Thursday, April 17, 2008

Maryland Reverses Hideous Rape Ruling

Thank God: The Maryland Court of Appeals (Maryland's highest court) has unanimously reversed a lower court ruling which held that a woman could not withdraw consent once penetration had occurred. The argument was that the common law held only the "deflowering" to be the crime in rape, so once that had occurred the damage was done. As a proud Marylander, it was extremely embarrassing to be associated with that sort of logic, and I'm glad it's been officially overruled.

Via Feministe

UPDATE: As I wrote in the other post, I stake no claim as to whether this case, on its facts (the defendant claims he withdrew five seconds after consent was withdrawn -- I don't know if that account is disputed by the victim), should have yielded a conviction. But as a point of law, the principle that rape cannot happen once penetration has been achieved is atrocious and rightfully has been overruled. Appellate courts rule on matters of law, not fact, and the legal point at issue here clearly needed to be reversed.

Out to Lunch

And then some. I'm leaving early tomorrow morning to visit the University of Chicago. I then fly out of Chicago that night to come home for Passover. I won't be back at Carleton until Sunday afternoon, and, since I'm not bringing my computer along, I'll be mostly out of contact.

Have a good weekend, and to my Jewish readers, a good seder.

Eight Year Old Yemeni Girl Sues Over Forced Marriage

An eight-year old girl from Yemen went to court after being forced into marriage with a 30-year old man. Under Yemeni law, she was too young to prosecute a case, but upon hearing her complain the presiding judge ordered the arrest of both her "husband" and her father.
“My father beat me and told me that I must marry this man, and if I did not, I would be raped and no law and no sheikh in this country would help me. I refused but I couldn’t stop the marriage,” Nojoud Nasser told the Yemen Times. “I asked and begged my mother, father, and aunt to help me to get divorced. They answered, ‘We can do nothing. If you want you can go to court by yourself.’ So this is what I have done,” she said.

Nasser said that she was exposed to sexual abuse and domestic violence by her husband. “He used to do bad things to me, and I had no idea as to what a marriage is. I would run from one room to another in order to escape, but in the end he would catch me and beat me and then continued to do what he wanted. I cried so much but no one listened to me. One day I ran away from him and came to the court and talked to them.”

“Whenever I wanted to play in the yard he beat me and asked me to go to the bedroom with him. This lasted for two months," added Nasser. "He was too tough with me, and whenever I asked him for mercy, he beat me and slapped me and then used me. I just want to have a respectful life and divorce him.”

I debated for a long time over how to write up this post. My first instinct was applaud the girl for being a total bad-ass in this situation. But that felt inappropriate. She demonstrated tremendous courage, no doubt about it. But the fact remains she never should have been put in this situation in the first place. It is far too much to ask of an eight year old, to have to go to court to win her freedom from sexual slavery. She is clearly an extraordinary girl, and she has more than earned her "respectful life" (not that such a thing needs to be earned). Hopefully, her case can serve as a spark point to aid other girls, similarly situated, who do not possess super-human courage and cannot escape on their own.

Talkin' Sophisticated

There's a new study being reported claiming that there is a positive correlation between candidates who use "sophisticated" language and the amount of support they get from highly educated voters. This effect apparently operates independent of the substantive policy dimensions of the speaker's rhetoric.

Matt Yglesias, observing that less-educated voters weren't turned off by complex rhetoric (they just don't exhibit the positive effect as strongly), thinks that there's no downside to quoting Aeschylus in the stump speech.

Ideally, perhaps, but I think we might be forgetting the lessons of the "bitter" fiasco. The less-educated voters in the study might not intrinsically care about the type of rhetoric their candidate's use. But then, I doubt the study authors subjected them to a follow-up barrage of media coverage screeching about how out of touch the candidate is ("Greek playwrights? Ewwwww!!!!"). The media is perfectly happy crafting its own narrative about how they assume less-educated voters "will" respond to these sorts of things, and then you get weeks of coverage about how Barack Obama is an elitist who is loathed by everyone outside metropolitan San Francisco.

Clean Government in The Congo

I have an unexplained interest in The (D.R.) Congo, of which I've blogged on before. Blessed (or cursed) with fabulous mineral wealth, there are few places in the world that deserve piece more than the Western Europe sized nation. Under Belgian rule, it endured one of the most brutal colonizations in Africa (not an easy title to win), followed by systematic plundering by the Mobutu Sese Seko, and then a horrific civil war that claimed the lives of millions.

