Kevin Drum offers a theory that the internet drives increases of cognitive inequality. Put simply, "the internet makes dumb people dumber and smart people smarter." (the post was from 2012, but I came across it today). Basically, his point is that the internet makes available a massive glut of information -- accurate and inaccurate -- to the everyday population. If you know how to put in proper searches and have decent source-appraisal and critical-reasoning skills, you can become much, much smarter. If you lack these attributes, by contrast, you'll be a lot dumber.
This theory makes some sense to me, but I'm also interested in how it lines up with some of the motivated cognition research I've become increasingly interested in. An important part of that research is that we selectively interpret the information we receive -- and the information sources we pursue -- so that they are in harmony with our preexisting beliefs. So liberals avoid or discredit Fox, and conservatives do the same to MSNBC. And the thing is, it is very hard to disentangle that sort of motivated reasoning from critical appraisal. If I scroll over a link, see it's going to Breitbart, and say "pssh, obviously I don't need to read that tripe," am I wisely ignoring an incredible source, or am I avoiding information that might disrupt my carefully crafted belief structure? The answer is almost certainly some of each; but how much of each is difficult to determine. Indeed, how do I know that Breitbart lacks credibility? For the most part, it's because (a) a large quantity of sources within my epistemological network say it is and (b) from experience I know that their statements clash pretty consistently with my ideological priors. How is that different from motivated cognition? And we can run this in reverse, of course (witness the worries about "epistemic closure" on the right, or take it even further afield -- how do I know to dismiss conspiracy theories? I never landed on the moon; ultimately, I'm making a decision that NASA and like sources are more credible than expose-the-hoax.angelfire.com based on surprisingly thin gruel.
Ultimately, as depressing as Drum's hypothesis seems to be, I want to believe it is right because it indicates that education and knowledge can nudge us in the right direction of being better thinkers. But people are notoriously difficult to persuade, even when they're wrong. It is possible that the internet doesn't so much further cognitive inequality as it furthers cognitive divergence -- sending each of us down a personalized rabbit hole of groupthink and confirmation bias wherein every thought we think (right or wrong) can find a network of supporting architecture immunizing it from effective critique.
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Saturday, December 27, 2014
Thursday, December 25, 2014
"Jews Lose": The UK Case
I have periodically remarked upon the "Jews lose" attribute of American free exercise doctrine -- namely, that across the entire history of the First Amendment (1789 - present), Jews have never won a free exercise (or RFRA) case in front of the United States Supreme Court. Indeed, religious minorities in general fare exceptionally poorly when presenting such claims before the highest court in the land. The only cases I can think of where a non-Christian claimant has successfully won a religious accommodation claim before the high court are Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (the Santeria religion in Hialeah fuses elements of Christianity with native African and Caribbean religions). For the most part, though, Jews (and other religious minorities) lose.
I'm less familiar with the contours and history of anti-discrimination law in the UK. Still, I was surprised (and, on reflection, am surprised that I was surprised) to find out that Jews have never won a reported discrimination (race relations) case against non-Jewish defendants in the history of the United Kingdom (at least dating from the inception of modern anti-discrimination law). The only successful discrimination prosecution by a Jewish plaintiff was a "Jew-on-Jew" case in 2009 (concerning matrilineal Jewish lineage as an admissions requirement for a Jewish school). The linked book is Didi Herman's An Unfortunate Coincidence: Jews, Jewishness, and English Law, which looks absolutely fascinating -- unfortunately, I've only been able to get a taste of it through google books' limited preview (this review by Martin Lockshin provides a decent summary). Herman argues that not only do Jews consistently lose in UK courts, but the court when dealing directly with Jews treat both the people and the community with disdain bordering on outright antipathy. Anyone familiar with the Ronnie Fraser ruling is intimately familiar with the form.
