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?

Return on Investment

Tom Perkins (whom you may remember for suggesting that the rich were at risk of being victims of Nazi-style genocide) suggests that we apportion votes to tax dollars:

"The Tom Perkins system is: You don't get to vote unless you pay a dollar of taxes," Perkins said.

"But what I really think is, it should be like a corporation. You pay a million dollars in taxes, you get a million votes. How's that?"

Just like a corporation! Because the idea behind government is that you should get a cut of the proceeds in proportion to your investment! No, wait, in the public sphere that's known as "corruption". My bad.

Also, if I were more of a mathematician, I'd be (even more) offended by this too:

Pressed for examples of how the rich were being demonized, Perkins said that he feared higher taxes.

"The fear is wealth tax, higher taxes, higher death taxes -- just more taxes until there is no more 1%. And that that will creep down to the 5% and then the 10%," he said.

Yeah, not really sure that's how percentages work.

Distractions

For my money, Donté Stallworth has the best response to the idea that a gay player in the NFL would be a "distraction" for his team. To wit: an NFL season will always have distractions. If you can't handle one that is as clearly anticipated and broadcasted in advance as this one, you're doomed on the field anyway. That being said, Scott Lemiuex's contribution on the history of the "distraction" argument and other like claims which play the "it's not me, it's everyone else" game, is very good too.

The Ruthless Suppression of All Dissent Continues

Bills have been introduced in Congress, as well as several state legislators, which would cut or strip funding to organizations (such as the American Studies Association) engaged in an academic boycott of Israel (the bills often have somewhat broader language than that, but nobody denies academic boycotts of Israel are the target. Though, to be fair, no other country is being targeted for an academic boycott). In any event, "merits" of the boycott aside (and I am of course on the record as viewing the BDS movement as fundamentally anti-Semitic in character -- David Hirsh makes the points far more eloquently), one can still view such bills as a serious threats to academic freedom -- a freedom which includes the freedom to take wrong, or even racist, positions.

But undoubtedly, I'm an exception, right? Those dreaded Jewish organizations who are ever-eager to crush the slightest dissonant voices on Israel -- why, they must be leading the charge for these laws? Or not:

Two of the major Jewish groups are not planning to back a new bill that seeks to pull federal funding from universities that boycott Israel, according to a source familiar with the situation.
“The legislation is almost certainly unconstitutional, it’s a bad law, and it reinforces stereotypes about Jewish influence,” said one pro-Israel Democratic strategist familiar with the groups’ thinking. “It’s so bad that AIPAC and ADL oppose it.”
“There’s no way they’ll say they support it,” the strategist said.
[...]
“We welcome any effort to challenge or fight the boycott, divestment and sanctions in colleges and universities,” said Abe Foxman, director of the ADL. “However well-intentioned, we are not sure that this bill would be the most effective means of recourse.”

AIPAC and Abe Foxman -- those are the typical bogeymen, aren't they? And while they aren't mentioned in the context of the proposed federal legislation, the AJC has come out against a similar bill proposed in New York. Together, AIPAC, the ADL, and the AJC comprise a fairly hefty chunk of the Jewish center, center-left, and center-right.

I predict this development to have precisely zero influence on how people speak about the contribution of Jewish groups to this debate.

Can't Stop the Censorship Train

Two more entries on my recent fascination with free speech and the private sphere. Unfortunately, these are not exactly of the highest quality.

The first is an atypically bad post from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.

Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.

Meanwhile, Jenny Jarvie has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.

Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.

What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.

Lessons in Hyphenation

Jon Chait on treating college athletics like a market:

the vast majority of college athletes have negative market value. A reform based on letting them capture their true market value is going to fail to protect the interests of the vast majority of college athletes. This includes not only every athlete in a sport other than football or men’s basketball (which of course includes all-female athletes), but also many of the players who participate in the most competitive football and basketball programs.

I'm no grammar maven, but I'm pretty sure that hyphen is misplaced.

This is How I Vacation

I'm taking my first vacation from work next week (week of February 10). I'm taking vacation now in part because its my birthday on February 11 (and who wants to celebrate in the office), and in part because I didn't take vacation over the holidays because I had volunteered to work on a bunch of cases with filings on or close to New Year's Day. In the immediate term, this means that I have a ton of work to do this week, since I'm trying to get it in under the wire. But nonetheless, it is very exciting -- I'm looking forward to having the week off.

