. I agree whole-heartedly that the minority voice is underserved and underheard in contemporary society--there aren't many soapboxes by which minority issues can get play amongst the mainstream. The problem is that I see a similar dearth of spaces to talk about how we interact together, across borders, as a community. In other words, the status quo already addresses "my" issues, and Rubenstein's plan would give space for "their" issues, but where is the dialogue on "our" issues--where minorities and majorities intersect?

This absence is important, and, I think, relatively unrecognized. We (by which I mean the majority) may, of course, discuss minorities in our own soapbox. But the opinions we express there and the information we gather there are qualitatively different than the insights and perspectives we'd synthesize in a truly multigroup discussion. This requires some tightrope walking--I don't want to make the discussion about me (there is indeed enough said about myself), but I do want to have at least some opportunity to discuss us. Any plan for majority/minority interaction that doesn't make some provision for the "inter" part of it is doomed to fail.

One might think that this synthesis will come naturally. Add the discourse about me, and the discourse about you, and you get "us." I don't think this is true. Look to academia. For decades now, we've adopted an academic model of ever-increasing specialization. Being a generalist is for chumps. Departments get smaller and smaller, articles become geared to an ever-shrinking pool of fellow travelers, trained in the (say) history of pre-Roman Iberian architecture. There is value to this, of course. But what we've discovered is that inter-disciplinary work can yield fascinating results. Think of what Jared Diamond has done, combining biology, genetics, history, and social science. I just took a whole class this last term entitled "Science & Society", exploring not how the two interacted, but how the two were inextricably intertwined. You can't understand either in isolation from the other. In other words, the product of a genuine intergroup dialogue is not the same as the product of the ingroup discourse and the outgroup discourse. If that's sounds familiar to leftist theorists, it should--it's closely related to the intersectionality hypothesis (the experience of, e.g., a black woman is not reducible to "woman" + "black").

The second issue I have is with the status of ingroup members in these conversations. I think there is a severe cognitive dissonance between what Rubenstein says our status is, and what ingroup perceive its status to be. She says, for example, that it is in fact okay for us to make mistakes, as long as we try and learn from them. But I think many ingroup members are under the distinct impression that one mistake can be fatal, and I think that folks versed in the literature of feminist, critical race, queer, and other related movements forget their own lessons when they dismiss these stories as a kind of "shrill craziness." Larry Summers, I think, might not be so quick to dismiss that some operate under a "one-strike, you're out" standard (recall that when he made his infamous "inherent ability" comment about women and math, Summers was summarizing other people's positions, not expressing his own, and that he promptly apologized when the uproar began). In Patricia Williams' superb book, "Seeing a Color-Blind Future: The Paradox of Race," she tells a story of just such a slip-up by a white friend, and her apology when it was pointed out. Williams uses the story to illustrate that a world of such apologies can be tiresome to those who constantly apologized too, and also that the apology that "she [the white woman] just didn't know" often comes off as a plea for Williams [the black woman] not to know either. However, in the midst of this critique, Williams stresses that she is not contesting the sincerity of the apology, "only its superficiality." But in her review of the book, Taunya Lovell Banks, another respected Critical Race Theorist at the University of Maryland, slams the white woman's "standard insincere apology." In other words, she takes Professor Williams' story, and replaces Williams' professed meaning with a contrary one of her own. In a paper I was writing, I rhetorically asked if this is how Professor Banks would treat a white student in her class: if she responded to a articulation of American racism by saying that "she just didn't know," would Professor Banks lambast her "insincere apology"? This is the fear the ingroups live in, and I think it's unfair to just assume they're hallucinating about its potency.

The point of all this is that there is a disjunction, I think, between how much forgiveness for errors that the minority group's say they are willing to give, and how much the ingroup members suspect they are likely to receive. In all likelihood, the chasm runs from both ends--minorities overestimate how forgiving they are, and majorities overestimate how much forgiveness they deserve. All of this, however, just plays into my prior plea for more intergroup dialogue, not less. We'll never bridge this gap without explicitly having a dialogue between the two camps. In isolation, the stories will never merge, and we'll never get anywhere.