One interesting element I was able to glean from the bits I read, however, is that the generally shabby treatment of British Jews in the courts is not just unrecognized by British society; they pretty much assume the opposite. Protection of Jews is viewed as a model through which other groups also can make claims; so one sees arguments of the form "we protect Jews, so why not also protect Sikhs, or Muslims, in the same [assumed to be robust] way?" Protections for other groups are expanded on the presumption that they're getting the same thing as Jews, when in reality those decisions seem to be considerably more expansive than what Jews actually receive. I obviously favor giving both Muslims and Sikhs robust anti-discrimination protection. But the actual practice here is problematic -- it operates under a presumption that Jews represent an anti-discrimination "have" that is unexamined and apparently unfounded. It is axiomatic that Jews are protected -- perhaps too much so, perhaps we are too quick to indulge them when they "cry anti-Semitism". Viewing Jews as the quintessential protected group, courts that in fact consistently deny Jews protection at the level of particular cases see themselves as breaking from the script, rather than repeating a continuous and damaging pattern.
I'm less familiar with the contours and history of anti-discrimination law in the UK. Still, I was surprised (and, on reflection, am surprised that I was surprised) to find out that Jews have never won a reported discrimination (race relations) case against non-Jewish defendants in the history of the United Kingdom (at least dating from the inception of modern anti-discrimination law). The only successful discrimination prosecution by a Jewish plaintiff was a "Jew-on-Jew" case in 2009 (concerning matrilineal Jewish lineage as an admissions requirement for a Jewish school). The linked book is Didi Herman's An Unfortunate Coincidence: Jews, Jewishness, and English Law, which looks absolutely fascinating -- unfortunately, I've only been able to get a taste of it through google books' limited preview (this review by Martin Lockshin provides a decent summary). Herman argues that not only do Jews consistently lose in UK courts, but the court when dealing directly with Jews treat both the people and the community with disdain bordering on outright antipathy. Anyone familiar with the Ronnie Fraser ruling is intimately familiar with the form.
One interesting element I was able to glean from the bits I read, however, is that the generally shabby treatment of British Jews in the courts is not just unrecognized by British society; they pretty much assume the opposite. Protection of Jews is viewed as a model through which other groups also can make claims; so one sees arguments of the form "we protect Jews, so why not also protect Sikhs, or Muslims, in the same [assumed to be robust] way?" Protections for other groups are expanded on the presumption that they're getting the same thing as Jews, when in reality those decisions seem to be considerably more expansive than what Jews actually receive. I obviously favor giving both Muslims and Sikhs robust anti-discrimination protection. But the actual practice here is problematic -- it operates under a presumption that Jews represent an anti-discrimination "have" that is unexamined and apparently unfounded. It is axiomatic that Jews are protected -- perhaps too much so, perhaps we are too quick to indulge them when they "cry anti-Semitism". Viewing Jews as the quintessential protected group, courts that in fact consistently deny Jews protection at the level of particular cases see themselves as breaking from the script, rather than repeating a continuous and damaging pattern.
New Year's Resolutions: 2015
Bender: Isn't it time you gave up all hope of ever improving yourself in any way?
Fry: I know I should but I just can't.
Another year, another iteration of my New Year's Resolutions. As always, we first review how I did over the previous year:
Met: 1, 4, 5, 7, 8 (I was having trouble confirming if I read all of any of the academic books I perused this year, but then I remembered the pulp Star Wars fiction I read on the plane ride to Berkeley. Count it!), 10, 11, 12, 13
Missed: 6 (that's on you guys), 9.
Pick 'em: 2, 3, 14 (I'm looking forward to it right up until about August, where things get very hazy).
Again, not bad! Better than I'd have expected, frankly. I think I do a good job picking resolutions I'm likely to meet. With respect to #3, I don't know if I'm being too harsh or too charitable vis-a-vis my knowledge of Indian law and energy law.
But ever forward we go! What are the goals for next year?
(1) Publish, or have accepted for publication, two articles (I'm feeling ambitious). (Met -- try four articles!)