People have asked me "where [I am] going" for my vacation, to which I have answered "my bed." I don't like traveling much to begin with, and in the context of a vacation I view it as basically sacrificing at least a half day if not more for no discernable benefit. I can sleep in and read books in my apartment just fine. Which leads to the second primary way I've prepared for my vacation: buying five books on deliberative democracy, which I will use to help write a new law review article I'm working on.

I haven't mentioned that part of the vacation plan at the office yet, but if I did I'm sure they'd look at me like I'm crazy. "You're taking a vacation from being a lawyer by doing a bunch of legal (or law-related) reading and writing?" This response makes superficial sense, but I honestly can't parse it. I understand why someone might not be interested in doing academic research and writing for fun, but they of all people should know that such work is a far cry from our day-to-day legal work. This is not a postman going for a walk on his day off.

I'm reminded of a story from when I was a summer associate at the firm. I was at some after-work event (I think it was basketball), and I had brought a book to read during the downtime -- a retrospective honoring the career of Iris Marion Young. A well-meaning associate saw me reading the book and said, concerned, "I hope you're not working tonight!" Now, of course, he was absolutely right that a summer associate should not have to be working through a Friday night after-work firm event -- that's the whole point of being a summer! And I told him no, this book was just for pleasure. But I wanted to say "buddy, if there's a practice group here where I might plausibly be reading books on contemporary feminist theory and democratic practice for work, by all means direct me to them right now because I need to get on that train."

In any event, writing is how I relax. Reading is how I relax. Firm life gives a lot of opportunities to read and write, of course, but not always in the forms and topics one might like. So for my vacation, I'm going to read what I want to read and write what I want to write, and I assure you I will enjoy the break thoroughly.

Nobody Calls Israel a Maoist State

At Tablet, Yair Rosenberg has an interesting retrospective on a 1961 debate between British historian Arnold Toynbee and Israeli diplomat Yaacov Herzog, regarding the legitimacy of the state of Israel. What is striking about the debate is how little the terms have shifted (particularly notable given that this was before Israel took over the West Bank and Gaza following the 1967 6-day war).

Toynbee was casually anti-Semitic (he considered Judaism to be a "fossil"), a sentiment that was hardly uncommon amongst elite Englishmen of the time period. And his main charge -- which prompted the debate challenge in the first place -- was his claim that Israel was morally equivalent to Nazis. Then, as now, this claim was trotted out without any sense of proportion: "Nazi" was little more than a stand-in for "person who did bad things"; because Israel had undoubtedly done bad things in the War of Independence, Israel was akin to a Nazi state. The problem, as Herzog observed, is two-fold.

First, "Nazi" is not in fact accurately used to describe an otherwise run-of-the-mill state that committed some wrongdoings. To diminish Nazism to such genericism is in effect a form of Holocaust denial -- it replaces the incredible magnitude and gravity of the Nazi Holocaust with a vague wave at condemnation. One sees this too with how some people treat racism -- stripping away the sheer sweep of centuries of ruthless murder, rape, terrorism, and enslavement; replacing it with some bromide about how for awhile we may not have quite lived up to our highest moral ideals. And if that's all racism ever was, then sure, every time President Obama suggests a policy proposal we find objectionable really is "just like slavery."

Second, if "Nazi" really does mean nothing more than "state which has committed a wrongdoing," then not just Israel is guilty. The UK is a Nazi state. America is a Nazi state. India is a Nazi state. Each of Israel's Arab adversaries is a Nazi state. Palestine will be a Nazi state. So why, then, should Israel be uniquely called out for being a Nazi state? If "Nazism" really is that mundane, it's almost not an observation worth making. But what's really happening is that Jews are being asked to meet an idealized standard of justice expected of nobody else, and when they inevitably fail to do so it is not seen as failing "normally", but rather as sharing space with the most monstrous of monsters.

But all of this, to me, raises another questions, which is "why Nazi?" If what we're really talking about is just a banal form of evil -- or hell, even if we're talking about much more serious, extreme evil -- Nazis are hardly the only choice we have. As offensive as the "apartheid" state analogy is, I will credit it as being less offensive than calling Israel and Jews Nazis. The reason people use Nazi this way -- divorced from the actual historical significance of the term, untethered from any proportionate sense of what the Nazis actually did -- is that it wounds Jews. That label appeals over all other ones because it has the unique capacity to hurt Jews on account of their Jewishness. It's akin to "criticizing" a Black person by calling him a plantation owner, or a lynch mob leader. It gains its power from a history of oppression, and when you are leverage historical oppression against the oppressed, that's prima facie evidence of racism or anti-Semitism no matter what your motives are.

