Tuesday, June 10, 2014

A Voter's Saga

Did you know the Virginia congressional primaries were today? I didn't -- at least, not until this morning. But I think it's important to vote. America is a democracy, and voting is how we preserve it. It's hardly some big imposition on my life to do my civic duty, is it?

This is my story:

6:20 PM: Step off the metro at courthouse and walk to the Arlington County building, where I cast my ballot for the gubernatorial race this past fall. Realizing that I have no idea what races are being contested, let alone who is running, I check my phone for information.

6:30 PM: I've discovered I'm in Virginia's 8th district, where Rep. Jim Moran (D) is retiring. Never liked him anyway. A whole slew of Democrats are running to replace him, but the Washington Post indicates that there is a pretty clear frontrunner in Don Beyer who seems decent enough. Also discover that the polls close at 7 PM. This does not seem to be a big deal -- I'm already here, after all.

6:35 PM Ask for directions to the polling place. Am told that the government building only handles in-person absentee balloting, but if I go to third floor they can direct me to my polling place.

6:40 PM: Am informed my polling place is at the local elementary school. It's a short walk from the government building, and I know exactly where it is. Plenty of time.

6:48 PM: Reach the polling place. Do I have a Virginia ID? No, I do not -- I actually tried to get a Virginia driver's license, but was stymied due to my mistaken belief that my social security card would establish my identity. Since I never drive, I never tried again. Utility bill? Voter registration card? Alas, I do not carry any with me while at work. Remember kids -- if voter ID requirements can stop an upper-class white man from voting, it can happen to anyone.

6:51 PM: Walking back to my apartment. Remind myself that I've always opposed voter ID requirements, so fulminating over my current predicament is not opportunistic. The circa 553% humidity is not helping my mood, and I'm soaking my dress shirt.

6:54 PM: Reach my apartment. Decide that if I can find my voter registration card on the first pass, I can make it back in time to vote.

6:56 PM: Miraculously, I find my voter registration card right away (miraculous both because I'm incredibly disorganized, and because my guess of "buried under a pile of papers in my second desk drawer" was right on target). Now the race is on. Literally -- I'll have to run back to the elementary school if I want to make it.

6:59 PM: After running the half-mile to the elementary school, I burst through the doors waving my registration card. Poll workers recognize me and give me a round of applause.

7:00 PM: Cast my vote for Beyer. Get sticker. Walk home drenched but satisfied.

10:49 PM: Write this post. Check results, Beyer won the race by 27 points. Totally worth it.

Saturday, June 07, 2014

So Far The Count Remains One

The Forward has this article up about an anti-Semitic mural put up by a Cleveland gas station:
The mural appears on the side wall of Biggie's Foodmart and gas station in Cleveland. Written above the graphic image of are the words: "Talmudic Priests in Church: Sex With Minors Permited [sic]."

It apparently depicts the metzitzah b’peh ritual, the controversial practice in which a mohel sucks the blood from an infant’s penis after circumcision.
The local Jewish community is of course quite upset. But the article continues to say that the "gas station doesn't just take aim at Jews.
On the adjacent wall is another, similarly drawn image with the title “The Faces Of.... Jesus.” Having alluded to Jesus' importance in Christianity and Islam, the first line of the graphic reads: "To Jews he's a bastard, who's in hell." Curiously, underneath the image’s third depiction of Jesus are the words “Palestinian Born,” in smaller letters.
Perhaps they're explaining poorly (or perhaps I'm bad at reading), but that to me sounds like he's still taking aim at Jews.

Sunday, May 25, 2014

The Roberts Court Votes on Brown

Norm Ornstein, writing in The Atlantic, argues that had it been the Roberts Court sitting in 1954
[t]he decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"—leaving separate but equal as the standard.
Ilys Somin cries foul. And I think Somin has the better of the argument, but it's a more interesting question than he lets on.

Somin observes, quite correctly, that the "colorblind constitution" advocated by Chief Justice Roberts and others makes easy work of the de jure racial classification at issue in Brown. But I don't think the point of the hypothetical is to transport the doctrines and particular legal and policy beliefs of the Roberts Court back to 1954. After all, these doctrines and policies derive from particular historical roots, of which Brown of course looms large. But in 1954, the "colorblind constitution" was hardly so entrenched -- its jurisprudential provenance was a solo dissent in an 1896 decision that the Court had, to that point, been extremely careful not to disturb. And the "separate but equal" doctrine that prevailed instead was, on face, perfectly egalitarian. It has "equal" right in the name!

Somin contends, though, that irrespective of this superficial equality "a Supreme Court justice who believes that the government should “stop discriminating on the basis of race” would have no trouble striking down school segregation laws, regardless of whether the separate schools were 'equal' or not. Jim Crow segregation laws were nothing if not blatantly obvious examples of discrimination on the basis of race."

