Tuesday, February 23, 2021


There's a common debate that pops up every time a celebrity or some other figure runs into a scandal, one that's serious enough to threaten their career, but not serious enough to put them in prison. A lot of #MeToo cases fall into this category, though this isn't the only case, but it works as one to keep in mind (think Louis C.K.). At some point, after apologizing (whether sincerely or opportunistically) and laying low for awhile, they'll try to restart their profession. Once this happens, the pattern is almost rote:

  1. Some group of people will condemn the person for trying to restart his career ("You won't believe who's attempting a comeback!"), and/or condemn the venue for hosting him.
  2. A different group of people will defend the celebrity, asking whether or not his "whole life should be ruined" and whether he should be prevented from making a living in perpetuity.
  3. The first group of people will retort that not having access to some celebrity spaces is hardly the same as having one's life ruined nor is it a complete bar on any money-making endeavor. Lots of people, I'm told, live perfectly comfortable and money-earning lives without getting standup comedy specials or starring movie roles. Meanwhile, the person's re-entry into the professional space also will have the effect of rendering it unsafe and/or uncomfortable for members of the group the celebrity had previously victimized.
I think there's reasonable purchase in that third move. However, it does carry with it an implicit promise -- that there is some space where the erstwhile celebrity could enter into which would be legitimate (as a means of making money, continuing with their life, etc.). When one says "'not here' is not the same thing as 'life-ruining'", there is tacit "try over there." And that raises the question: where is the "there" that is okay?

Let's take Louis C.K.. Suppose in the wake of his scandal he takes a random, normal-person job -- I don't know, he's working at a call center. Being a former celebrity, he's quickly recognized. And some of the employees are uncomfortable with him around, knowing what he had done to people like them. What happens if they complain, and say "we don't want Louis C.K. in our office?"

The implicit promise in position #3 requires that, for at least some non-theoretical set of cases, that complaint has to be turned aside; notwithstanding that part of the force of position #3 is precisely that Louis C.K.'s presence in a given space exacts costs upon the women already occupying it (and that applies with similar, if not identical, force, if he's working at a call center compared to a club). Given that, do we have confidence that the advocates of position #3 will be able to find circumstances where they say "no, we do not support hounding this person out of this space -- they may not be allowed to redeem themselves in the celebrity sphere, but this place is okay."

It seems we have a classic NIMBY problem, or perhaps a N(R)IMBY problem (No Redemption in My Back Yard). Most of us probably are fine in concept that there exist some space where Louis C.K. goes off to live his life, perhaps not as a celebrity, but not in a state of utter banishment either. But none of us want it to be in our backyard. Redemption is a social good, we agree, but it shouldn't occur here but ... elsewhere -- an objection that will attach to virtually all "heres" with nary a suggestion of viable "elsewheres". Ironically, the most likely "elsewhere" that will be stuck with him over their own objection is an elsewhere populated by people who largely lack social power and influence. Indeed, to some extent, this is a feature of the "he can live his life, but not as a celebrity" account -- it's fine for him to seek redemption, but it should occur among the normies.

This is a problem I've puzzled over, and I don't have a really good solution to it. It's no answer to say that the person should do the work of repentance and redemption before they can make a claim to "live their life" in any space -- the work of repentance and redemption occurs in occupied space; it is impossible to do it from a place of social banishment. And if you're accusing me of a strawman -- nobody is arguing for outright "social banishment" -- then my goal here is to call the bluff a little bit and ask "okay, so where is good?" Is it low-level performances in their field? Interviews with journalists about their misconduct? Working at charities? Can we honestly say that in any of these cases, that we haven't seen at least some pushback -- "they shouldn't be here"? And again, it's not that I lack sympathy for what's motivating that pushback. But I am not sure how far it should go, and how far it can limit itself in going.

Monday, February 22, 2021

Trump's "Liberal"* Eighth Circuit Appointees

As many of you know, I did my clerkship on the United States Court of Appeals for the Eighth Circuit, for the late Judge Diana E. Murphy. It was a fantastic experience. It was also an eye-opening experience, not least because the Eighth Circuit is by far the most conservative court in the country. How conservative is it? I think there's a plausible case to be made that Donald Trump's appointees to the court were to the left of the median active judge on the circuit at the start of his administration.

The active judges at the start of Trump's administration, ordered from most liberal to most conservative (this is my somewhat arbitrary ranking), were:

Kelly, Smith, Shepherd, Wollman, Benton, Loken, Riley, Colloton, Gruender

The ideologically median judge would be Duane Benton. I've italicized the two judges that went senior during Trump's term; he also got two more appointments from judges (Bye and Murphy) who went senior at the tail end of the Obama administration but whose seats were still empty at the start of Trump's term.

Now let's order the current judges (italicizing Trump's appointees):

Kelly, Smith, Grasz, Shepherd, Kobes, Erickson, Benton, Loken, Straus, Colloton, Gruender

Three of four appointees are to Benton's left; the new median is Judge Ralph Erickson. Now, again, there's some amount of arbitrariness to this; I wouldn't read too much into the precise order (e.g., if one flipped Kobes and Erickson I'd hardly have any basis for objecting). Moreover, judges of course can be "liberal" on some dimensions but not on others (Smith, for example, is exceptionally conservative on issues like abortion but is more liberal on issues of discrimination and qualified immunity). And to be clear -- none of these judges (excepting Kelly, the sole Democratic appointee) are liberal under any objective standard. 

But even with all those caveats, there's a decent case to be made that the Eighth Circuit was so outrageously rightward slanted that Trump actually managed to slightly shift the court to the left. That's amazing.

Sunday, February 21, 2021

What Happens When There is No Contraception

The New York Times has a harrowing story about women in Venezuela who cannot access contraception. A raging economic recession has made condoms, IUDs, and other birth control products prohibitively expensive for many poorer women; at the same time, the cost of raising a family has also spiraled out of control. Many women have resorted to shady back alley abortion attempts (it is still illegal in the country), but unsurprisingly these are exceptionally dangerous.

If you're a conservative, maybe the fact that it's Venezuela and you can nyah-nyah about it since Chavez is of course AOC's role model for Americana will make the story resonate more. But let's be clear -- America is not as far off from this as we'd imagine ourselves to be. The legality of abortion is on the very brink, and cases like Hobby Lobby threaten contraceptive access as well -- again, especially for poorer women. It may be that in a few years, the main difference between America and Venezuela is that we have proportionally fewer women in the sort of abject poverty that is comparable to that found in the South American country -- but for those who do find themselves in that situation, this story could easily become a U.S. story as well.