(2) Have a solid plan for remaining in academia for the foreseeable future. (Met)
(3) Keep in touch with academic persons (not counting my advisors or former colleagues). (Pick 'em)
(4) Finish a complete draft of Dismissing Discrimination. (Met -- different title)
(5) Get a "ShoStreak" of at least 15. (Missed -- peaked at 11)
(6) Make a "move towards the basket" in terms of starting a book project. (Pick 'em)
(7) Eat at a steakhouse in the Bay Area. (Met)
(8) Successfully integrate the updates to my Constitutional Law course. (Met)
(9) Attend (or be scheduled to attend) an academic conference. (Met -- by the barest of technicalities)
(10) Take steps towards building a community of scholars interested in anti-Semitism issues. (Pick 'em)
(11) Get more pants that fit. (Pick 'em)
(12) Find a new (as in not-watched-by-us, not necessarily currently airing) television show to watch. (Met)
(13) Have positive interactions with a supermajority of the Public Law workshop attendees. (Met)
(14) Have a (medical) check-up. (Met)
Well, I think that's a good set. Wish me luck, and a happy new year to all!
Fry: I know I should but I just can't.
Another year, another iteration of my New Year's Resolutions. As always, we first review how I did over the previous year:
Met: 1, 4, 5, 7, 8 (I was having trouble confirming if I read all of any of the academic books I perused this year, but then I remembered the pulp Star Wars fiction I read on the plane ride to Berkeley. Count it!), 10, 11, 12, 13
Missed: 6 (that's on you guys), 9.
Pick 'em: 2, 3, 14 (I'm looking forward to it right up until about August, where things get very hazy).
Again, not bad! Better than I'd have expected, frankly. I think I do a good job picking resolutions I'm likely to meet. With respect to #3, I don't know if I'm being too harsh or too charitable vis-a-vis my knowledge of Indian law and energy law.
But ever forward we go! What are the goals for next year?
(1) Publish, or have accepted for publication, two articles (I'm feeling ambitious). (Met -- try four articles!)
(2) Have a solid plan for remaining in academia for the foreseeable future. (Met)
(3) Keep in touch with academic persons (not counting my advisors or former colleagues). (Pick 'em)
(4) Finish a complete draft of Dismissing Discrimination. (Met -- different title)
(5) Get a "ShoStreak" of at least 15. (Missed -- peaked at 11)
(6) Make a "move towards the basket" in terms of starting a book project. (Pick 'em)
(7) Eat at a steakhouse in the Bay Area. (Met)
(8) Successfully integrate the updates to my Constitutional Law course. (Met)
(9) Attend (or be scheduled to attend) an academic conference. (Met -- by the barest of technicalities)
(10) Take steps towards building a community of scholars interested in anti-Semitism issues. (Pick 'em)
(11) Get more pants that fit. (Pick 'em)
(12) Find a new (as in not-watched-by-us, not necessarily currently airing) television show to watch. (Met)
(13) Have positive interactions with a supermajority of the Public Law workshop attendees. (Met)
(14) Have a (medical) check-up. (Met)
Well, I think that's a good set. Wish me luck, and a happy new year to all!
Tuesday, December 23, 2014
The State Supreme Court Pipeline
Noting several recent appointees to the California Supreme Court who seem like potential future SCOTUS nomineees, Orin Kerr asks why we don't see this more often -- "this" being the use of a state supreme court as a farm system for the highest courts. The appeal of the route makes some sense -- it provides valuable judicial experience while not being hamstrung by Senate gridlock.
One good explanation, which Kerr floats, is that many state court positions are elected rather than appointed. I have two more:
(1) Not all state supreme courts are created equal. It seems to me that nominating a judge from the California Supreme Court would be viewed qualitatively differently than nominating someone from the North Dakota Supreme Court. The high courts of larger states probably would be seen as sufficiently prominent so as to render their justices credible nominees. It might not wholly be a function of size -- certain state high courts have outsized reputations for quality whereas other states ... lag ... but I don't think that every state high court would be considered suitable. Kerr gives the example of David Souter, who spent most of his judicial career in the New Hampshire state court system, but recall that he was first appointed to the First Circuit before being elevated to the Supreme Court. My understanding is that the former appointment was done because of a sense that it would be faintly ridiculous to pull someone from a tiny northeastern state and place him on the highest court in the land. And while his tenure on the First Circuit was brief, it does seem to be the case that even a quick stop on an appellate court is considered sufficient to wash away any "viability" doubts (see also: John Roberts).
