We Are All Sotomayor

Michelle Cottle nails it:

Not to state the obvious, but an upper-middle class white guy reared in the suburbs is shaped by his experiences, carries certain assumptions, and views the world through a particular prism as much as a working-glass Puerto Rican gal from the Bronx, or, for that matter, the half-black son of a single mom raised in Hawaii. The person belonging to the cultural/ethnic/religious/gender/racial demographic that has traditionally dominated a field (and thus whose perspective has long been the default) may not have given as much thought to his prism as a member of a non-dominant group. But that does not make his prism a neutral one. It simply allows him to more freely indulge his delusions of pure rationality and objectivity.

We all come from a perspective. There are no exceptions, and serious damage is done by those who deny it.

Introspection and intellectual growth doesn't mean trying to transcend perspective. It means striving for the sort of critical awareness that lets us grasp the effect of our social location, account for it, and do our best to twist around in our cement boots (to borrow from Stephen Feldman) and catch glimpses of alternate paths and states of being.

Yummy Yummy Constitutions

I'm reading Pierre Schlag's new article, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803 (2009). It is, shall we say, strange. Quite out there, even for me, and I tolerate quite a bit of out there. This isn't an insult -- Prof. Schlag is quite deliberately intending to be out there, complete with "autonomous" footnotes that talk back to the author and refuse to do what they're told. For example, footnote 64 brags about including a pin cite, footnote 66 tells you to "See (or not) Symposium, Bush v. Gore, 68 U. Chi. L. Rev. 613 (2001)", and footnote 67 remarks "Also, do you like the small cap font above? I live for that." (I, too, have an intense adoration for small caps, and detest legal citation modifications which omit it. It pains me that blogger doesn't let me write in that font, and I'm forced to choose between lower-case or normal ALL CAPS!). I guess I shouldn't call it "footnote" anyway, because in footnote 30 it named itself "Daniel."

So that should give you a taste of the weirdness. The thesis of the article, as best as I can discern it, is that legal scholarship is "dead" (that part he's clear on) -- outside the treatise writers, it is a bunch of professors talking to themselves about imaginary things, listened to by nobody, with no effect and no real hope for an effect except that it transmits to the next generation of law students that this is what law is: a sort of self-important mediocrity existing in the middle of the bell curve between excellence and sloth (only trying desperately to hide the mediocrity, like an upper-class socialite treats her husband's alcoholism).

Eh. I'm probably willing to give this thesis more credence than 99% of the legal population, and I'm still saying: Eh. But this passage was golden:

I once read an article that purported to elaborate about what the Constitution should be. Now what struck me as odd was that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution is. This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not anchored in what the Constitution is (whatever that might be), then why not go for broke: I say let’s have a constitution that guarantees universal health care, tastes a lot like Ben & Jerry’s ice cream, and is laugh-out loud funny. You leave it to me? I say: Go big. (833)

The Law Journal published four responses to Prof. Schlag's article, which you can access from here: they're by Richard Posner, Robin West, Daniel Ortiz, and Richard H. Weisberg. Dan Filler comments as well at The Faculty Lounge, where he notes that the conservative (if iconoclastic) Posner "found himself in far more agreement with Schlag than he ever expected."

This doesn't surprise me all that much -- not only is Posner quite the iconoclast, but he's always been relatively close to the CLS positions that Schlag represents, just from a significantly more right-wing (and empirical friendly) stance. It's one of the reasons I find Posner so interesting, as a left-leaning fan of pragmatist and CLS/CRT style thought. I haven't read Posner's response yet, but I'll bet it's a good one.

One More Quote of the Day

Same source as the last one:

Legal scholars can perform an edifying role by broadening the perceived scope of legitimate institutional alternatives. One way to do this is to demonstrate the contingent and malleable nature of legal reasoning and legal institutions. The greatest service that legal theorists can provide is active criticism of the legal system. Criticism is initially reactive and destructive, rather than constructive. But out mistaken belief that our current ways of doing things are somehow natural or necessary hinders us from envisioning radical alternatives to what exists. To exercise our utopian imagination, it is helpful first to expose the structures of thought that limit our perception of what is possible. Judges rationalize their decisions as the results of reasoned elaboration of principles inherent in the legal system. Instead of choosing among available descriptions, theories, vocabularies, and course of action, the official who feels "bound" reasons from nonexistent "grounds" and hides from herself the fact that she is exercising power. By systematically and constantly criticizing the rationalizations [*59] of traditional legal reasoning, we can demonstrate, again and again, that a wider range of alternatives is available to us.

Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 58-59 (1984).

Quote of the Day

I distinguish nihilism both from what I call rationalism and from my own position, which I prefer not to label but which for clarity's sake I will here call irrationalism.... Rationalism encompasses two fundamental assumptions, neither of which I accept. The rationalist believes that a rational foundation and method are necessary, both epistemologically and psychologically, to develop legitimate commitment to moral values; she also believes that such a rational foundation and method either already exist or can be discovered or invented. Nihilism is only a partial rejection of rationalism: The nihilist rejects the second assumption, but not the first. Thus a nihilist would argue that a rational foundation is necessary to sustain values but that no such foundation exists or can be identified. This sort of nihilism leads directly to psychological feelings of impotence and despair, and to the sense that nothing matters, because what we desperately require to make our lives meaningful is impossible to achieve. My position rejects both assumptions. We do not have a rational foundation and method for legal or moral reasoning (in the sense that traditional legal theorists imagine such rational foundations to be possible); we do not, however, need such a foundation or method to develop passionate commitments and to make our lives meaningful. This formulation removes the dilemma that is the basis for the despair of the middle position. I prefer not to describe my position as "irrationalism" ... for the same reason I decline to adopt nihilism as a way to describe myself. It would be misleading and confusing to appear to be advocating that decisions be made "irrationally" -- without connection with discernable goals. A better term might be pragmatism. I would prefer, as would Mark Tushnet and Richard Bernstein and Gerald Frug, that we stop thinking about moral, political, and legal choice in terms of the dichotomies between reason and emotion, law and politics, rationality and irrationality, objectivism and relativism. These dichotomies are inadequate to express the dilemmas of social life.

Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 4 n.8 (1984).

A friend once asked me a question that was premised on this very dilemma -- she feared that without rational foundations everything ceases to have meaning. The premise, as Singer shows, is not necessarily correct: we don't need objective foundations to engage in meaningful lives. Hence, his epigraph, which I offer as a bonus quote:

After they had explored all the suns in the universe, and all the planets of all the suns, they realized that there was no other life in the universe, and that they were alone. And they were very happy, because then they knew it was up to them to become all the things they had imagined they would find.

Lanford Wilson, 5th of July 127 (1978)

When Gibberish Goes Wrong

The head of the Carleton Conservative Union sent me a link to a piece called The Post-Left: An Archeology and a Genealogy, calling it "provoking". For the sake of the college I am leaving behind, I can only hope he meant something other than "thought provoking", or if that's too much to ask, "provoking thought about how awful it would be to believe this is worthwhile scholarship", because otherwise I have serious fears about what my dear Carleton conservatives consider to be a compelling argument.

[Update: Thus far it appears my prayers have been answered, as all the responses from the CCU listserve I've received have been in agreement that this article is only "provoking" in the sense of making me want to throw something.]

The author of the piece is one Gabriel Noah Brahm Jr., and the outlet he published it in is known as Democratiya, a journal dedicated to book reviews. In their own words:

Democratiya aims to be accessible to 'the common reader'. The discipline of the plain style, and a refusal of the obscurantist prose of contemporary academia, is today a political act of the first importance. We seek good writing, less adorned and more luminous, as well as thoughtful analysis, and a bit of style. Anyone seeking a model should look at Dissent. Careful exposition of the central arguments of the book under review is important. But so is the critical response of the reviewer. Authors will have a standing right of reply and reviewers a standing right of rejoinder.

I give this brief prologue just to highlight all the more the ridiculous manner in which Brahm writes. Here is a sentence from his "review" (I never did figure out what precisely he was reviewing -- an observation which rapidly took on multiple layers of meaning as I muddled through). Not just any sentence either: the very first sentence:

A synchronic (structural) and diachronic (historical) analysis of today's anti-Western left is sorely needed.