Relatedly, ingroups have a right to know that in such conversations, they will not be ontologically wrong. Rubenstein says that when confronted by a member of an outgroup about one's behavior, the ingroup member should use the information to change his mind, not try to change the outgroup member's. I don't think it's fair to make that statement categorically. Simply put, it is quite possible that an ingrouper will be right about an issue, and an outgrouper will be wrong. There shouldn't be an obligation to accede to a viewpoint just because it's made from a disadvantaged person. The glaringly obvious issue for me is on Israel--if someone tells me that my support for Zionism makes me a racist, then you better be damn sure that I'm going to try and persuade them they're wrong. And I have every right to--differentiating my people's desire for full and equal membership in the international community in their native homeland from apartheid South Africa is crucial to my personhood and dignity as a human being. I think it is true that I should listen to such critiques with an open mind, and recognize that I may be hearing a perspective that I haven't heard before. But I can do that without having a prefigured opinion I have to come to. Besides, the standard is internally incoherent. If one black person tells me that my vocal opposition to affirmative action makes her feel like I think she doesn't belong at the university, and a second tells me that my now-vocal support of affirmative action makes her feel like a token at the university, I'm left without a platform to stand on. At some point, ingroups have to take stands--the litmus test should be hearing from other people, not agreeing with them. And of course, we all can learn from each other--the lessons a Palestinian could teach me about how the occupation negatively affects her life are undoubtedly many, as are the one's I could teach her about Jewish history, exile, oppression, and national yearning.

These suggestions shouldn't be seen as competitive with Ms. Rubenstein's, rather, they should be seen as to compliment it. I think that one can listen respectfully to minority perspectives, learn from them, agree with some parts of it, disagree with others, incorporate one's own perspective, and do it all civilly and productively, all at the same time. And I believe that we can do it now. In other words, I believe we can have a conversation. Let's start one.

[H/T: Alas, a Blog]

Sunday, March 19, 2006

Blunt Instruments

Not to go on a Powerline spree (that feels like it should be a pun, but I don't think it is), but I can't resist noting this incredible display of John Hinderaker's problem solving mentality. Referring to the group of Christian extremists who are protesting the funerals of American soldiers because our country encourages homosexuality, and a Minnesota law targetted at them, John laments
our culture's obsession with legal remedies. As a lawyer, I suppose I shouldn't complain; but as a citizen, I think it's ridiculous....One of the basic problems in our society is that nearly all informal sanctions have been forfeited, so that there is hardly any middle ground between passive acceptance of antisocial behavior and a felony prosecution. Legislation and criminal prosecution are blunt instruments that cannot be brought to bear against every deviancy that may arise.

I'm actually inclined to agree here. Though I respect the Court's key role in protecting my rights as a person, it should not be our first resort. Alternative problem solving mechanisms--mediation, arbitration, or even simple conversations between persons of competing views--all are badly underutilized in our current state.

So what is John's non-legal proposal for dealing with these abhorrent characters?
If a bunch of crazies show up waving signs at a funeral, the appropriate course is for an able-bodied man--there should be at least one at any funeral--to take a sign and break it over the ringleader's head.

Ah, yes. The "caveman" approach.

Blunt instruments indeed.

Outside Sources

John Hinderaker severely criticizes Justice Ruth Bader Ginsburg's defense of citing foreign law in American court opinions. My old mentor, Paul Mirengoff, echoes the claim and says that Ginsburg's actions (on the Court, presumably, not the speech itself) warrant impeachment.

