Saturday, February 10, 2018

"Talking to Minorities? Oooh... That's a Censorship."

If you're thinking that his musings are going to be an uncreative recycling of greatest-hits complaints about out-of-control student lefties utterly unmoored from any actual account of contemporary campus life, well, you'd be mostly right. 

We do get obligatory swipes at "microaggressions", and fury at accused sexual assailants being adjudicated under the exact same standard of proof they'd encounter were they sued in court (and a far more protective standard than they'd be entitled to in the workplace -- which is to say, there is one), and no less than three references to "cultural Marxism," which is always a good signal to turn one's ears off (on a New York Times editor's ambitions to be "intersectional", he writes aghast: "Does she understand that the very word intersectional is a function of neo-Marxist critical race theory?" Does he understand how many Marxists -- "neo-" or otherwise -- would choke to hear that?). 

Thankfully, Sullivan spares us a literal appeal to the First Amendment, but his invocations of its "spirit" appear to collapse "censorship" into "outgroups publicly disliking what I have to say", and delegitimizing their temerity is more or less the core thesis of the argument. Free exchange of ideas indeed.

But I confess that Sullivan did introduce me to one element of PC-culture that was genuinely new to me. These were the "sensitivity readers", by whom Sullivan tells us "Books are censored in advance ... to conform with 'social justice' protocols." 

Goodness, that sounds positively awful! But fortunately, Sullivan provided a link to educate us on the contours of this new threat. And there, we encountered a truly harrowing tale: a young-adult author who ... voluntarily reached out to a readers from a community she was writing about to elicit their reactions on her draft.* Yes, we've finally reached the stage where even speaking to outgroups is a form of "censorship". How indeed could the free exchange of ideas survive such terrors like ... talking to the sort of people you're writing about? (To be fair to Sullivan, there's an element of self-interest in play here: one highly doubts any of his ideas could survive the encounter).

There's something to be said about cultivating a spirit of open inquiry that goes beyond opposing de jure censorship. It should be obvious that "speaking with people different from yourself and modifying your views in the wake of the encounter" has very little to do with that spirit. But the larger problem writers like Sullivan obstinately fail to grasp is that part of open inquiry includes considering whether our positions or ideologies create or perpetuate injustices (whether against socially-identifiable outgroups or anyone else). If censorship can exist beyond the formal power of the state and includes leveraging social power to preemptively prevent certain views from being heard, than there's almost certainly no more committed censor in Sullivan's column than Sullivan himself.

* Admittedly, the article indicates that sometimes "sensitivity readers" are not hired directly by authors but rather provided by the publishing house. I can sympathize with how this may feel like "censorship" to a writer, but in our more sober moments we tend to call it by the more prosaic name of "editing".

Tuesday, February 06, 2018

What's In Peer Review For Me?

UCLA Law Professor Stephen Bainbridge continues to decline peer review requests from law reviews (for friends in different disciplines, law is unique in that nearly all of our scholarly journals are run by law students -- up to and including article selection. A few top journals have started to move towards a "semi-" peer review system where they solicit comments from outside academic reviewers, typically to supplement their own internal deliberations. I give a qualified defense of the law review system here). This is a blast in the past for me, as Bainbridge's initial broadside came against the University of Chicago Law Review shortly after I left that august institution (see my guarded comments here).

Bainbridge has several reasons for not participating, but he devotes an extended amount of time to a discussion of self-interest, featuring an guest appearance from Adam Smith:
Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.
Actually, this made me think of one reason someone in Bainbridge's position might want to participate in peer review: to influence the window of prestigious legal scholarship in a direction more amenable to his scholarship (and more generally, ideological predilections).

It is a common complaint of conservatives in academia that one barrier to their success is the hammerlock the left-wing majority has over article selection -- supposedly elevating mediocre (but ideologically congenial) leftist scholarship while knocking out good conservative contributions. I don't know if Bainbridge feels this way about the areas he writes in (corporate law), but presumably even shorn of a partisan valence Bainbridge has a vested interest in facilitating a match between scholarship is thinks is actually good and that which deemed "good" via the signal of elite article placement. At the margins, this could help in quite directly (by making his own scholarship more closely resemble that which is considered to be cutting edge), and at the very least it offers a benefit to his ideological school (to the extent he cares about such things). When Bainbridge declines to review articles for top law journals, the reviewer they replace him with may be one with very different views on what makes for a good corporate law piece. The net effect will be to push the contours of well-regarded scholarship in his discipline away from Bainbridge's preferences.