But was it so "blatantly obvious" back then? Of course, in many cases there were material differences between the separate accommodations, and that is indeed an easy case. The Court had begun tackling these facial violations of "separate but equal" in cases like Sweatt v. Painter and McLaurin v. Oklahoma Board of Regents, and I have no doubt that Roberts and company would have followed those precedents. But making the jump to the colorblind constitution requires more -- it requires a theory for why formal equality isn't enough. It is notable that this debate played on Plessy, and the terms of the debate were the social meaning of racial separation. The majority adamantly ignored these social conventions:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
But does anyone seriously have confidence in the Roberts Court to develop a new rule on race based on the social effects of a formally equal legal rule? This, to put it mildly, is not their standard operating procedure.

Nonetheless. maybe these cultural conventions really were so "blatantly obvious" that the Roberts Court would craft a brightline rule addressing them. This is buttressed, ironically, by the fact that in my estimation the Roberts Court's identification with a "colorblind constitution" doesn't derive from any cognizable legal foundation (originalism, textualism, etc.), but really represents a deeply-felt policy preference. And while that normally is not praiseworthy, it does mean that the conservative Justices would be more inclined to craft this rule even where it did not have a clear link to prior precedent or a prevailing legal theory.

The really interesting question, though, is how the Roberts Court would have decided Brown II (and the subsequent "remedial" jurisprudence line). Ornstein did not raise this issue, so I don't fault Somin for not responding to it. But recall the context: after Brown the District of South Carolina on remand took away from the cases the following principle:
The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.
To the extent Brown II allowed or even required the use of affirmative race-conscious steps to integrate schools, would the Roberts Court have followed along? Or would it have endorsed the position of the District of South Carolina that the start and end of "desegregation" was erasing government statutes mandating racial separation?

To be sure, the Roberts Court today recognizes (barely) that the use of race to remedy de jure racial discrimination is constitutional. But their acceptance of this principle is much more tenuous than that of the colorblind constitution, and derives almost entirely for the legal and emotional precedential force of the Court's civil rights era desegregation jurisprudence. Starting from scratch, would they have announced a similar rule? I think not.

In short, I think Chief Justice Roberts would have signed onto Brown. But I think that's as far as he would have gone. When it comes to remedies, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The judgment of the District of South Carolina on remand would be affirmed.

Tuesday, May 20, 2014

Easy Does It

A.J. Delgado in the National Review (2014):
Now, the term “rape” or “sexual assault” is thrown around almost effortlessly, accusations easily made and lives easily ruined.
And Sir Matthew Hale, Pleas of the Crown (1680):
[Rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.
In conclusion, that Delgado's thesis is identical to how rape was viewed in the late 17th century in no way implies that her assessment likely derives from a similar view of women and female autonomy.

See also my 2011 post On Bad Critiques of Rape Prevelance Studies (Part II). The idea that "crying rape" (that's literally the title of Delgado's article) is some sort of pervasive phenomenon, as if going through a rape investigation is the epitome of a fun girl's night out, continues to astonish me.

Sunday, May 11, 2014

To The Students of SJP Vassar

SJP Vassar has replied to my Innocent Until Proven Nazi post. It reads as follows:
To be clear, we definitely did back down. Our responses have been slowed up due to finals week, but we definitely do not condone the publications!

Your point on the reactions and whether the content would get the same reaction without the inflammatory source is interesting, and something we talked about as well. I think it would not have gotten the same response, as we have posted much more radical things than a description of Zionist trolls and a cartoon about the UN ignoring the ongoing genocide within Palestine. I’m wondering if you've looked at any of our other content tho, because I want to ask if you see the content of which we post as anti-semitic?

Are you the kind of zionist defender who equates critiques of zionism with antisemitism? and if not what about our content is anti-semitic?
The issue here is not, and never really was, whether you "condone" white supremacist publications. The key takeaway from my post should not be "Would the reaction have been the same [had the source not been a bunch of white supremacists]?" The key takeaway should be this:
If you call yourself an anti-racist but find yourself nodding along with neo-nazis, maybe that's a sign that your anti-racist bona fides aren't quite what you think they are. Clearly they don't view themselves as anti-Semitic, but one wonders what exactly would be evidence to these students that this self-appraisal isn't reliable? In large part, this discussion is about Jews who are describing their oppression and gentiles who call us crazy for doing so.
This is not to say you should not be more careful -- and I note that, "apology" notwithstanding you currently have a Nazi (no "neo-"; this dates from 1944) poster gracing your front page. But the issue is not about sourcing. In many ways it isn't even about content. It's about epistemics. How do you know what you think you know? You think you're anti-racist. You think you're not anti-Semitic. But you're well aware that most Jews disagree. What do you derive from that?

You make a statement. Jews say they believe it is anti-Semitic. Now you have a decision to make. If your response is "it's probably just Jews being pathological liars and/or delusional, as usual", you can hardly claim in the next breath to not be anti-Semitic. To borrow from George Yancy, people "admit[] of no ignorance vis-à-vis the [Jew]. Hence, there is no need for ... silence, a moment of quietude that encourages listening to the [Jew]." Instead, "the louder we speak, the crazier we are."