And here is the first sentence of Part I ("Archeology of the Post-Left: The Case for Discursive Regime Change"):

Post-left thought is an exercise in ressentiment unhinged from politics in the Aristotelian sense of politike, or the 'art of the common life.'

"Common reader", indeed. Now, I like good old fashioned jargon as much as any fine leftist. And I know it when I see it. So tell me: Is there any doubt at all that Brahm is trying to mimic the very "obscurantist prose of contemporary academia", that of the very leftists (or post-left or whoever it is he's talking about -- more on that in a moment) he's reacting against?

So the review is a catastrophic failure of style (is this a political failure "of the first importance"?). Perhaps it can do better under the "thoughtful analysis" or "careful exposition" rubrics. It'd be an easier task for me to evaluate if I had any idea what Brahm is reviewing, but it is never specified -- Brahm appears to want to take on the entire "post-left" writ large. Not quite a "review" then, but still, maybe Brahm can make some insightful argument on what the "post-left" is, and why we should care.

Or maybe not. Brahm does, to his credit, give a reasonably (for an obscurantist academic, anyway) coherent list of six tenets held by the "post-left":

1. Inverted Exceptionalism. Take the old 'exceptionalist' idea and flip it. America is unique among nations – just not uniquely good, that's all. The horrid US, with its crude consumer culture, unparalleled racism, and war-mongering politicians, is to blame for everything.

2. Post-Zionism. Ditto the above for Israel. One is the tool of the other in the US-Israel relationship, though it's not clear which is which. For Walt and Mearsheimer, Israel manipulates the US. For Chomsky, it's the reverse. In any event, Israel's right to exist is put in question (at best).

3. Third Worldism. The wretched of the earth ('multitudes,' whatever) are not just unlucky but morally superior to the earth's beneficiaries. Empowered by powerlessness to take the place of the proletariat in conventional Marxist doxology, the Third World Other can do no wrong. It's all 'resistance' whatever it is, up to and including terrorism. In this salvation myth, any two-bit despot – from Hugo Chavez to Mahmoud Ahmadinejad, Hasan Nasrallah, even Osama bin Laden – can be seen to represent a salutary rebuke to American Capital and The West. So the millenarian imagination persists, after 'the end of history'.

4. Cultural Revolution. It's Manichean also. Because of #1 and #2, a complete transformation of consciousness is needed to wipe away all the micro-corruptions of US-led capitalism, and replace these with more salutary (revolutionary) habits of mind (to be discovered thanks in part to #3). Eventually, everything 'bourgeois', 'white' and 'male' will have to go. For now it can all be 'deconstructed'. Stir in to this 'methodology' heavy doses of Sixties-style antinomianism and Seventies-style New Ageism, and you have a heady cocktail: the mind slips its moorings.

5. Totalitarian Ideology. Ah, but moorings are so very reassuring when one finds oneself adrift! In The Origins of Totalitarianism, Hannah Arendt outlined the closed-world world-view of the totalizing mind and its self-serving auto-validating procedures. She was talking then about Stalinism and Nazism, but it works for the post-left too (if that sounds like a harsh comparison, see #6 below). [4] For inside the cramped and airless theoretical space of the post-left one finds that (a) every question receives an exhaustive total explanation, situating the smallest detail of an argument within a vast theodicy with no outside and little room for ambiguity or surprise. Nothing escapes and no light gets in, while (b) such explanations are independent of and resistant to experience. The post-left's is an entirely 'a priori' structure of thought. And this inclusive, arbitrary narrative without a referent is also (c) ultra-consistent. Why not, when you're making it up as you go along? Not only does everything fit that gets in, and nothing gets in that doesn't fit, but the results are always the same: the same demons, the same victims. And finally (d) we find the ascription of collective guilt to 'enemies'. The condemned in the post-left scheme of things will be judged not according to what they do or say or think but what they are. The post-left, in short, offers its followers a tidy picture of a messy world, suitable for lazy and credulous minds.