(2) For the state court pipeline to work, a lot of pieces need to fall into place at once. Basically, you need a superstar candidate who lives in a viable state that has (at the very least) an ideologically-amenable governor who either personally harbors near-term presidential ambitions or is willing to carry water for someone else who does. The example of David Stras in Minnesota is a good one, but also demonstrates how the stars have to align -- if Stras had been on the University of Illinois faculty instead of the University of Minnesota, or T-Paw had not been elected governor of what remains a blue-leaning state, then that route is closed off. The federal system is much more flexible -- if one really wants to nominate someone, there will probably be a vacancy on the relevant circuit court or the D.C. Circuit, or a district court in a pinch, no matter what state they reside in. And there's no agency problem because the person looking to seed the field already is President.
Of course, it could be argued that (a) every governor imagines themselves to be President one day and (b) if Stras isn't around, they'd just pick someone else. But my sense is that only a few true superstars are thought of as SCOTUS candidates before they ever get into a relatively high-profile judicial role. It's probably not the case that Minnesota had infinite David Stras-calibur candidates for a future SCOTUS nomination waiting in the wings. Rather, I suspect that at any given point there are a handful of Stras types out there waiting in the wings, who may or may not reside in states that have the right combination of factors to make a state court appointment a viable waystation to the Supreme Court. Outside those few cases, our thoughts on viable SCOTUS personnel tend to focus on folks who already are sitting on a major court. Sometimes, like Stras or Goodwin Liu, they get lucky. But for the most part, the federal system just offers more opportunities and a tighter nexus to put someone in the Supreme Court conversation.
One good explanation, which Kerr floats, is that many state court positions are elected rather than appointed. I have two more:
(1) Not all state supreme courts are created equal. It seems to me that nominating a judge from the California Supreme Court would be viewed qualitatively differently than nominating someone from the North Dakota Supreme Court. The high courts of larger states probably would be seen as sufficiently prominent so as to render their justices credible nominees. It might not wholly be a function of size -- certain state high courts have outsized reputations for quality whereas other states ... lag ... but I don't think that every state high court would be considered suitable. Kerr gives the example of David Souter, who spent most of his judicial career in the New Hampshire state court system, but recall that he was first appointed to the First Circuit before being elevated to the Supreme Court. My understanding is that the former appointment was done because of a sense that it would be faintly ridiculous to pull someone from a tiny northeastern state and place him on the highest court in the land. And while his tenure on the First Circuit was brief, it does seem to be the case that even a quick stop on an appellate court is considered sufficient to wash away any "viability" doubts (see also: John Roberts).
(2) For the state court pipeline to work, a lot of pieces need to fall into place at once. Basically, you need a superstar candidate who lives in a viable state that has (at the very least) an ideologically-amenable governor who either personally harbors near-term presidential ambitions or is willing to carry water for someone else who does. The example of David Stras in Minnesota is a good one, but also demonstrates how the stars have to align -- if Stras had been on the University of Illinois faculty instead of the University of Minnesota, or T-Paw had not been elected governor of what remains a blue-leaning state, then that route is closed off. The federal system is much more flexible -- if one really wants to nominate someone, there will probably be a vacancy on the relevant circuit court or the D.C. Circuit, or a district court in a pinch, no matter what state they reside in. And there's no agency problem because the person looking to seed the field already is President.
Of course, it could be argued that (a) every governor imagines themselves to be President one day and (b) if Stras isn't around, they'd just pick someone else. But my sense is that only a few true superstars are thought of as SCOTUS candidates before they ever get into a relatively high-profile judicial role. It's probably not the case that Minnesota had infinite David Stras-calibur candidates for a future SCOTUS nomination waiting in the wings. Rather, I suspect that at any given point there are a handful of Stras types out there waiting in the wings, who may or may not reside in states that have the right combination of factors to make a state court appointment a viable waystation to the Supreme Court. Outside those few cases, our thoughts on viable SCOTUS personnel tend to focus on folks who already are sitting on a major court. Sometimes, like Stras or Goodwin Liu, they get lucky. But for the most part, the federal system just offers more opportunities and a tighter nexus to put someone in the Supreme Court conversation.