But, under the leadership of Joseph Kabila, the country has just completed its first fair and open election. And the Washington Post reports that reforms are -- slowly and fitfully -- beginning to set in. A new rule posits that 40% of all governmental revenue shall flow outward to state legislatures (though the money has yet to arrive). Bureaucracies are slowly coming together and starting to work. And local lawmakers are beginning to put together reform packages -- and are worried about being voted out of office if they don't deliver.
The other day, 60 of the 102 salaried lawmakers showed up for a session that began about an hour late.

They were supposed to hear a report about the country's corrupt customs office, but that was postponed because the report was not yet typed. They were supposed to go over the details of a new property tax system, but that was also postponed, because the property tax expert was not around to explain.

The president of the assembly, Gabriel Kyungu wa Kumwanza, seemed frustrated, but for a reason that has never really existed in Congo: fear of not being reelected.

"The people of Katanga, they are pressuring me!" he said, rapping his gavel on the podium. "They want to see change, but they see I am only growing fat!"

Something else was notable about the session, which was broadcast on state TV: On a sunny Saturday afternoon, a couple of dozen people showed up to observe their government in action, and not all of them were the lawmakers' drivers.

They included a Congolese human rights activist, a few miners and Boniface Mbuya, a 28-year-old law student who regularly attends because, he said, "maybe someday I'll be a great man." He was getting used to the new system, he said, and was still trying to shake off a profound sense of repression and an almost cult-like reverence for the powerful.

Though the provincial governor recently installed a suggestion box outside the assembly, for instance, Mbuya said he hasn't used it yet.

"I always have this ambition to write something and drop it inside," he said. "But maybe the government would say, 'Oh, these students, look at what they've written.' I fear it." Still, he supported the new constitution, voted in the 2006 elections and said that he expected his representatives to deliver.
Attempting to satisfy the rising expectations since the 2006 elections, the governor of Katanga, Moise Katumbi -- who presides over an area the size of France -- has made several symbolic gestures.

Though he has no official power to do so, he decreed a new minimum wage of $150 a month. He bought several ambulances and hearses with his own money. He levied new property taxes, planted roses at the airport and painted downtown shops in shades of salmon.

It's that last part that makes me smile. Is it symbolic? Yes. But it's symbolic of change. It's symbolic of a government that feels it needs to show something to its people. And its symbolic of a society that -- after so many years of darkness -- may finally see hope for a better future.

Wednesday, April 16, 2008

Never Give Up, Never Surrender

The Corner is worried that President Bush is about to submit to an "unconditional surrender" on Global Warming (I swear I'm not making that rhetoric up). I haven't heard that appellation used since history books about the Japanese and WWII. But I guess since the consequences of planet-wide climate devastation would make Hiroshima look like a brush-fire, maybe it's about time we get over our "honor" and admit the reality that's staring us in the eye?

Via Balloon Juice

The Legal Implications of Loads of Litigation

The US Supreme Court just handed down Baze v. Rees, a highly fractured 7-2 opinion allowing execution by lethal injection.

My view on capital punishment lies roughly opposite of Feddie's: I don't have any intrinsic, moral objection to the death penalty, but I long since have become convinced that the death penalty system in America is so damaged as to make it virtually beyond repair -- up to and surpassing Justice Stewart's description of it being "wanton and freakish." Consequently, I think as applied it runs afoul of constitutional due process and cruel and unusual punishment protections, and I am not optimistic about the ability of policymakers to find a remedy. On the sub-question of whether lethal injection particularly is impermissible (the subject of this case), I stake no claim: that is a fact-based question about the reliability and pain quotient of the procedure upon which I do not have the relevant information.

But that's not actually what I want to talk about. Rather, it appears (from SCOTUSblog's summary, which I have no reason to doubt -- but I haven't read the opinion itself) that Justice Thomas' concurrence (joined by Scalia) rendered an attack on the plurality claiming that the standard their ruling would lay out would lead to an excess of litigation, potentially grinding the death penalty machinery to a stand-still. My question is why this is a legally relevant consideration?

Now on one level, that answer is easy for a legal pragmatist such as myself -- I don't think any consideration, particularly as to outcomes, is per se irrelevant (though some are far more relevant than others). But for the more...metaphysically minded judges, I admit to some confusion about where trying to insure that death comes quickly to our enemies (to borrow from Morbo) becomes a constitutional principle which can affect and even change our criminal justice protections? To my mind, it seems like -- even from the position that the death penalty is theoretically constitutional -- there is nothing flowing from there that proves that the due process and cruel and unusual punishment hurdles our system has to overcome might be high -- perhaps inordinately high.

