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.

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.

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.

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.

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!

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.

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.

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.

March on Washington

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

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.

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.

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.

Rate That Apology!

Minnesota State Rep. Pat Garofalo (R) posted the following tweet a few days ago:

"Let's be honest, 70% of teams in NBA could fold tomorrow + nobody would notice a difference w/ possible exception of increase in streetcrime."

Booo! But that's old news. Garofalo has now, after initially playing defense, apologized:

"I sincerely apologize to those who I unfairly categorized," said Garofalo, who's seeking a sixth term in the fall. "The NBA has many examples of players and owners who are role models for our communities and for our country. Those individuals did not deserve that criticism and I apologize."

I find apologizes interesting, because there are some standard tropes which people typically use and which they are always criticized for. The most prominent is "I apologize if you were offended," which denies personal responsibility and foists the problem onto the (bizarrely) offended party. People always use this construction and it always goes over poorly, which makes me wonder when they're going to update whatever PR manual recommended it in the first place.

So off the bat, I give points to Garofalo for not saying that, and for specifically identifying the "criticism" itself as what was problematic, not the offense taken to it. If I was being uncharitably I could quibble with "those who I unfairly categorized" (arguably implying that there are a not-trivial number of persons fairly characterized as street criminals), but I'm feeling generous.

Garofalo proceeded to say:

"I don't have a racist bone in my body. I pride myself on the fact I've tutored in inner-city Minneapolis," Garofalo said, adding there are "no excuses. I apologize. I'm responsible for my actions."

Many people would say that the first part of that passage contradicts the second, but the instinct to try and contextualize is so strong that I don't think it's fair to automatically equate it with an "excuse". That being said, the "I don't have a racist bone in my body" is annoying defensive and not something Garofalo is necessarily in a position to verify -- certainly, his tutoring gig doesn't verify it. What would be ideal -- though it would never happen -- is for someone to acknowledge the possibility of latent racial prejudice and then commit to working to overcome it.

Anyway, all in all -- 6.5/10. Not bad, could be better, but still an improvement over the norm.

2014 Will Be The Year

Michele Bachmann accuses Jews of "selling out" Israel.

“What has been shocking has been seeing and observing Jewish organizations who, it appears, have made it their priority to support the political priority and the political ambitions of the president over the best interests of Israel. They sold out Israel,” Bachmann said.

She said this in reference to a Feb. 27 letter by major Democratic donors, many of them Jewish, to party congressional leaders urging them not to advance new Iran sanctions legislation. “This is clearly against Israel’s best interest,” she said.

Oh we're doing this dance again? Let's review the steps:

1) (Non-Jewish) Republicans say they want to be Jews' best friends, particularly with respect to Israel.

2) Jews express policy positions with respect to Israel that differ from those advocated by Republicans.

3) Republicans, cognizant of the greater stakes Jews have in this issue and respectful of Jewish opinions generally, rethink their positions. Republicans accuse Jews of being delusional and/or betraying their own people.

4) Republicans express bafflement that Jews continue to vote Democratic.

Bizarrely, Jews don't react positively when non-Jews lecture them about what terrible Jews they are. It's the strangest thing -- it's almost like building a campaign strategy entirely around negging doesn't work.

It Is What It Is

New poll data indicates that 50% of Americans believe that the Constitution protects the right to gay marriage (41% disagree). This is of course good news for supporters of gay marriage. I am curious exactly what this figure means, though. Specifically, when non-lawyers hear the question, do they hear "what is the current state of the law with respect to gay marriage being a right under the equal protection clause?" or do they hear "if you were a judge, how would you decide a case arguing that gay marriage is a right under the equal protection clause?"

The question text reads:

Do you think that part of the Constitution providing Americans with equal protection under the law does or does not give gays and lesbians the equal right to marry?

That seems to at least lean toward the latter interpretation (how would you rule as a judge). But of course, that raises the question of how non-legally trained Americans come to a conclusion on that sort of question -- at least assuming that respondents at least profess to believe that there is a difference between one's moral intuitions and legally correct answers. Whether such a distinction actually exists or not, my understanding is there is substantial poll data which indicates that Americans believe this to be true and believe it to be important, so then the question is how they reconcile that belief with coming to legal conclusions when they know they don't have the requisite legal knowledge to "properly" make them.

Spiting Faces

There's some chatter about a few restaurants in Florida who, to show their dissatisfaction with the Affordable Care Act, have started tacking on an "Obamacare surcharge". What most people are focusing on is the incredibly limited nature of the "fee". Even assuming it accurately reflects costs, we're talking 20 cents on a dinner for one. The horrors! Truly, this massive government overreach will be the death of us all.