Of course, this sort of analysis is another way of saying that "self-interest" -- defined broadly enough -- can include a whole host of "good for the profession" (or community, or society) values. But that seems to reflect a sociological observation that those most keen on quoting Adam Smith are often those most blind to that sort of "self-interest". If conservatives decline, on grounds of "self-interest", to partake in "selfless" acts of professional courtesy like providing peer reviews, and liberals -- more amenable to doing things for good of the community -- take their place, well, each may reap what they sow, and the corresponding ideological state of "elite" scholarship perhaps shouldn't surprise us.

Monday, February 05, 2018

Anyone Can Be "Not Racist" To Someone (With Bonus Right/Libertarian Intercession!)

After viciously beating an African-American man in an Iowa bar,  Randy Joe Metcalf was convicted of a federal hate crime and sentenced to 10 years in prison. In relevant part, the federal statute says that "[w]hoever . . . willfully causes bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person . . . shall be imprisoned not more than 10 years, fined in accordance with this title, or both[.]"

The evidence surrounding the "because of" race element of the crime against Metcalf was substantial (and -- fair warning -- quite graphic). During the night of the attack (and into the following day), witnesses heard or saw Metcalf:

  • Brag about burning crosses in front of an African-American family's home.
  • Tell the bar owner "I hate fucking niggers."
  • Show off a tattoo of a swastika to said bar owner and another bar patron while saying "that's what I'm about."
  • Call the friends of the African-American man whom he'd later attack "nigger lovers" and "nigger loving cunts."
  • Exclaim, in the course of attacking the man, "fucking nigger!" and "die nigger!"
  • Tell a friend the following day that "the nigger got what he had coming to him."
What was Metcalf's main factual defense at trial?

That he wasn't racist. And indeed, the man with the swastika tattoo who savagely beat a man while hurtling racial slurs called seven witnesses who were prepared to testify that he was in no way a racist.

Un(?)surprisingly, the jury didn't buy it, and voted to convict. And the Eighth Circuit just affirmed that conviction, so it looks like Metcalf will spending quite some time in prison.

That was all I initially planned to write. But while rereading the case for this post, I came across another interesting tidbit: Metcalf had some powerful right-wing/libertarian allies filing amicus briefs on his behalf. The Cato Institute, the Reason Institute, The Individual Rights Foundation (an arm of the David Horowitz Freedom Center), the Center for Equal Opportunity, and two right-wing appointees to the United States Civil Rights Commission (Gail Heriot and Peter Kirsanow) all interceded to argue that the relevant provision of the federal hate crimes statute is unconstitutional as in excess of Congress' enforcement power under the 13th Amendment (I've read all the briefs, though it seems only the Cato Institute's is publicly available).

Now to be clear, even repulsive White supremacists have rights, and I don't think it's an endorsement of White supremacy to file an amicus brief in a White supremacist's criminal case. But it is worth tracing the precise argument these groups felt so passionately about that they'd intercede on behalf of a guy like Randy Joe Metcalf. 

Part of their argument is that the 13th Amendment only permits barring so-called "badges and incidents" of slavery (such as being targeted for physical assault on basis on one's race) when it is necessary to prevent the literal reimposition of slavery. Since, amici argue, there is no realistic change of literal slavery reemerging, it is no longer (if it ever was?) necessary for the federal government to ban racially-motivated assaults in order to pursue the constitutional ends of abolishing slavery (if you think they've been emboldened by Shelby County, you're right).

The other half of the argument is that hate crimes prosecutions, in particular, are a dangerous tool to give to the federal government because they're more susceptible to public outrage and thus "double jeopardy" prosecutions. This is a highly revealing argument. The double jeopardy clause doesn't apply when the federal government prosecutes its own criminal law (even after a completed state prosecution covering the same incident). The amici argue that the federal law here exceeds Congress' constitutional authority; but if that's the case the double jeopardy complaint is superfluous -- the law's just unconstitutional in its own right. So what's the point of bringing up double jeopardy?

The point is one of policy, or more accurately, of worldview. The argument is that "hate crimes" are particularly likely to arouse public anger and legal response, and that therefore we're more likely to see zealous prosecution (up to and including using these federal laws to get a "second bite at the apple" in the event an initial state prosecution fails). In doing so, the Cato Institute and its cohort wish to evoke a particular vision of civil rights laws -- wherein they're mainly a tool of oppression and governmental overreach and so must be highly limited and closely watched. They present a world where the government can hardly resist the pleas of minority communities for justice in the case of racist crimes; where the main problem when it comes to race in our society is too much zealousness in protecting outgroups. Who will think of the poor White supremacist, reviled by all and protected by none (except, of course, a President who thinks some among his number are "good people")?

It was difficult to swallow this logic in 2013, when Shelby County was decided. In 2018, it would be laughable save for the fact that it appears to be virtually indestructible. Just as for some people there's no amount of evidence that could establish someone to be racist, for some organizations there's no amount of evidence that could establish racism as an actual, non-trivial problem in American society.

Sunday, February 04, 2018