Psychologically, this is related to what I termed the philosophy of the limit, the need some people have that there be concrete and solid limitations on the contours of justice, because the alternative means a potentially endless struggle for the ideal. Scalia and Thomas would not, I presume, disagree that the constitutional protections for due process, or against cruel and unusual punishment, act against our ability to implement the death penalty in some way. At the same time, they also believe that "ideally", the death penalty is consistent with these protections. What they can't accept, however, is that practically speaking the hurdles these protections put up may be extremely high -- they may require copious amounts of litigation to resolve, they may demand intense fact-sensitive adjudication and multiple layers of appeal. And that might make the death penalty so hard to implement that it becomes effectively impossible. They can't accept that, so they construct their legal schematics so their limits lie comfortably within that which will allow the machinery of death to proceed smoothly.

Given the constraints of Scalia and Thomas' putative ideology, that is not a legitimate "constitutional" leap. It is a legitimate leap for a pragmatist -- but both Thomas and Scalia loathe pragmatism. So I remain confused. Where does the justification for that sort of reasoning come from?

Tuesday, April 15, 2008

Breathing Life

There was just one more thing I wanted to follow up on with regards to my S-V-S post. I had asked whether or not The Apostate had used the critical language in her post ("erase", "lived experience", "silenced") sarcastically or not. I could certainly see it, though what I was hoping for was ironic. In my comments, she told me she was "half-sarcastic."

This matters to me because, as I said, I do not want the tools and rhetoric I value so much to be seen as an adversary, as an enemy, to those who need it. But of course, often they are. The question is, can they be reclaimed?

Post-modernists will tell you that every narrative, every tale, contains within it the seeds of its own destruction -- or at least subversion. In The Alchemy of Race and Rights, Patricia Williams wrote:
To say that blacks never believed in rights is true. Yet it is also true that backs believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.

On the one hand, the language of law has for much of American history been the enemy of Blacks, and the rhetoric of rights mocking. Nobody, more so than African-Americans, would have more justification to be cynical about law's capacity for justice, or the ability of "rights" to protect.

But Blacks did not abandon rights. They did not abandon the language that had tormented them for so long. They clung to it harder. They squeezed rights so hard that they breathed life into what was a hitherto dead concept. Rights talk, even though it was for so long a hollow hope, also had a kernel of hope contained into that Blacks grasped onto and made into something real.

Likewise, I believe that within the critical concepts The Apostate uses -- the demand for space and recognition, the protest against privilege and presumption, the refusal to be erased to fit some master narrative -- there is a spark of truth. It is a spark that we cannot cede if we want to be truly free. The only reason the enlistment of these terms feels so mocking, I dare say, is because of that spark. Because even though they represent our truth and our needs and our very lives, they often as not are found on the other side from ourselves. And that hurts.

Pure Blood

An outlet called Israel Insider is breathlessly telling us that *gasp* Obama's preacher, Rev. Jeremiah Wright, is an ex-Muslim! Indeed, they go a step further: "like Obama", Wright is an ex-Muslim, and they speculate that they are working in tandem to secure their political ambitions as Islamic spies:
For if both men were Muslims trying to realize their political ambitions, then Wright's Church provided a valuable shelter from prying questions about both men's religious and political loyalties. It would serve to whitewash their shared Muslim past, a secret both men have every reason to conceal, now more than ever.

Now, I've never understood why the Islamo-phobes in our community see "ex-Muslim" as a bad thing (for my part, I couldn't care less if you're ex-anything, so long as you're progressive -- which is why I can support the writings of ex-Muslim atheists like The Apostate, and the political campaigns of ex-Christian Muslim Keith Ellison). But now, I think we have a clue. Islam, it is implied, represents corruption of blood. Obama, by virtue of his father, and Wright, by virtue of his young flirtation with Islam, do not have Limpieza de sangre, and thus are suspect.

It's a sickening trope, all the more so coming from fellow Jews. Unfortunately, to a far larger extent than I'd like the Obama campaign is really bringing out some of the worst in my community (despite the strong and vocal support Obama gets from many Jews, which should not be washed over).

Backlash Hypothesis

Kevin Drum flags some dangers ahead for Democrats if the refuse to nominate Obama...and Hillary.

In the former case, Jerome Karabel notes that political loyalties are solidified in one's 20s. Coincidentally, that age group represents Barack Obama's base. If they feel spurned at the end of the primary process, they not only could sit out the election, their view of the Democratic Party could be jaundiced for the rest of their lives.