6. Islamism. With #1-5, the nascent post-left prepared the way for the embrace of radical Islamism after 9/11 as a form of 'resistance', indigenous to the Third World (#3), aimed at a guilty US (#1) and Israel (#2), striking a blow for 'difference' (#4), that simply had to be good in some way (#5). And it was this final element, I suggest, that catalyzed the other ingredients to produce the post-left proper.

Hopefully that dispelled any doubts that my mockery of its style resulted from passages out of context! In any event, I read this section, and I am at once illuminated and confused. Illuminated, because I think I've got what Brahm means by "post-left". Someone is "post-left" if they think that America and Israel do everything wrong and are the supreme evils, that the "third world" can do nothing wrong, that we need a revolution to correct these corruptions and erase every vestige of them, in a narrative is totalitarian and all encompassing, and that the immediate political manifestation of the whole deal is an embrace of militant Islamism. None of these elements are cited anywhere, of course, despite the fact that the essay is footnoted.

Confused, because while I certainly can think of people who embrace some of these elements (though rarely in the cartoonish version Brahm lays out), and perhaps can conceptualize someone adhering to all of them, I am given no serious reason to believe that this nexus of views represents anything approaching a movement, much less an influential one, even amongst "the left". Though "post-left" would seem to imply something "beyond" or "after" the left, it is clear Brahm believes the ailment he so meticulously describes to be some sort of malignant sub-species of leftist discourse. At this point in my read, my feeling was that even if this argument was being robustly maintained, I have no idea what it has to do with "the left". Would it not be just as sensible to say that these "post-leftists" hate the "conventional(?)" left, and vice versa, and proceed from there? Not if the purpose is to engage in the academic S&M that constitutes supposedly liberal folks flogging "the left".

It's possible I am wrong, of course, and the "post-left" infestation is in fact running wild through left-wing circles. Already, however, there is reason to be skeptical on this accord. If the plague were so wide-spread, one would expect it would be easy to find examples -- and once found, they would be, you know, "left." Alas, this appears to be too much to ask. Of the three people he identifies as indicted under this model, only one can in any true sense be identified as of the left at all. Noam Chomsky is most certainly left-wing. Stephen Walt and John J. Mearsheimer most certainly are not, unless neo-Realism is suddenly a leftist ideology. Why they are persistently lumped in with the left eludes me, save the fact that they nourish the idea that only leftists have problematic views with regards to Israel -- hardly sufficient reason for the categorization. There goes "intelligent analysis." But it was a flippant reference anyhow. Maybe if we keep going, we will see how post-leftism is a persistent thread throughout the theorizing of the left academy.

No, as it turns out, our original instinct was correct after all. To buttress his argument that the "post-left" as he describes it is a salient force, Brahm cites to ("engages with" would be far, far too kind) a grand total of four people (not including the aforementioned one-off for Chomsky, Walt & Mearsheimer): Michael Hardt and Antonio Negri (who should really count as one since they co-wrote the book in question), Saba Mahmood, and the ever-present Judith Butler. It is not even worth our time to "address each in turn," for the simple reason that even if they all had co-written a book together arguing precisely this "post-left" ideology that Brahm says is so prevalent, four people are not enough to prove even a trend, let alone a worrisome one. In fact, from what little I know of them, I would not be surprised if both Hardt & Negri, and Mahmood, would fit roughly under Brahm's post-left frame. H&N are old-school Marxists, of course, and old-school Marxism has fallen somewhat out of style amongst the rest of the left, as Brahm might have noticed if he had stopped fighting the Cold War along with the rest of us. Mahmood I've been singularly unimpressed with when I've come across her, but that does not happen often. Regardless, even with this meager cast of characters Brahm does not actually link back the words of these authors to his six-element list of post-left tenets. One might think that if you're struggling that mightily to find a soul to fill your scarecrow, there might be larger problems afoot.