And this was the true problem with the "Zionist trolls" post, and your flippant question about whether I am "the kind of zionist defender who equates critiques of zionism with antisemitism." All of this starts from the exact opposite presumption -- that what the mainstream Jewish community says is inherently suspect and probably done in bad faith. It's "race card" politics. When we're talking about the critical institutions that mediate Jewish lives (and the gentile responses thereto) the issue of anti-Semitism properly should be at the foreground. It would be strange if such a discussion did not substantially implicate issues of anti-Semitism, and if you're talking about such institutions without talking about anti-Semitism, you're talking about it poorly. But it's not a conversation that can be had on egalitarian footing if Jews aren't accepted as valid exponents about Jewish history, Jewish experience, and Jewish lives. It is what we need In Order To Begin this conversation.

This is why anti-racism politics is hard. If you're serious about it, it requires sacrifices, sometimes of things we hold very dear:
if one isn't willing to consider as even potentially legitimate Jewish criticisms that one's statements are or engender anti-Semitism, one can't act surprised if they don't give your own criticisms much weight or attribute them to hostility. After all, it seems quite likely that a person whose immediate response to Jewish objections is "as usual, Jews are lying/suppressing free inquiry/insane" is someone who in fact does harbor inegalitarian views towards Jews. Privilege -- gentile or otherwise -- means that one can always choose to maintain the primacy of one's own perspective on matters affecting the marginalized group. A very large part of anti-oppression analysis is about convincing the privileged to at least suspend that outlook and recognize that it is possible -- maybe even likely -- that the marginalized person is epistemically more credible on the subject, and that our own view -- even if honestly arrived at, even if fervently held -- may be suspect after all. Persons consistently unwilling to engage in that "quietude" towards Jewish voices cannot claim any presumption of egalitarian views vis-a-vis Jews.
I have on many occasions said what I take to be the heart of counter-anti-Semitic method, borrowing from Christine Littleton's description of the heart of the feminist method: it begins "with the very radical act of taking [Jews] seriously, believing that what we say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us."

And that's the central point. We shouldn't need the smoking gun of neo-Nazis. We deserve to be treated as credible witnesses regarding our own condition. It might require you to reassess some core beliefs. But if your "anti-racism" never causes you to alter anything of value to you, it's not much of anti-racism at all.

Friday, May 09, 2014

Innocent Until Proven Nazi

I've been reading with interest the saga of Vassar College's Students for Justice in Palestine branch, which recently has posted a series of material from various White supremacist websites. Rebecca Lesses, a professor at a fellow New York liberal arts college, initially posted about it here and has since written several follow-up posts.

Suffice to say, Vassar SJP is not backing down. They concede that their source (Occidental Quarterly) "is a white nationalist publication, that doesn't mean everything they say is invalid though!" "If the idea is alright, who cares where they come from?" (The idea here, in case you're curious, is that the intertubes are infested with "Zionist internet trolls" -- the electronic cohorts of "fifth columns in foreign governments who subvert national policies to serve Israel"). They contend that linking to OQ "does not mean we support white nationalist ideology; rather, we found this particular article’s description of those behind zionist propaganda campaigns and how they operate to be a helpful articulation of problems many organizations like us face." In short, "we're not white supremacists, but they sure do have it right about the Jews!"

In a sense this is almost too easy. If you call yourself an anti-racist but find yourself nodding along with neo-nazis, maybe that's a sign that your anti-racist bona fides aren't quite what you think they are. Clearly they don't view themselves as anti-Semitic, but one wonders what exactly would be evidence to these students that this self-appraisal isn't reliable? In large part, this discussion is about Jews who are describing their oppression and gentiles who call us crazy for doing so. Once you're far enough down the rabbit hole, there is no threshold of evidence that makes the Jewish claim credible. The louder we speak, the crazier we are. But most people are not so far gone as to be unable to understand what it means when one starts unapologetically parroting white supremacist slogans. Demonstrating the overlap between "left-wing" anti-Semitism, which clothes itself in anti-racism discourse, and its "right-wing" counterparts is a way of validating the claim -- we can feel confident that these students are anti-Semitic because they're essentially waving its flag. "You shall know them by their fruits" indeed.

But in another sense I find this very frustrating (aside from the obvious reasons, of course). Suppose Vassar SJP had posted the exact same material, only it wasn't attributable to an avowedly white nationalist website? Would the reaction have been the same? For some of us, sure: we know anti-Semitism when we see it. But for others, it seems that the Nazi link is a crutch -- without it they find it very difficult to even raise the prospect of anti-Semitism. Anti-Semitism has symbology but no content. Ideas, policies, statements, actions, and motives are not anti-Semitic -- only associations are. We saw this with Jenna Delich too -- it wasn't what was said, it was that David Duke was saying it, that was the smoking gun. You are anti-Semitic to the extent you can be tied to Nazis. If you can't, you're in the clear.