Within all this, it is important to remember what the Holocaust actually "establishes" as relevant to contemporary discussions about Israel and Jews. Many people contend that Jews think the Holocaust has rendered them "perfect", unassailable, or immune from criticism. They seek to leverage the rhetoric of the Holocaust against Jews so as to remove this allegedly illicit gain, this wrongful bounty we illegitimately seized after being so lucky as to have been subjected to mass murder. But the Holocaust does not establish Jews are perfect -- it establishes that non-Jews aren't.

The fact of the Holocaust and other acts of anti-Semitism doesn't establish that Jews are unassailably virtuous. Why would it? There's nothing about oppression that purifies its victims -- imperfect people can be victims too. What it establishes is that non-Jews are not perfect; it destabilizes the hegemonic presence of non-Jewish voices and thus creates space for Jewish voices to be heard. To the casual observer that looks like a claim that Jews are "perfect", but that's only because Jews are claiming the right to speak on equal terms with a non-Jewish presence that had previously arrogated to itself a label of universal transcendence.

The frame that oppression makes the oppressed "perfect" is really more of a reactionary step. The framework sets up for Jews (and other minorities) a standard they can't possibly meet. And once they fail to meet it, it justifies stripping the label of "victim" and returning to the status quo where they can safely be ignored. It obviates the need to problematize the non-Jew in favor of providing a temporary elevation of the Jew to non-Jew status, contingent on the Jew maintaining a standard of conduct that nobody else can or is expected to meet.

(Original Tablet link via Daniel Goldberg)

Weekend Roundup: 1/31/14

Very busy at work right now. But I have a vacation coming up in a week. These two statements are not unrelated.

* * *

A fascinating peek at Utah's efforts to reform police raids.

The White House has announced it is looking to provide clemency to low-level drug offenders convicted in the days of overly-harsh mandatory minimums. Reason Magazine wonders if he's serious (both links via Radley Balko).

Maine Supreme Court rules that rules that banning a female transgender student from the girls' bathroom violates the state's anti-discrimination law.

Ken White at Popehat tackles people who compare critical speech to "lynch mobs", "the Holocaust", "witch hunts", and other like terms. Fair enough, but I again refer back to this post. "Bullying", for example, often includes physical intimidation, but just as regularly is "just" speech -- yet even Ken seems to recognize that this legitimately seriously harmful in a way that he dismisses in other contexts.

Meanwhile, Jon Chait tackles the ludicrous opinion of the Wall Street Journal that maybe rich people really are at risk of a Holocaust-style wave of terror. Kevin Drum takes a closer look at why -- against all evidence -- the rich "feel" besieged.

Breaking Madden

Who would have thought Madden 25 would have a kill screen?

Does that Star-Spangled Banner Yet Wave

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Friendly Rivalry

Without a doubt, the most important thing about this story is that JDate and Christian Mingle collaborate on an annual survey.

Also, Jews are less likely to cheat. So that's good.

David Hirsh's 101 Lesson on Opposing BDS

David Hirsh, in a masterful post gets all the key points of the anti-racist and counter-anti-Semitic movement against the BDS in one place. This is a necessary resource (Engage is already a necessary resource, but this post is an absolutely invaluable compilation).

The Wheel Never Stops Turning

Ta-Nehisi Coates writes:

From time to time, someone will ask why I write so much about racism. The underlying charge is that a writer should cease to follow his curiosities. I might well retort that Paul Krugman should stop writing about the economy, or Jeff Goldberg should stop writing about the Middle East. The difference is that the world which racism made is seen as a niche issue, with no real import. "Gender" and "women's issues" are often regarded in the same way.

And I thought that was strange, because of course plenty of people do say Jeff Goldberg should stop writing about the Middle East -- less because it is viewed as a "niche" issue and more because Goldberg is viewed as a niche person. Specifically, it is often argued that -- as a Jew with substantial ties to Israel -- Goldberg is biased, that he should leave the discussion to neutral, non-partisan gentile hands.