It's Butler, however, that deserve special mention here. The citation to Butler comes not to one of her academic texts, but to an answer she gave during a Q&A session after delivering a speech, as reported by a blog, so already we're on shaky terrain. This is the sentence Brahm devotes to her: "Judith Butler, professor of Rhetoric at Berkeley, and leading figure of the post-left, endorsed Hezbollah and Hamas as 'part of the global left'." (But are they "post-left"?) Now, recall Brahm's third element of what constitutes "post-left" -- that the third worlders (of which Hezbollah and Hamas are presumably a part) can do no wrong. Now, append the part of Butler's quote which he leaves out, but which is quite present in the blog post he links to in the footnote: "but [it] doesn't stop us from criticizing them."

Selective quotation is a grievous academic sin, particular when it leaves out such important modifiers like "but". In this case, the "but" seems to knock Butler conclusively out of the "post-left." The third world, it seems, can do wrong after all! Butler specifically says that their membership in the "left" (however defined) doesn't preclude that. In other words, her argument is the precise opposite of the typology Brahm puts her in. This is borderline academic misconduct -- though perhaps his peers will take into account the entirety of the article and conclude its actually parody. To be blunt, it's his only hope.

To be very, very kind, Brahm is shadow-boxing at a nearly non-existent foe (and losing). To be less kind, he's trying to smear a wide swath of "the left" via association to this phantom via a menagerie of dodgy argumentative practices. One of Brahm's early complaints about the "post-left" is that its "explanations are independent of and resistant to experience." Experience teaches us that virtually nobody is making the arguments Brahm is talking about, and that those who are possess virtually no influence. And experience has now continued to teach us that -- when writing and reacting to the arguments of the left in all its diversity and splendor -- we should look to brighter and more sophisticated thinkers than Gabriel Brahm.

Po-Mo Bernstein

David Bernstein is complaining about how liberal bloggers are protesting Phyllis Schlafly's honorary degree from Washington University (St. Louis). Specifically, he objects to an excerpt of this post:

Nor do I believe that conservatives should never receive honorary degrees. There are conservative scholars who do work that is respected within academia—many economists, for example—and they would not be inappropriate candidates for such an honor. Nor would I have a problem with conservative pundits, so long as they’re sane and genuinely distinguished (which these days admittedly narrows the field to practically zero), such as the late William F. Buckley. I’ll even grudgingly accept the reality that conservative Republican elder statesmen are regularly awarded these things. Though even here there are limits—while personally I wouldn’t protest the awarding of a degree to George H.W. Bush, even though I find him pretty hateful, far-right lunatics like Cheney, Dubya, and Jesse Helms should be entirely out of bounds..... Because, as much as conservatives may whine and scream to the contrary, liberalism and conservatism are not moral equivalents. Because, on the one side you have the thinkers and activists who have advanced freedom, social justice, and human rights, and on the other, you have those who have attempted to thwart all those things

Bernstein dryly notes that this hostility towards conservatism may be one of the reasons right-ward individuals stay out of academia.

I agree and I disagree, but I think that Bernstein's statement is very revealing. After all, his argument boils down to a very left-identified post-modern claim about how normative statements about "morality" and "right and wrong" are often masks providing justification for relations of power. After all, one could presumably justify not giving someone like Schlafly an honorary degree on the fact that her views are evil, poisonous, bile -- that's his interlocutors argument. But Bernstein does not appear to accept this as a valid justification. Liberals who engage in this sort of strong moral critique of a Schlafly, or a Dubya or a Jesse Helms, are really just perpetuating particular norms of power -- norms which act to (and perhaps are intended to) marginalize and exclude alternative voices (in this case, conservatives). Only by deconstructing the mechanics of this putatively "moral" critique can we recognize how it is a function of power, and seek to remedy the underlying inequality.

And to some extent, I agree. I've registered my support for limited political affirmative action in academia, and acknowledged the potential that a "hostile environment" towards conservatives may push them away from the profession even in absence of overt discrimination.

The problem, though, is that I doubt there is any other context where Bernstein would make (indeed, refrain from mocking) this form of argument. And to turn the stock conservative response back onto him: why should we refrain from calling evil by name? Why shouldn't we avoid honoring those who traffic in immorality? Jesse Helms was a flagrant racist. George W. Bush and Dick Cheney have enacted a regime of torture. Phyllis Schlafly has dedicated a career to undermining the principle of equal human rights and dignity. Is Bernstein now in the relativist camp, saying that we must pretend to ignore these inconvenient facts as blurring the focus on the "power structure"? I see no other explanation.