Saturday, May 03, 2014

The Natural Interpretation

As Clive Bundy has made clear, there is no limit to how racist one's words can be while still being able to claim -- apparently with a straight face -- that it is entirely unreasonable to claim the words are racist. Over in the Netherlands, we have possibly the platonic ideal of that formulation as applied to Jews:
The rapper Ismo, whose real name is Ismael Houllich, included the text in his first single. The official video clip for the song titled “Eenmans” (or “One Man’s”) shows Ismo singing: “I hate those fucking Jews more than the Nazis,” “don’t shake hands with faggots” and “don’t believe in anything but the Koran.”

The clip, which was filmed in the southern border city of Breda, had received 125,000 viewers on YouTube before a 19-year-old homosexual resident of the city, Lars Hobma, filed a complaint with police against Ismo for alleged incitement to hatred, the news site of the Algemeen Dagblad daily reported Friday.

Hobma has received death threats on Facebook after filing the complaint, the daily reported.
In an interview for Omroep Brabant, a regional radio station, Ismo denied Hobma’s allegations.

“They are trying to twist my words against me,” he said. “I don’t hate all Jews. I hate only Zionist Jews that made Palestine smaller than my neighborhood.”

He added: “It all depends on how you interpret the song. By ‘faggots’ I didn’t mean homosexuals and by ‘Jews’ I didn’t mean all Jews. My fans realize that.”
One can't help but feel for Ismo. It's getting to the point where one can't even say "I hate those fucking Jews" without someone calling you an anti-Semite. What a ludicrous world we live in.

Wednesday, April 30, 2014

Bitty Tent

This is disgraceful. Certainly, I don't agree with J Street on every issue. I have a lot of problems with them. But if the Conference of Presidents of Major Jewish Organizations was only comprised of groups I agreed with in their entirety, it'd only have one member -- myself. And while that would be pretty cool, actually, it's no way to run a communal "big tent." There is nothing about J Street that puts it outside the mainstream of Jewish politics -- indeed, it is in many ways far more in tune with the American Jewish populace than, for example, ZOA is.

Honestly, it's an open question whether Jewish organizations can continue, in good faith, to remain members of the Conference. With this rejection, it is entirely unclear what purpose the Conference serves other than to calcify the power of an increasingly-irrelevant branch of Jewish society.

Update: Apparently Rabbi Rick Jacobs (head of the Union of Reform Judaism) reads this blog:
[M]any of us argued before and at the meeting, yesterday's debate was actually a referendum not on J Street but on the Conference of Presidents itself. As of yesterday, it is clear that the Conference of Presidents, as currently constituted and governed, no longer serves its vital purpose of providing a collective voice for the entire American Jewish pro-Israel community.

In the days ahead, Reform Movement leaders will be consulting with our partners within the Conference of Presidents to decide what our next steps will be. We may choose to advocate for a significant overhaul of the Conference of Presidents' processes. We may choose to simply leave the Conference of Presidents. But this much is certain: We will no longer acquiesce to simply maintaining the facade that the Conference of Presidents represents or reflects the views of all of American Jewry.
When I wrote my post I wasn't actually expecting any major group to seriously threaten to leave the Conference. In other words, this is much ballsier than I expected. But now that this possibility is seriously on the table, I'm not backing off from it. The Conference's main function is to serve as a meeting ground wherein the totality of the organized institutional Jewish community can meet. Having voluntarily ceded that role with yesterday's vote, it's unclear what utility the Conference retains.

Friday, April 25, 2014

How To Write a Brief, By Paul Clement

This amicus brief by Paul Clement on behalf of the American Beverage Association (the other, other ABA) in POM Wonderful v. Coca-Cola is a masterpiece. The formal legal question -- on which I express no opinion -- is whether a party can bring a suit under the Lanham Act (which governs false advertising) regarding a label of a product regulated under the Food, Drug, and Cosmetic Act. POM's lawsuit accuses Coca-Cola of mislabeling a drink as "Pomegranate Blueberry" juice when it contains just .3% pomegranate juice and .2% blueberry juice (it is 99% apple and grape juice).

And when you put it that way, it sounds really bad! There's an old saying amongst lawyers that when the law is on your side, pound on the law, and when the facts are on your side, pound on the facts (and when neither is on your side, pound on the table). These facts sound very bad for Coca-Cola (99% juices other than the two prominently displayed on the label), so the conventional wisdom would be to bang on the law and downplay the facts.

My theory of advocacy, however, has always been the opposite -- go on offense where your opponent thinks they're strongest. "Offense" is important -- the strategy only works if you argue that the point they think is their ace really, truly, obviously favors your own side. Even if you don't persuade the audience, it has a neutralizing effect -- it makes it seem like the issue is at best a single or a double for the other side rather than they're home run.

I digress. The point I want to make is that Clement starts with what seem to be awful facts, and deftly explains why labeling juices from the perspective of volume may not make a lot of sense. It is clear, lucid, and intuitive -- no small feat given how incongruous the position seems at first glance.

If one is looking for a model of how to write a brief, this is one to do it. It is a masterclass of the art.