In the latter case, Amanda Fortini says women are beginning to get restless -- not that Clinton is losing, but that people are denying the role sexism is playing in the campaign. The Clinton campaign awoke "sexism in America, long lying dormant, like some feral, tranquilized animal," but too many (in the immortal phrase of Ann Bartow) supposedly liberal doods shout down any woman who dares bring it up (see also, Ampersand). If their frustration boils over, they could stay home election night.

Drum thinks that ultimately, neither will play a big role in the general, as the prospect of a McCain Presidency draws everyone back to the polls. Color me unconvinced. The politically engaged always over-estimate how much "the other guy is scary as hell" serves as a motivator. I will say that I'm more worried short-term about women staying home or crossing over than I am about the youth vote (not because I don't think nominating Clinton would have an effect, but because I think that Obama has pushed their engagement to such heights that at worst they'd "recede" back to normal figures). But of course, I think that if Clinton gets the nod after coming in behind in the pledged delegates, Democrats will also watch the Black vote disintegrate before their very eyes, which probably would be even worse. And the long-term harms of passing over Obama that Karabel notes are a unique danger that I hadn't thought of before.


A few years back, I read an article by an anti-colonialist law professor, Makau Mutua, who indicted the prevailing Western conception of human rights as operating on an "S-V-S" model: Savage-Victim-Savior. Simply put, the Western imagination imputes upon the third world as a totality the status as savages and victims (and people can reside in both categories), who need to be "saved" by the (Christian?) West. It's old-school imperialism in (barely) new guise, and needs to be resisted.

A few years prior to that, I had read Elie Wiesel's Night. And I recall his prayers for bombs to fall on his concentration camp -- for even though it might mean his death, it also could lead to his salvation. The great (and all-too-rare) heroes of the Holocaust were, after all, the rescuers.

The interplay of these somewhat conflicting ideas is what makes so interesting this post by "The Apostate", an American of Pakistani birth, and a Muslim-turned-Atheist. She fled theocracy and her entire family, fearing that her own family would try to kill her. She looked to feminism as a source of strength, one that told her that her degradation was not justified, that there was another path.

But now, from many in the "third wave", she feels hostility and attack. Her critiques of Islam have gotten her labeled "racist" by people who have adopted the religion, even as it was her birth religion. Third wavers sneer that abortion is a white woman's concern. But for her, getting pregnant would have meant the end of her life: "when I got raped and my first fear was not AIDS (and this in a third world country) — it was pregnancy." They demand she look past her own life, her "lived experience" in a theocracy (her term, not mine) to see that Islam doesn't need reforming because "there’s nothing wrong with it to begin with."

And thus we have a problem. We in the west do have trouble humanizing those outside of Europe and America. And the failure of imagination can be brutal. Persons of progressive sway -- no matter what their other proclivities -- feel the pull of colonialist and racist past, and we are terrified of it. We do not want to re-incarnate the image of the savage, or the agency-less victim. So we back away.

But while we are busy with our fretful mutterings about whether any particular act of engagement is colonization, people are dying. Women are dying, men are dying, children are dying. Jews are dying, Muslims are dying, Christians are dying, Hindus are dying, Atheists are dying. The dead and the dying are all-too-uninterested in whether their savior has earned their bona fides as an anti-colonialist. Wiesel, I'm sure, would have been equally happy to have been rescued by Soviet bombs as allied ones. He, and they, just wonder why nobody will rescue them. Fear of the S(avage) and V(ictim) means no S(avior). There is a cost to waiting for moral purity, and it's not the impure who have to pay it.

Turning back to the abstract for a moment. As someone who identifies as a feminist (and more third-wave than second), and an anti-racist, and all the other affiliations of the post-modern progressive nexus, there is nothing more depressing to me than when oppressed people look upon these models, and see an adversary. Are met with hostility. As a Jew, I feel this daily. The language of feminism and anti-racism work has been an crucial tool in a too often hostile world. It provided the language to understand and vocalize the alienation I've always felt, and was an essential support as I moved from the relatively warm confines of suburban Maryland (where everyone is at least familiar with Judaism) to rural Minnesota (where I was an oddity and I couldn't count on people reflexively knowing the basic contours of what it means to be Jewish). And so, I am thankful to those theorists every day.