And as for me? There is, in my view, no way to avoid making value judgments -- and even if that's not true, giving an honorary degree is a rather explicit example of making a value judgment anyway. Universities, like all other institutions, have to decide what values they stand for. Open exchange of diverse ideas is one -- which is why I promote the inclusion of smart, qualified conservative thinkers into the academic structure (my support for race-based affirmative action is on precisely the same grounds). But just as our desire to remedy inequalities in race doesn't mean we should admit any Black person who strays across our path, likewise our desire for intellectual equity does not mean that any prominent conservative thinker deserves our honors. Phyllis Schlafly is an unambiguous force for wrong in the world -- wrong in ways that really are no longer controversial from within any reasonable intellectual standpoint, wrong in ways that I doubt Bernstein would disagree with. It is reducing our standards to non-existence to give her an honorary degree. So while I welcome Bernstein to the post-modern camp, and look forward to his support on all other issues which demand that we undermine entrenched hierarchies of domination, he still has some practicing to do.

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.

You Can't Have It All

Though I think this Duck of Minerva post on "certifying idealism" comes down a little hard, this paragraph is very wise and deserves repeating:

[T]he conjoining of "certifying" and "idealism" troubles my Weberian sensibilities to no end. If we are doing anything at all for our students -- and this applies broadly to everyone in the academy, I think, but perhaps especially to those of us who teach about politics -- we ought to be pressing them to deal with the conflicts between their ideals and the means of implementing those ideals. We should also be pressing them to deal with the fact that not all idealistic value-commitments point in the same direction, that not all normatively desirable ends can be accomplished all at once, and that in the end not all ideals can be rationally reconciled -- in other words, our students need to be appraised of the failure of the Enlightenment project of bringing all values together under the common head of Reason, and of the consequent need for hard and perhaps un-rationalizable choices and commitments.

Not everything that falls under the metric of "good" can be accomplished at the same time. Trying to do that usually leads to more harm than good, either because it engenders quiescence in people who refuse to do anything unless it can be done perfectly (which means nothing will ever happen), or because it encourages people to jettison values that really are important wholesale because they see them as barriers to the "ultimate" project (be it fostering the revolution, increasing liberty, reducing the size of government, securing the nation, or what have you). It is, of course, true that the opposite is true as well: people can be too quick to compromise and never take a stand to demand more than the bare minimum, and political movements can spin their wheels if they get stuck in an endless cycle of aimless, small-scale demands without any sort of larger vision of what they want to accomplish. But this interplay merely reinforces the point: mediating between those poles is tough, it will inevitably resist formula, and the best strategy is not a naive belief that one can be a messianic figure for political change, but rather acquiring the social and political agility necessary to make the world a better place.

On Stereotypes

Walter Lippmann was the founder of The New Republic and was once described by Teddy Roosevelt as "the most brilliant man of his age in all the United States." I've been reading passages from his 1920 masterpiece, Public Opinion, for a class. I just want to excerpt some of his thoughts on stereotypes, which are way ahead of his time (they remind me of similar work by Martha Minow and Angela Harris on categorization, but they were writing a good 70 years later) and ring very true to my own thoughts on the subject.

Lippmann argues that there are at least two main functions to stereotyping. The first is economy--it would simply be impossible to deal with the world if we were forced to be in a constant state of reflection and critique towards the world around us. We need stereotyping to live, to simplify an unimaginably complex world.