Tuesday, April 22, 2014

JK, Seattle

Some selected passages from Parents Involved v. Seattle School District No. 1:
The present cases are before us, however, because the Seattle school district was never segregated by law. . . . The justification for race-conscious remedies in McDaniel[v. Baressi, 402 U.S. 39 (1971)] is therefore not applicable here. The dissent's persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, "devised to overcome a history of segregated public schools," post, at 2825-2826—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.
127 S. Ct. 2733, 2761 (2007) (plurality).
Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle's plan.

Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle's race-based student assignment efforts, post, at 2839-2841, it cites no law or official policy that required separation of the races in Seattle's schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle's schools were once segregated by law. See post, at 2803-2805, 2812. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary.
127 S. Ct. 2738, 2771 & n.7 (2007) (Thomas, J., concurring).

As it happens, the history of Seattle schools vis-a-vis segregation also made an appearance in today's Schuette opinion:
Although there hadbeen no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that“permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically,the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.
If I were Justice Breyer I'd be inclined to lob a molotov cocktail through the window, but sure, concur in the judgment instead. At least Justice Sotomayor identifies the contradiction in footnote 9 of her dissent (and Justice Scalia does so as well in footnote 2 of his concurrence).

As for me, it's amazing how the much more trusting we are of democratic decision-making on racial issues when the ultimate decision seems to favor White people. The contrast between Schuette, on the one hand, and Parents Involved and Shelby County is so stark as to be blinding. The people, through the democratic process, decide that racism is no longer a serious problem? Democracy in action. The people, through the democratic process, declare the opposite? That's what we have courts for -- to shield powerless majorities from such intolerable insults upon their character. Once again, we can credit Scalia for his honesty -- he puts Carolene Products squarely in his cross-hairs -- possibly the first truly negative citation that venerable footnote has seen since its 1938 inception.

Saturday, April 19, 2014

What's Reasonable About Reasonable Doubts?

Suppose you are on a criminal jury. After the case closes, you retire to determine whether the defendant is "guilty beyond a reasonable doubt". It's one of the most famous elements of American law -- probably the only part of the jury instructions that jurors know of in advance. But what does it mean?

"Guilty beyond a reasonable doubt" means, on the one hand, something more than just thinking the defendant probably did it; and on the other hand, something less than being absolutely certain that he did it. It allows for doubts, but only "reasonable" ones.

So you come into the jury room believing that the defendant is guilty and that, whatever doubts you may have about that conclusion, those doubts are not "reasonable" ones. A fellow juror disagrees. He has doubts sufficient to cause him to vote "not guilty". You listen to his argument, but your mind isn't changed. You still vote "guilty". What, exactly, does that vote mean in the context of your assessment of the other juror? They raised doubts, and yet you're voting "guilty beyond a reasonable doubt." At first blush, there seem to be two possibilities:
(1) By voting "guilty beyond a reasonable doubt", you are implicitly saying that their doubts are unreasonable. If they were reasonable, then you'd be obligated to vote "not guilty".

(2) By voting "guilty beyond a reasonable doubt", you are making no statement about the reasonableness of anyone else's doubts. In effect, you are stating that it is possible for some people to have "reasonable" doubts and others to have no such doubts.
To me, the former makes much intuitive sense in terms of the actual concept of "reasonable doubt". Typically in law "reasonableness" is an objective standard. It is meant to transcend individual idiosyncrasies and provide a uniform standard based on the prototypical "reasonable person". And at a very basic level, I'm not sure what it means to say that while someone else's doubts may be reasonable, this person is nonetheless "guilty beyond a reasonable doubt". Once you've made the concession that someone could reasonably have doubts, then by definition the defendant cannot be guilty beyond a reasonable doubt.

Yet it is absolutely clear that we do not view reasonable doubt this way. First of all, I suspect that if we did -- if the standard really was "is someone with a contrary view objectively unreasonable?" -- we would almost never convict anyone. But it also is implicit in the structure of appellate review of criminal convictions.

When I was an appellate clerk, we'd of course have a great many cases where defendants challenged their criminal convictions. It was pretty rare that I came across a case where I thought the defendant was "actually innocent", in the sense that I thought it was more likely than not that they didn't commit the accused crime (I can think of one potential candidate -- Paulson v. Newton Correctional Facility, 703 F.3d 416 (8th Cir. 2013)). But there were quite a few where I thought there might be reasonable doubt. I'd read the defendant's account of what happened, and I'd think "that's a live possibility." And of course I don't think I'm unreasonable. So, it seemed to me, reasonable doubt existed. If lack of such doubt is supposedly a prerequisite of a guilty verdict, how do such convictions stand?

The answer is the standard of review, which is quite strict in such cases.
We "reverse only if no reasonable jury could have found [Va] guilty beyond a reasonable doubt." United States v. Morales, 445 F.3d 1081, 1084 (8th Cir.2006) (quoting United States v. Howard, 413 F.3d 861, 864 (8th Cir.2005)). We "view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence." United States v. Milk, 447 F.3d 593, 598 (8th Cir.2006). "The standard for reviewing a claim of insufficient evidence is strict, and a jury's guilty verdict should not be overturned lightly." United States v. Pizano, 421 F.3d 707, 719 (8th Cir.2005).
United States v. Van Nguyen, 602 F. 3d 886, 897 (8th Cir. 2010).