I'm reminded of the post I wrote about Judge A. Leon Higginbotham's opinion declining to recuse himself in an employment discrimination suit (Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (E.D. Pa. 1974)). Judge Higginbotham was black and a known civil rights advocate, and therefore, according to the defendants, biased. One of the examples Judge Higginbotham cited in declining to recuse himself was his Jewish colleagues:

I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. (180)

My post, of course, turned the full circle -- in response to people who do say that Jews should not speak or should not be in positions of authority on matters relating to Jewish interests -- I used Judge Higginbotham's powerful opinion as a counterpoint. Higginbotham uses the example of Jews to help Blacks, I use the example of Blacks to help Jews. There's no jealousy, only an example that can help check a common foe.

And on the flipside, why do we see the same rhetorical tropes used to silence Jews and Blacks alike, in seemingly such different contexts? Well why wouldn't we? If a given tactic for maintaining a particular hierarchy has worked for one group, why wouldn't it be adopted and utilized by others trying to preserve different hierarchies? The issue here isn't that all oppressions are fundamentally the same, or any such trite nonsense. But oppression is, after all, ultimately about results. Racists take their cues on what has worked for anti-Semites, and vice versa. The prevalence of rhetoric that asserts Jews shouldn't speak on Jewish issues, versus that Blacks shouldn't speak on Black issues, depends primarily on (a) the relative well-being of the groups in question and (b) what community of speakers you're dealing with.

UNESCO Cancels(?) Jews in Israel Exhibit

Repeat after me: The UN is a neutral organization which is not remotely hostile to Jews qua Jews:

The Obama administration is “deeply disappointed” with a decision by UNESCO, the United Nation’s cultural arm, to cancel the opening of an exhibition on the Jewish presence in the land of Israel and is seeking its placement “as soon as possible.”

Complaints by Arab states led UNESCO to cancel the exhibition, organized by the Simon Wiesenthal Center along with the governments of Canada and Montenegro. It was scheduled to open Jan. 20 at the Paris headquarters of the United Nations Educational, Scientific and Cultural Organization.

“The United States is deeply disappointed and has engaged with senior levels at UNESCO to confirm that the action to postpone does not represent a cancellation and to underscore our interest in seeing the exhibit proceed as soon as possible,” a State Department official said, speaking on customary anonymity. “We trust that UNESCO will approach this issue fairly and in a manner consistent with the organization’s guidelines and past precedent.”

UNESCO director-general Irina Bokova said Wednesday in a letter to the Simon Wiesenthal Center that the exhibit, titled “The People, the Book, the Land — 3,500 years of ties between the Jewish people and the Land of Israel,” would be postponed indefinitely. She said the decision arose out of UNESCO’s support for peace talks between Israel and the Palestinian Authority.

One can almost see the crocodile from which the Arab League's tears emerge:

The cancellation followed a letter sent to Bokova on Jan. 14 by the Arab group at UNESCO. “The Arab group is deeply disturbed by the exhibition, which it condemns,” said the letter from the group’s president, Abdullah Elmealmi.

“This cause is championed by those who oppose peace efforts,” Elmealmi said. “The media campaign accompanying the exhibition will inevitably damage the peace talks, the incessant efforts of U.S. Secretary of State John Kerry and UNESCO’s neutrality.”

If peace talks are so fragile such that acknowledging Jews have a connection to Israel will damage them, surely we are doomed. Though I suppose that all depends on what terms one expects "peace" to occur on.

UPDATE: UNESCO's statement is here.

UPDATE 2x: It now appears that the exhibit will open in June after a six month delay.

... That Magical Time of Year When a Worker's Thoughts Turn To Love

Various permutations of this essay by Miya Tokumitsu, which attacks the concept of "Doing What You Love" (DWYL), has been making the blogospheric rounds to much applause. Allow me to dissent. Tokumitsu does not do nearly enough to demonstrate a causal link between the DWYL mentality and erasure of the lives of working class. Indeed, if anything DWYL is a valuable contributor to our understanding of "work", including for the "non-creative" working class.

Summarizing and simplifying, Tokumitsu observes that there only certain classes of jobs, typically held by certain classes of people, which are even candidates to be a job one might "love". The vast majority of jobs, including jobs necessary for the maintenance of "loved" jobs, are not going to be particularly fun or intellectually stimulating no matter what we do. Therefore, DWYL is inherently classist: "labor that is done out of motives or needs other than love--which is, in fact, most labor--is erased." Meanwhile, DWYL encourages exploitation -- it is basically a way to make workers content with getting less in the way of tangible proceeds in favor of nebulous emotional satisfaction.

As someone who has in the past few years done both a job that I loved (in the classic DWYL form), and a job that, we shall say, does not fit into that category, I feel well-positioned to discuss this issue. And given that the latter job paid triple the former (loved) one, I can even speak to the trade-off between tangible and intangible job benefits.