But at the same time, the language of the left is often deployed against my people. Anti-Semitism is not rampant, but it has a very noticeable presence and is too often tolerated. Durban 1 was an obvious example, but hardly an isolated one. When I see a thread on Israel or Jews on a feminist blog, I shouldn't feel dread in my gut. But I do. There is little pain like the betrayal of those who you've come to rely upon in your darkest hour. Though I doubt The Apostate would approve, I think of Job's raw cry to God: "Why do you hide your face from me; and treat me as an enemy?" (13:21)

In my own personal journey, I've fought this bitterly. I refuse to cede the ground of progressivism to those who would see me and mine destroyed, who roll the dice with my life and seem apathetic as to what the outcome will be. So, I aggressively deploy the language I've learned, that's sustained me, against those who would reify my oppression. The Apostate did likewise, appropriating and wielding the concepts of "erasing", "silencing" and "lived experience" to put together an extraordinarily powerful post. From the context, it's hard to tell if she is using them sarcastically. It'd be hard to blame her if she did, but I hope not. I hope that she sees value in those tools, and -- even if utilizing them against their normal merchants is ironic -- has found away for them to sustain her as well.


Monday, April 14, 2008

The Decision Draws Nigh

Well, I've been being coy about the play out of the law school admissions tournament, but I feel like I can share a little now. Sharing point one: I'm going to law school, not grad school. Sharing point two: I've narrowed my decision down to two schools: Columbia, and Chicago. The decision is due at the start of May, so I figure if any of y'all have insight to share, now is the time.

I'll lay out the advantages of each place as best as I can figure. Ideally, I'd do this after I visit the schools, but I won't make it to Columbia until just a few days before the deadline, so by then this post would be too late. Anyway, here we go.


* Faculty match! This is the big one for Columbia. I want to do CRT, and Columbia has both Patricia Williams and Kimberle Crenshaw (part-time, in the latter case). Chicago has -- well, I'm not sure they have anyone doing CRT specifically. The closest person I'd guess is Martha Nussbaum. She's awesome, don't get me wrong, but that's still a good hop, skip, and jump away from CRT. As I get more interested in pragmatism, Richard Posner intrigues me more and more, but I can't imagine he actually has time to meet with students (I don't know how he has time to eat).

* It's closer to home. I don't mind being in the mid-west, really, but I'm starting to weary of the long trips back and forth. I can take the train from NYC back to Washington. I love trains.

* Higher US News ranking. I don't really put much stock in that (particularly when we're talking about consensus top-10 schools), but there it is.


* I want to be a law professor, and Chicago is known as a law professor training ground (to more of a degree than Columbia).

* It's a smaller school. I didn't really think about this until recently, but that could be an issue. After all, I attended a small liberal arts college. I've still never had a class with more than 30 people in it. I have no idea how I'll respond to a big, anonymous lecture course. Even if the difference is a 30 person intro class at Chicago versus 50 at Columbia, that could be significant for me.

* Relatedly, I've been told that Chicago's small size mixed with its lack of many CRTers could redound to my advantage, as I'll stand out and be more able to attract faculty attention. Even if I don't quite buy that the small CRT population is actually a good thing, I do think it may be true that I'll be more likely to be able to actually catch a glimpse of my professors beyond the podium at UC than at CU, and that'd be nice.

* It's not in New York. I don't have any strong feeling either way about Chicago. I do possess an irrational dislike of New York. I say irrational not because it's totally groundless -- I've been to NYC before -- but because it's not grounded in any particular bad experiences I've had there. I just find New York to be a bit grimy, a bit shadowed, and a bit gruff -- particularly for someone who's spent the last four years in the land of open friendliness that is Minnesota.

* Money: Chicago gave me an award, Columbia didn't. Again, not really a huge consideration, given that the size of the award is rather insignificant, and that for a variety of reasons I'm not all that worried about paying student loans, but for completeness sake, there it is.


So basically, Columbia's got faculty match, and Chicago has the size and the institutional identity as an academic training ground. I have an inclination, but that inclination has switched before (in fact, it's shifted from one to the other and back again several times now). We'll see how the visits go. Any advice would be appreciated.

Montana Purple?

Kos has gotten a hold of a poll which seems to indicate Montana is in play -- at least if Obama is running:
General Election, 4/6. Likely voters. MoE 4.5%

John McCain 48%
Barack Obama 43%

John McCain 56%
Hillary Clinton 36%

Now, normally I'd consider a poll like this akin to those ones which say Obama might lose Massachusetts in November -- just one of those quirky but utterly unfeasible things that pop up when you poll six months out of election day. But here, I actually see a there there. Democrats are experience a bit of a resurgence in the Big Sky state. Tester's upset Senate victory followed Brian Schweitzer's rise to the governor's mansion, where he has enjoyed a wildly popular reign in office. And Obama has shown real drawing power in the sparsely populated plains and rocky mountain region.

Ultimately, I don't think he'll win Montana, because to do so would require an investment of time and resources not worth its three electoral votes. But just the fact that it is even on the map shows how Democrats are expanding the playing field -- and exploiting a very favorable national climate.