There is an economy in [stereotyping]. For the attempt to see all things freshly and in detail, rather than as types and generalities, is exhausting, among busy affairs practically out of the question....
[...]
The subtlest and most pervasive of all influences are those which create and maintain the repertory of stereotypes. We are told about the world before we see it. We imagine most things before we experience them. And those preconceptions, unless education has made us acutely aware, govern deeply the whole process of perception. They mark out certain objects as familiar or strange, emphasizing the difference, so that the slightly familiar is seen as very familiar, and the somewhat strange as sharply alien. They are aroused by small signs, which may vary from a true index to a vague analogy. Aroused, they flood fresh vision with older images, and project into the world what has been resurrected in memory. Were there no practical uniformities in the environment, there would be no economy and only error in the human habit of accepting foresight for sight. But there are uniformities sufficiently accurate, and the need of economizing attention is so inevitable, that the abandonment of all stereotypes for a wholly innocent approach to experience would impoverish human life. (59-60)

Everyone stereotypes, and nobody can avoid it. When I step into a car, I use my stereotypes of previous car trips to assume that it will take me where I want to go, and won't explode when I turn the ignition. I would exist in a state of paralysis if I was to constantly question those sorts of assumptions. So when I indict stereotypes (and I do think they're quite dangerous), I am not saying we should stop stereotyping, for we can't. But more on that later.

The second function of stereotyping is, to quote Lippmann, "as defense." Stereotypes allow us to continue to live in a world that is familiar, comfortable, and just--which is why we defend them so vigorously from challenge.

[Stereotypes] are an ordered, more or less consistent picture of the world, to which our habits, our tastes, our capacities, our comforts and our hopes have adjusted themselves. They may not be a complete picture of the world, but they are a picture of a possible world to which we are adapted. In that world people and things have their well-known places, and do certain expected things. We feel at home there. We fit in. We are members. We know the way around. There we find the charm of the familiar, the normal, the dependable; its grooves and shapes are where we are accustomed to find them. And though we have abandoned much that might have tempted us before we creased ourselves into that mould, once we are firmly in, it fits as snugly as an old shoe.

No wonder, then, that any disturbance of the stereotypes seems like an attack upon the foundations of the universe. It is an attack upon the foundations of our universe, and, where big things are at stake, we do not readily admit that there is any distinction between our universe and the universe. A world which turns out to be one in which those we honor are unworthy, and those we despise are noble, is nerve-racking. There is anarchy if our order of precedence is not the only possible one....

A pattern of stereotypes is not neutral. It is not merely a way of substituting order for the great blooming, buzzing confusion of reality. It is not merely a short cut. It is all these things and something more. It is the guarantee of our self-respect; it is the projection upon the world of our own sense of our own value, our own position and our own rights. The stereotypes are, therefore, highly charged with the feelings that are attached to them. They are the fortress of our traditions, and behind its defenses we can continue to feel ourselves safe in the position we occupy (63-64).

I want to clarify Lippmann's claim here. We do need stereotypes to provide order in our lives, part of which includes giving us our own sense of value and meaning. That doesn't mean that the particular stereotypes we hold are the only ones that can give us authentic value and meaning. However, it feels that way to us, which is why we defend our stereotypes with such ferocity.

If experience contradicts the stereotype, one of two things happens. if the man is no longer plastic, or if some powerful interest makes it highly inconvenient to rearrange his stereotypes, he pooh-poohs the contradiction as an exception that proves the rule, discredits the witness, finds a flaw somewhere, and manages to forget it. But if he is still curious and open-minded, the novelty is taken into the picture, and allowed to modify it.... (65-66)

I hope the first response strikes us as familiar, because we've all done it.

As I mentioned above, the process of stereotyping is inevitable. It is also dangerous. It should go without saying that the instinct to retreat into a "fortress" whenever information that clashes with our prevailing viewpoints is not a positive one. So, is this post merely an exercise in fatalism? What do we do with the knowledge that an inextricably part of our human behavior is also a toxin to a functioning democratic polity?

What matters is the character of the stereotypes, and the gullibility with which we employ them. And these in the end depend on those inclusive patterns which constitute our philosophy of life. If in that philosophy we assume that the world is codified according to the code which we possess, we are likely to make our reports of what is going on describe a world run by our code. But if our philosophy tells us that each man is only a small part of the world, that his intelligence catches at best only phases and aspects in a coarse net of ideas, then, when we use our stereotypes, we tend to know that they are only stereotypes, to hold them lightly, to modify them gladly. We tend, also, to realize more and more clearly when our ideas started, where they started, how they came to us, why we accepted them. All useful history is antiseptic in this fashion. It enables us to know what fairy tale, what school book, what tradition, what novel, play, picture, phrase, planted one preconception in this mind, another in that mind (60).