But from my vantage point there's another angle to consider. I don't see how this turns out well for the protesting restaurateurs. The number of customers who don't come in because of the extra 20 cents seems scant. The number who don't return due to the political message being sent, though, may not be trivial. If I saw an "Obamacare surcharge" on my bill, I probably wouldn't return to an establishment simply because I'd be deeply annoyed at that sort of hyper-partisan grandstanding. And presumably, the conservative anti-ACA folks can't show up either, lest they demonstrate that the cost of the ACA isn't a big deal. Economic consequences are a self-fulfilling prophecy. And if they're not, then that just demonstrates that we can in fact afford universal healthcare. Either way, not a happy day for someone trying to send a message about the evils of Obamacare.

Let Me Explain

I read this opinion piece by Ryan Goodman, which complains about Chipotle's "food with integrity" marketing strategy. Goodman thinks Chipotle is providing a misleading and unfair depiction of actual farm production. In reality, farming is actually like ....

Insert argument here.

Goodman doesn't say. He never says how actual farming differs from Chipotle's presentation. And obviously it is different -- Chipotle's viral videos are deliberately hyperbolic and dystopian, which contra Goodman is not itself a marker of dishonesty -- but we hear absolutely zero substance on the subject from Goodman. "Go talk with the farmers and ranchers," he says, but without giving the slightest hint as to what they'll say. I couldn't help but think of this:

Does an Originalist Constitution Need a Standing Doctrine?

One of originalism's self-reported strengths is that it fixes constitutional meaning in a time and manner distant from immediate social controversies. The trouble with a constitution that adopts to the times is that constitutional rights are vulnerable to prevailing political winds. You may have robust freedom of speech protections now, because legal elites think it wise, but if tides change those rights disappear as the document "evolves" in another direction. And such politicized interpretations are more likely under a living constitutionalist model, because making constitutional law "in the moment" means that the enactors (i.e., the judges) will necessarily be more prone to self-interested or partisan motivations. They'll have skin in the game (even if it is only ideological) slanting their interpretations; the framers, who crafted their rules distant from today's particular social controversies, are more likely to be objective. And indeed, this is a large part of the reason why we want constitutional entrenchments in the first place: we make decisions today, when passions are cool, precisely because we cannot guarantee how we'll respond in the fires of a particular heated social controversy.

Now compare the above to modern constitutional standing doctrine. Courts can only hear actual "cases or controversies", defined as situations where the plaintiff has suffered a concrete and particular (not conjectural or hypothetical) "injury-in-fact", caused by the defendant, and redressable by a favorable ruling. The rationale is that "concrete adverseness . . . sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Deciding cases only once they've become a case ensures that courts have access to the full range of circumstances and consequences of adopting a particular constitutional rule. By contrast, "advisory opinions" passing hypothetical judgment on legal challenges which have not yet risen to a true adversarial controversy are unreliable because they lack this immediacy -- they operate in an unreal and speculative atmosphere not conducive to accurate decision-making.

These theories of decisional efficacy are in tension. The former (originalism) values distance as a means of securing objectivity, the latter (standing doctrine) favors proximity in order to achieve clarity. If we adopt an originalist methodological approach to constitutional interpretation, it is unclear why we would need or even want to preserve modern standing doctrine (at least in constitutional cases). The whole point, after all, is to decide cases without being mired inside the pressures and obscuring tendency of a genuine social controversy. The latter by definition cannot aid in ascertaining the meaning of the relevant constitutional clause (which was fixed long before); it can only distract adjudicators by drawing out the proximate and partisan consequences of a particular holding.

It is true one can craft a very instrumentalized version of the value of standing doctrine which would still apply even under "originalist" values. Under this rendition, standing doctrine assists courts because the presence of an actual controversy ensures that the relevant legal issues will be argued robustly by legal counsel with a strong incentive to press their case to the fullest. Basically, constitutional standing is valuable because it produces good briefs.

This justification for standing is oft-repeated, but I wonder if anyone believes it. Anyone who has ever observed a courtroom is well aware that standing is not actually any bar to very poorly argued cases, or worse (from the perspective of trying to come to a legally accurate decision), cases with complete mismatches between the skill sets of the attorneys. One often thinks about how one does not want a given set of facts to be the ones which set a particular legal precedent, but as a clerk I was more often worried about the precedent-setting effect of cases where important issues were being inadequately lawyered -- making potential valid arguments sound off-the-wall and foreclosing them for everyone. And even if we could be assured of competent and evenly-matched counsel, it just isn't true that concrete adverseness always promotes a full airing of legal arguments. An actual controversy means that litigation positions are chained to the idiosyncratic interests of the litigants, who may have ample reason to not promote certain outcomes or ways of looking at the case (particularly when we're talking about rules which will govern many future cases -- the problem of "playing for rules").

Once the value of the proximate social circumstances is taken out of the occasion, it is possible that advisory opinions would promote better advocacy precisely because only persons and groups who are highly invested in the issue in the abstract, not just because of how it happens to affect them immediately, would bother to argue for it.

So that's the question for the floor: Is there a tension between the decision-making values of modern standing doctrine and constitutional originalism?