This seems to (and in effect does) shift the burden of proof sharply in favor of upholding convictions. But it suffers from a conceptual problem, since it is effectively smashing two standards of persuasion together. The question for the reviewing court, to paraphrase the Morales decision quoted above, it whether it is unreasonable for a jury to conclude that any doubts raised are unreasonable. Those two "unreasonables" don't play nicely with one another, because again, isn't reasonability supposed to be an objective test? Clearly not, because if so we could just restate the original instructions: are there reasonable doubts or not? The only reason this deferential level of review could possibly be necessary is to uphold verdicts where reasonable doubts do seem to exist. Even granting some allowances for the fact-finders' supposedly superior ability to assess evidence and credibility, the width of the gap between how hard it (supposedly) is to convict ("beyond a reasonable doubt?") and how easy it is to uphold a verdict ("was the jury made up of unreasonable lunatics?") indicates that the test must be subjective.

The end result is that criminal convictions occur -- and probably often occur -- when a reasonable person could have reasonable doubts about the defendant's guilt. That conclusion, to me, seems deeply inconsistent with what we believe as a society tell ourselves about the criminal justice system -- though it seems quite consistent with how it operates in practice. I'm not even necessarily being critical of this result -- the alternative implied by "reasonable doubt" being an objective standard is functional de novo review of jury verdicts, which would mostly obviate the point of having a jury at all. But what it does mean is that "beyond a reasonable doubt" likely is little different from "preponderance of the evidence" -- 12 people (or fewer, depending on the circumstances) subjectively deciding the defendant was probably guilty.

UPDATE: Incidentally, the key case rejecting the claim that a proper "reasonable doubt" instruction must demand that the evidence "exclude every reasonable hypothesis other than that of guilt" is Holland v. United States, 348 U.S. 121, 139-40 (1954).

Spawn A

Chelsea Clinton is one of the highest-profile members of an interfaith marriage. Now that she's pregnant, let's see how various interested parties are reacting. Some are very positive:
Interfaithfamily.com quickly seized the pregnancy as an “opportunity to share with ALL expecting parents” its various resources for new interfaith parents, including a booklet called “To Circumcise or Not: That is the Question.”
Others are less thrilled:
Meanwhile, at the other end of the spectrum, The Jewish Press chose this headline: “Chelsea Clinton Pregnant With Non-Jewish Child.” Calling the former first daughter “America’s poster child for intermarriage,” the Brooklyn-based Orthodox newspaper noted that in marrying four years ago the pair was “effectively pruning away that 3,300 year old Jewish branch of the Mezinsky family.” (And apparently also pruning away the “v” from the groom’s name.)
And then there are the neo-Nazis:
Not surprisingly, Stormfront, the anti-Semitic website, does recognize the child as a Jew, as evidenced by its charming headline: “Chelsea Clinton pregnant with jew spawn.”
That about covers the range, I think!

Saturday, April 12, 2014

DePaul Center for Jewish Law and Judaic Studies

DePaul Law School's Center for Jewish Law and Judaic Studies had an interesting conference recently where several prominent Jewish law professors talked about how their Jewishness affected their outlook on law and legal scholarship. It sounded like a fascinating program -- I wish I had still been in the neighborhood and was able to attend (I lived very close to DePaul Law my 3L year).

Unfortunately, Randy Barnett reports that the center is close to shutting down due to a lack of funding. This would be a true shame. If you're in a position to donate and help keep them going, it would do the world -- Jewish and otherwise -- a great deal of good.

Wednesday, April 09, 2014

Motivational Speaking

I like Jonathan Chait. He's smart and he's funny. It is no accident that my last post stemmed from one of his. But in this post, about racism and the "presumption of innocence" is badly misguided.

Chait's basic argument almost completely abstracts racism aways from any concrete, measurable effects it might have on the world. Instead, racism is almost solely a question of personal moral character. Consequently, it is extremely important to ensure that good non-racists are not unfairly lumped in with bad racists. Chait takes particular issue with persons, such as Melissa Harris-Perry, who suggest that there shouldn't be a default presumption of White non-racism. "Just how a person so accused could overcome the presumption of racism, Harris-Perry did not explain."

On the topic of trusting White people, I refer back to W.E.B. Du Bois' perspective. Surely Chait does not believe that Du Bois had to presume non-racism in 1920. A Black man in 1920 who assumed that any and all White people he met viewed him as an equal was a Black man who would be lynched sooner rather than later. So really we're talking about when the ledger tilted. 1950? 1970? 2004? When was it that a presumption of White non-racism shifted from being a suicide pact to a moral obligation?