In response, Jim Lindgren points to a new paper by Stephen Calabrisi and Stephanie Zimdahl on the history of foreign law citation in American Supreme Court opinions. To put it bluntly, it's a tradition that goes back to the early 19th century and not some new invention by liberal demons. So if we're talking about impeaching Ginsburg for citing to it, then we should be engaging in similar condemnation of Justices Joseph Story and Felix Frankfurter, two of the Justices Calabrisi and Zimdahl identify as most likely to have used foreign law in their opinions. This is doubly ironic, because Justice Frankfurter is the modern Godfather of the "judicial restraint" school of judicial interpretation--the very school that Mr. Mirengoff claims to want more of in our court system (of course, Kelo proved that judicial restraint, like all other legal theories popular on the political right, is only a conservative issue when it leads to conservative ends).

Calabrisi and Zimdahl do not explicitly endorse the citation to foreign law. Rather, they say that the case for it's use is strongest in 4th and 8th amendment cases, amendment's whose language includes vague and socially expansive terms like "unreasonable," "cruel," and "unusual." By contrast "citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence [v. Texas], or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States."

Calabrisi and Zimdahl are both primarily conservative originalists, hence the importance to them and other fellow travelers of the long-standing tradition of citing to foreign law. To people who think the longevity of a rule of interpretation strongly relates to its merit, this fact should carry much weight. I, however, am not an originalist (see, e.g., here, here, and here), and thus cannot fall depend on the long tradition of foreign law citation to defend the practice. To quote from Justice Oliver Wendell Holmes: "It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV...and the rule simply persists from blind imitation of the past." So what's my perspective on foreign law?

I'd agree with Zimdahl and Calabrisi that foreign law is most applicable in cases where the constitutional text refers to vague and subjective value judgments (such as the 4th and 8th amendments), although I suspect I'd find more use for it in other opinions than either of them do. However, we should remember that the case where (to me at least) the clamor against foreign law citation really took off was Roper v. Simmons--an 8th amendment case. So even if you're more of Calabrisi-type than a Schraub acolyte, it should be somewhat clear that the latest batch of fury is motivated less by legal reasoning and more by partisan point-scoring. I'd probably go further than they would in asserting that in such cases, opinions from other places are crucial to our understanding of the clauses. You can't undertake an analysis of whether or not a punishment is "unusual" or not without at least noting that our country is one of only four that partakes in it--at least, not without distorting the constitutional text beyond recognition.

But back to the specific question. In the majority of situations, I think that considering foreign law is as useful as any other secondary source in crafting an opinion. Sure, a Swiss justice had no role in writing or ratifying the constitution? So what? Neither did nearly any commentator who wrote nearly any secondary source. A law review article can still be useful even if it was written post 1789--and citing one shouldn't be an impeachable offense. To be fair, the Supreme Court might take precisely this route under warrant--not the impeachment part, but the part about not citing to secondary sources. David Barron made this point to much chatter, although I think the jury is still out. But I think such a stance would be counter-productive to the goal of increased judicial accountability--we can't vote judges out, but we can at least expect them to pay attention to the recent scholarly commentary on their work and past work on parallel issues. A sequestered court is an unaccountable court.

Moreover, I think there are a lot of situations where a diversity of perspectives should be at least examined in order to answer a legal question. Calabrisi and Zimdahl say that foreign law is not particularly useful in determining whether or not a given right is "deeply rooted in our nation's traditions," a key standard for determining whether or not it is a fundamental right covered by the 9th amendment. I'd be inclined to agree. But what about whether it is "implicit in the concept of ordered liberty," another crucial 9th amendment test? There, foreign law and opinion (actually, the whole field of philosophy in general), strikes me as quite relevant to the question. And to answer John's objection that citation to foreign law can just as easily lead to the influence of regressive Muslim state's versus progressive European ones, I think the answer is quite simple: there is no "liberty," ordered or otherwise, in these countries' legal system. Hence, their contribution is of little use to us.

In sum, as long as the foreign law is treated as advisory, not binding, I see no problem in seeing what other commentators had to say about the difficult questions that the Supreme Court has to face. Interpretation is a difficult endeavor--rarely is it as cut-and-dry as the armchair pundits would make it out to be. I would be hesitant, to say the least, of depriving the current manifestation of Justices a tool that they've used for hundreds of years to aid their decisions, solely on the ground that we dislike what they're saying now.