Sunday, December 21, 2014
From Individuals to Institutions and Back Again
The "execution-style" killing of two NYPD police officers, apparently in retaliation for the Eric Garner and Michael Brown killings, has shaken up the emergent conversation about police violence. And reasonably so -- after all, it was a shockingly brutal slaying by someone who claimed to be acting under the same banner as that motivating the protesters from Ferguson to New York. And so perhaps it is unsurprising that we fall into familiar patterns, with the protester groups denouncing the killing and labeling it an isolated incident and police unions responding Mayor De Blasio and the protester community has blood on its hands.
In some ways, this conversation is very familiar, but in others it is quite different. We have not seen, to my knowledge, any serious efforts to dig up dirt on the slain NYPD officers -- use-of-force complaints or litigation records. Nor have we seen much in the way of deflecting the motives of the shooter, Ismaaiyl Brinsley. While Brinsley had posted messages on instagram indicating a desire to kill cops, he also shot his girlfriend in Baltimore earlier that day and later killed himself. One could argue that he wasn't the paradigm case of a calculating, rational actor, but rather a disturbed man with possible mental issues. But we haven't talked about that either.
This is not a complaint. This is a compliment. At the individual level, the relevant point of analysis is that two public servants were brutally murdered on the street, and that's horrifying. At the individual level, this is not the time for apologias for the shooter or insinuations that the victims deserved their fates. The way we're talking about this case, on the individual level, is how it should be. It's how it should be for all persons who are killed without justification.
At the institutional level, things grow more complicated. A very proper moral asymmetry, at the individual level, can't work when we try to situate this shooting as part of a broader social problem. The police union's hypothesis -- that these killings are attributable to efforts by the Mayor and other agitators to rile up community sentiment against the police -- is a hypothesis; specifically, it is a hypothesis about what caused the degradation in the relationship between the community and the police. It is not the only hypothesis on that score. At the institutional level, it is just valid (and far more likely) that it is police behavior that is the source of this mistrust and rage. The people aren't being whipped up by demagogues to feel thoughts not their own. This is organic.
This hypothesis doesn't justify, in any way, the shooting. To be crystal clear: even if it is the case that unjustifiable police behavior caused the sense of rage that contributed to this shooting, it would not mean that the shooting was justified. Normative and structural explanations are not the same thing; the move from individuals to institutions alters, among other things, what counts as victim-blaming. One can leverage our rightful aversion to victim-blaming to ends both good and ill; using it to close off important angles of inquiry falls into the latter camp. Realistically, the individual wrongdoer isn't necessarily going to have much bearing on how institutions should alter their behavior.
In any event, obviously there is a disjuncture here, between a populace that views itself as being preyed on by those paid to protect them, and a police force that thinks the community doesn't understand the realities of being a police officer. It's been said before, but it should be said again: Being a police officer is hard. It's hard for the very obvious reason that it requires the officers to put themselves in peril and to commit (in the words of a police chief I worked with back when I was practicing) "to run towards the danger." But that undersells the difficulty considerably, because part of a police officer's job is to do all that while still being trusted by their community. Being a cop would no doubt be easier -- albeit not easy -- if one could make arrests and conduct patrols without having to care about how one was perceived by the neighborhood. But that's not the way it works. If the people don't view the police as being on their side, then the police are doing a bad job no matter how many arrests they make or what the crime stats say. A community that feels constantly terrorized by their local police department is not being effectively policed even if the murder rate has flatlined.
Are people sometimes unfair in their appraisals? Sure they are. But "solely engaging with fair, high-minded people" isn't really part of a cop's job description either. The population is what it is; the burden is on the police to act in accordance with how the community wants the police to act.
Fixing this problem isn't about finding bad apples or folks with malign motives. When people say the problem isn't with a few bad cops, they're not (or at least shouldn't be) saying "because its about a lot of bad cops." They're saying that the search for bad cops -- in the sense of persons who deliberately and consciously abuse their authority -- is a misguided one. Those people exist, but they don't exhaust the problem, because the problem goes beyond finding some stereotypical Bull Connor types. Good people, who think they're doing good, can still be bad cops to the extent that the system of policing doesn't view its perception within the community as one of its metrics for success. That a person fails at their job doesn't make them a bad person, but neither does them not being a bad person mean they're a success. Being trusted by their community shouldn't be some bonus goal attained by the very best police departments. It is their job, as much of their job as putting away bad guys. If the community doesn't trust the police, then the police are failing at their most fundamental duty. It's as simple as that.