What's particularly bizarre is that Chait proffers no evidence that racism is sufficiently rare amongst White people so as to justify a presumption of non-racism. Perhaps that's the benefit of presuming it -- it negates the obligation to actually offer supporting evidence. This is a problem, given the extensive evidence regarding the prevalence of subconscious racism amongst Americans, including amongst those who have conscious and genuine commitments to racial egalitarianism. And this sort of racism continues to exhibit meaningful, tangible impacts on minority lives. But Chait almost seems to view this more as a question of civility than of sociology. We should be careful about saying people are racist because that's a mean thing to say about another person. There is simply no justification for this approach. At the very least, how we approach the subject of racism in American life should remain connected to the actual presence and impact of racism. If racism remains a serious and widespread problem, then we should treat it as one regardless of whether it hurts people's feelings.

But the deeper problem is the focus on personal motivations at all. As Alan David Freeman observed over three decades ago, this is not largely why minorities care about racism. Racism matters because of the tangible effects it has on the lives of those it victimizes. Were racism solely a matter of "the heart" and never translated into material impacts, it wouldn't be that big a deal.

Chait seems to disagree. Consider his response to Ed Kilgore and the disparate impact many conservative policies have on people of color.
The Washington Monthly’s Ed Kilgore, in a trio of posts, objects that it is perfectly fair to impute racism to conservative policies that have a “disparate impact” on African-Americans, citing Republican opposition to things like health-care reform. “I’m willing to stop 'playing' the 'race card,' accurate as it often is,” he writes, “if conservatives are willing to reflect more on a fundamental inability to accept the equality — not of some abstract quantity called 'opportunity,' but of access to the basic necessities of life in this rich society.” If Republicans want Kilgore not to assume they are racist, all they need to do is agree to the liberal policy agenda, or perhaps something close to it.

And Kilgore is right, of course, that Republican policies tend to enrich a disproportionately white constituency and harm a disproportionately nonwhite one. He thus deems the question of motive irrelevant. But suppose we lived in a world where Democrats wanted to redistribute even more resources from the (disproportionately white) rich to the (disproportionately nonwhite) working-class and poor. At some point, the level of redistribution could be high enough that Kilgore himself would object — say, a federal government consuming one third, or one half, or two thirds, of the economy. Would it be fair to describe his agenda as objectively racist? Would that free Kilgore’s left-wing critics from taking his stated objections at face value?
Frustratingly, Chait does not actually make clear his views on "disparate impact" as a consequence. He knocks down the straw-man that infinitely biasing policy in favor of the less-well-off should not be viewed as racist on "disparate impact" grounds. This is of course true, but not actually contested. Disparate impact matters for two reasons. First, because it offers a hint as to motives that are hidden or (as aforementioned) subconscious. Second, because it focuses on what racial minorities actually receive and whether that receipt is compatible with what they are due as a matter of justice. Not to repeat myself, but racial minorities not receiving what they are justly owed as members of a liberal democratic society is bad regardless of what actually motivates the deficiency. Indeed, historically speaking it is quite rare for any such deprivations to be solely motivated by "racism" as Chait understands the term -- a pure and unmoderated desire to harm racial minorities for its own sake.

But in reality, the distinction between motive and consequence is less relevant than one would think. Chait thinks it is extremely important to distinguish between someone who advocates policy X because it hurts Black people, versus someone who advocates it for some other reason (and simply does not realize -- or care -- that it hurts Black people). But when formulating policy, we all have an obligation to think about whether our preferences are compatible with what is justly owed to our fellows. Failing in that responsibility may not be as bad as conscious antipathy towards racial minorities, but it's still something we can fairly condemn. And -- returning to Du Bois -- would Chait really defend the claim that White people have earned a presumption that they have thought deeply and critically about whether their policy choices are fair to Black people?

This dovetails with one of Chait's stranger arguments:
The most problematic part of Kilgore's argument is his recurrent phrase "objectively racist." It consciously or unconsciously harkens back to a chilling Cold War-era line used by conservatives, who described their domestic opponents as "objectively pro-Communist." Their underlying logic, like the phrase itself, mirrored Kilgore's: if you opposed the conservative foreign policy agenda, the "objective" thrust of your beliefs aided communism. This line of reasoning conveniently enabled conservatives to rhetorically lump together all their domestic opponents under the broad rubric of "pro-communist," insinuating a poisonous motive while freeing themselves from having to demonstrate it.
Chait couples this claim with another one that liberals don't care about a standard of "fairness" in assessing racism. But these positions aren't consistent. One way to "fairly" allocate claims of racism is to tie it to certain objective metrics, like, for example, the standard of living enjoyed by racial minorities vis-a-vis the majority. Viewing racism through this lens -- as a question of concrete and tangible things -- has the advantage of linking racism to the reason we care about racism (not to mention linking it to measurable entities). To be sure, there are still plenty of debates to be had even on that "objective" turf. But it is far easier to assess the trying to peer into someone's soul ala Bush and Putin.

The important thing to stress, and the point Chait keeps sliding past, is that the important question regarding racism is not "are White people bad"? The important question is whether our society is, along racial lines, treating all of its citizens in an equitable and egalitarian manner consistent with principles of justice. If the answer is no, that's a big problem regardless of whether the explanation why not ends up being conscious racial antipathy, subconscious prejudice, apathy, or something else entirely.