This is the kicker of the argument. One must condition one's worldview to have some "give", to expect challenges and to expect that it will be shaped and changed by alternative narratives. To be agile, to put it briefly. The best part is, we do not need to abandon our stereotypes (as if we could) to do this! We must only be cognizant that we are holding them, and "hold them lightly." So, my obligations as a citizen under this paradigm are twofold:

1) Be explicit about what my biases are from the start, and recognize that they are just that;

2) Not keep a chokehold on those biases in the face of conflicting information.

I've seen people who experience the type of panicked vertigo that occurs when one argues to them that all their preconceived notions are nothing but that, and that the quest for an all-encompassing code is futile. These people panic because they want knowledge that is beyond or above a mere stereotype. This only occurs, then, when people feel that order is impossible without certainty--and this is manifestly not the case. I may operate under the stereotype that my car will take me where I want to go, but if it breaks down, my entire worldview doesn't break down with it. I can deal with the indeterminacy of life when it comes to my car, maintaining an expectation about what my car will do while recognizing that this is not the way it has to or always will be. Philosophy works the same way, and there really isn't an alternative to it.

Lucy In The Sky

Sasha Volokh points to a new article by Mike Seidman, Critical Constitutionalism Now [75 Fordham L. Rev. 575 (2006)], which argues that the arguments of the Critical Legal Studies movement have been vindicated--by President Bush's, er, creativity in interpreting legal texts and norms to justify some of his more extreme policies on the war on terror.

I think that's true, although I hardly think it strikes a mortal blow against the CLS movement. Much the opposite, I think this is precisely what modern CLSers would predict--conservatives mask their policy preferences as "rule of law," when in reality they are just contorting law to fit the policy. This is how law can be enlisted so easily to impede social change--it's content never is unambiguous and thus no conservative will ever feel compelled to make any earth-shaking or radical reform to society via law.

In sum, I feel like Seidman's understanding of the history and "ideology" (such as it is) of CLS and successor movements is weak, although the prescriptive portions of his paper are better. However, he does score significant points for this passage, explaining why CLS scholars think the discourse of rights can actually be harmful towards achieving social reform:

The rhetoric of rights tended to objectify and distort the actual situation in which people found themselves. Rights were abstract, alienating, and individuating rather than concrete, liberating, and unifying. 12 These deficiencies were, in turn, reinforced by what might be called the "Lucy-and-the-football" phenomenon. The possibility of vindicating legal rights was endlessly dangled before the dispossessed. Rights were in fact vindicated frequently enough so as to keep people in the game. However, the indeterminacy of rights allowed courts to yank them away just when any truly meaningful reform seemed within reach. Consequently, endless time and energy were wasted in the pursuit of legal remedies, when the time might better have been spent organizing nonlegal popular resistance. (578)

Agree with it or no, I certainly think that portrays the argument in a delightful, succinct, and lucid manner.

Incidentally, Volokh-the-younger also links to Jack Balkin's Deconstruction's Legal Career [27 Cardozo L. Rev. 719 (2005)], which is a spectacular piece and one I cannot recommend highly enough.

Dead Post-Modernists....and VAMPIRES

There's got to be a joke here somewhere....

First, acclaimed French post-modernist Jean Baudrillard has died. LGM remarks: "Jean Baudrillard did not happen."

Second, via Ann Bartow, an interesting twist regarding the papers of (already dead) French post-modernist and deconstructionism pioneer Jacques Derrida:

When a vampire expert allegedly seduced a tipsy UC Irvine student four years ago, he inadvertently set off a chain of events that now jeopardizes the school’s control of a dead philosopher’s prized archives.
[...]
According to multiple sources, Derrida wanted UCI to halt its investigation of a Russian studies professor, Dragan Kujundzic, who was accused of sexually harassing a 25-year-old female doctoral student. So he tried to use his archives as leverage to derail the case, they said.

Weird. Disturbing.