In some ways, this conversation is very familiar, but in others it is quite different. We have not seen, to my knowledge, any serious efforts to dig up dirt on the slain NYPD officers -- use-of-force complaints or litigation records. Nor have we seen much in the way of deflecting the motives of the shooter, Ismaaiyl Brinsley. While Brinsley had posted messages on instagram indicating a desire to kill cops, he also shot his girlfriend in Baltimore earlier that day and later killed himself. One could argue that he wasn't the paradigm case of a calculating, rational actor, but rather a disturbed man with possible mental issues. But we haven't talked about that either.
This is not a complaint. This is a compliment. At the individual level, the relevant point of analysis is that two public servants were brutally murdered on the street, and that's horrifying. At the individual level, this is not the time for apologias for the shooter or insinuations that the victims deserved their fates. The way we're talking about this case, on the individual level, is how it should be. It's how it should be for all persons who are killed without justification.
At the institutional level, things grow more complicated. A very proper moral asymmetry, at the individual level, can't work when we try to situate this shooting as part of a broader social problem. The police union's hypothesis -- that these killings are attributable to efforts by the Mayor and other agitators to rile up community sentiment against the police -- is a hypothesis; specifically, it is a hypothesis about what caused the degradation in the relationship between the community and the police. It is not the only hypothesis on that score. At the institutional level, it is just valid (and far more likely) that it is police behavior that is the source of this mistrust and rage. The people aren't being whipped up by demagogues to feel thoughts not their own. This is organic.
This hypothesis doesn't justify, in any way, the shooting. To be crystal clear: even if it is the case that unjustifiable police behavior caused the sense of rage that contributed to this shooting, it would not mean that the shooting was justified. Normative and structural explanations are not the same thing; the move from individuals to institutions alters, among other things, what counts as victim-blaming. One can leverage our rightful aversion to victim-blaming to ends both good and ill; using it to close off important angles of inquiry falls into the latter camp. Realistically, the individual wrongdoer isn't necessarily going to have much bearing on how institutions should alter their behavior.
In any event, obviously there is a disjuncture here, between a populace that views itself as being preyed on by those paid to protect them, and a police force that thinks the community doesn't understand the realities of being a police officer. It's been said before, but it should be said again: Being a police officer is hard. It's hard for the very obvious reason that it requires the officers to put themselves in peril and to commit (in the words of a police chief I worked with back when I was practicing) "to run towards the danger." But that undersells the difficulty considerably, because part of a police officer's job is to do all that while still being trusted by their community. Being a cop would no doubt be easier -- albeit not easy -- if one could make arrests and conduct patrols without having to care about how one was perceived by the neighborhood. But that's not the way it works. If the people don't view the police as being on their side, then the police are doing a bad job no matter how many arrests they make or what the crime stats say. A community that feels constantly terrorized by their local police department is not being effectively policed even if the murder rate has flatlined.
Are people sometimes unfair in their appraisals? Sure they are. But "solely engaging with fair, high-minded people" isn't really part of a cop's job description either. The population is what it is; the burden is on the police to act in accordance with how the community wants the police to act.
Fixing this problem isn't about finding bad apples or folks with malign motives. When people say the problem isn't with a few bad cops, they're not (or at least shouldn't be) saying "because its about a lot of bad cops." They're saying that the search for bad cops -- in the sense of persons who deliberately and consciously abuse their authority -- is a misguided one. Those people exist, but they don't exhaust the problem, because the problem goes beyond finding some stereotypical Bull Connor types. Good people, who think they're doing good, can still be bad cops to the extent that the system of policing doesn't view its perception within the community as one of its metrics for success. That a person fails at their job doesn't make them a bad person, but neither does them not being a bad person mean they're a success. Being trusted by their community shouldn't be some bonus goal attained by the very best police departments. It is their job, as much of their job as putting away bad guys. If the community doesn't trust the police, then the police are failing at their most fundamental duty. It's as simple as that.