...and the Maps?

Former Senator (now Heritage Foundation chief) Jim DeMint on how the slaves were freed (via Jon Chait):
Well, the reason that the slaves were eventually freed was the Constitution, it was like the conscience of the American people. Unfortunately there were some court decisions like Dred Scott and others that defined some people as property, but the Constitution kept calling us back to "all men are created equal and we have inalienable rights" in the minds of God. But a lot of the move to free the slaves came from the people, it did not come from the federal government. It came from a growing movement among the people, particularly people of faith, that this was wrong. People like Wilberforce who persisted for years because of his faith and because of his love for people. So no liberal is going to win a debate that big government freed the slaves.
To be fair, his answer may have been ghost-written by another South Carolinian.

Wednesday, April 02, 2014

The God Market

I'm not exactly an anti-trust specialist, but I found this hilarious (via Will Baude):
Judge Orders God To Break Up Into Smaller Deities

WASHINGTON, DC—Calling the theological giant’s stranglehold on the religion industry “blatantly anti-competitive,” a U.S. district judge ruled Monday that God is in violation of anti-monopoly laws and ordered Him to be broken up into several less powerful deities.

“The evidence introduced in this trial has convinced me that the deity known as God has willfully and actively thwarted competition from other deities and demigods, promoting His worship with such unfair scare tactics as threatening non-believers with eternal damnation,” wrote District Judge Charles Elliot Schofield in his decision. “In the process, He has carved out for Himself an illegal monotheopoly.”

[. . .]

To comply with federal antitrust statutes, God will be required to divide Himself into a pantheon of specialized gods, each representing a force of nature or a specific human custom, occupation, or state of mind.”There will most likely be a sun god, a moon god, sea god, and rain god,” said religion-industry watcher Catherine Bailey. “Then there will be some second-tier deities, like a god of wine, a goddess of the harvest, and perhaps a few who symbolize human love and/or blacksmithing.”
Leading theologians are applauding the God breakup, saying that it will usher in a new era of greater worshipping options, increased efficiency, and more personalized service.

“God’s prayer-response system has been plagued by massive, chronic backlogs, and many prayers have gone unanswered in the process,” said Gene Suozzi, a Phoenix-area Wiccan. “With polytheism, you pray to the deity specifically devoted to your concern. If you wish to have children, you pray to the fertility goddess. If you want to do well on an exam, you pray to the god of wisdom, and so on. This decentralization will result in more individualized service and swifter response times.”
It's an oldie -- I think this is actually playing off the Microsoft break-up decision -- but still hilarious.

Tuesday, April 01, 2014

March on Washington

Governor O'Malley announces that Maryland will take back what's rightfully ours. Next stop, Delaware.

Thursday, March 27, 2014

The Sun Never Sets on the Jewish Empire

The KKK went recruiting in Rhome, Texas. Their message is the usual mix of paranoid, racist, anti-Semitic conspiracy-mongering. I found it depressing -- but not for the reason you'd think:
The message informs callers that the United States government “is just like Al Qaeda,” and that it’s using “taxpayer money to fund terrorist acts in the Ukraine” so the U.S. can put in “a puppet government so it can protect the Satanic state of Israel.”

The new “main battles,” it continues, “will take place in Iran and Syria,” and “the Jew bitch behind this scheme is Victoria Nuland,” the Assistant Secretary of State for European and Eurasian Affairs at the United States Department of State.
Now, as a Jew, one thing that comes with the territory is the conspiracy theories. We're blamed for literally everything. It's a simple formula: take a social problem, identify a Jew in a position of power, and voila! Obviously it's their secret Jewish plan! And think of the cast of characters they had to draw on! Paul Wolfowitz. Richard Perle. Donald Rumsfield (not Jewish, but that never seemed to stop anyone). It was a list of Devilish World-Controlling Jews we could all be proud of.

And where are we today? The Assistant Secretary of State for European and Eurasian Affairs? That's who we're relying on now? What happened to us? What happened to the ZOG?

Thanks a lot, Obama.

Wednesday, March 19, 2014

Distractions Roundup

A German restaurant in Minneapolis hosts German-themed WWII days! Oh, why did I move away (other than the SS officer down the block)?

Facebook advertising algorithm fail.

Ameinu's Third Narrative announces its Academic Advisory Council.

Cary Nelson has a truly superb review of Judith Butler's latest book promoting BDS and the dissolution of Israel. Though all of it is great, what resonates most with me is the observation that the abstract and ahistorical conception of justice Butler draws is not just unattainable, it's a model that the progressive left has rejected for decades -- led by people like Butler. She knows better, she just doesn't know better when it comes to Jews.

I thought this would kill my productivity. I was wrong. It was this that did me in.

Friday, March 14, 2014

The Innocence of Youth

A very interesting study published in the Journal of Personality and Social Psychology systematically overestimate the ages of children of color, particularly Black children, who are accused of crimes. The result is that they view them as less innocent and more culpable, and treat them more harshly.