But let's not start with me; let's start instead with the claim that DWYL is class-divisive and "erases" workers whose jobs are not candidates to be loved. Put bluntly, I'm skeptical that the wealthy need the aid of a mantra to forget about the life and working conditions of the lower classes. That's really more of the default setting. The alternative to caring about how workers feel about their jobs emotionally is not necessarily caring about what workers get out of their jobs tangibly -- it can very easily be (and historically has been) caring about neither. A similar critique can be leveled at her claim that if someone does not obtain profit from pursuing their passion, DWYL implies that the fault must be in their enthusiasm. While I've never actually heard that assertion made, I admit I'm never surprised at the capacity of some people to attribute any deficiency in the lives of the working class to their own deficiencies. Suffice to say, this tendency predates DWYL, it is not caused by it.

What DWYL recognizes is that the tangible products of a job are not sufficient to provide for fulfilling lives. One can be tangibly provided for at market rates and still not have "enough". In other words, DWYL is in many respects a (admittedly inchoate) statement about a substantive entitlements -- that we are not owed just whatever dollar amount our employer puts in our pocket, but some level of happiness, dignity, and respect out of our job. Those values should be included in our calculus of what workers are provided.

Indeed, some of her treatment of improved intangible working conditions strikes me as almost incomprehensible. She quotes Marc Bousquet as saying that the "loved" academic job environment actually presents a model for corporations:

How to emulate the academic workplace and get people to work at a high level of intellectual and emotional intensity for fifty or sixty hours a week for bartenders’ wages or less? Is there any way we can get our employees to swoon over their desks, murmuring “I love what I do” in response to greater workloads and smaller paychecks? How can we get our workers to be like faculty and deny that they work at all? How can we adjust our corporate culture to resemble campus culture, so that our workforce will fall in love with their work too?

From this analysis, she concludes "Nothing makes exploitation go down easier than convincing workers that they are doing what they love."

Reading the above, one would think that the way a corporation makes people love what they do is by casting an incantation or spiking the cafeteria with hallucinogenic drugs. In reality, to make workers happy by means other than a pay raise, one has to do things that make workers happier with their jobs. Those are real benefits, not chimeras -- I'd take my less-paying but more loved job over my less-loved, better paying counterpart in a heartbeat. The trade-off isn't infinite, of course, but all that demonstrates is that neither the tangible nor intangible proceeds of work are sufficient for self-fulfillment.

Which cycles us back to those workers whose jobs are not and cannot be made loveable. We should say here that almost any job can be made, if not loveable, than at least more likeable -- by being treated fairly and with respect, for instance, or by having some security such that one isn't not in constant dread of being tossed on the street. But even to the extent these jobs lie beyond true DWYL, the concept still matters because it provides a contrast to the prevailing counternarrative -- "the value of a honest day's work." That mantra, which by my lights is far more likely to represent the real competitor to DWYL (as compared to some sort of cross-class solidarity pressing for higher salaries for everyone), cares neither whether the worker is happy or whether they getting significant tangible returns -- value comes from working whatever job the market provides at whatever rate the market pays. I'm reminded of the archetypical 50s parent who, upon hearing that his son isn't happy at work, bellows that "You hate your job? I hated my job too! That's the point of a job!"



DWYL recognizes, at the very least, that the emotional side is important -- and anytime the American cultural zeitgeist recognizes any form of substantive entitlement as necessary for a fulfilled life, I'm inclined to jump on it. And to the extent we do view DWYL as a form of substantive entitlement and we simultaneously reckon with the fact that certain people are not (and likely cannot get it), that does provide a fulcrum from which those people can leverage a claim for greater tangible benefits as compensation. Of course, I'm not saying it's a guarantee that thinking about DWYL will cause wealthier Americans to recognize the deprivations faced by their working class peers -- as I said, wealthy Americans hardly need any excuse to ignore others outside their class. But attribute the lack of cross-class consciousness to DWYL is difficult to justify.

The bottom line is that the notion that we can view work solely through the lens of the monetary returns workers get doesn't cohere to how people of any class actually view their work. We don't just want "fulfillment" or "respect", but we don't just want a dollar figure either. It's obviously true that if one is being paid little, the marginal value of each additional dollar is going to be higher compared to additional "respect" or whatnot. But that doesn't change the fact that thinking about work in a way that's helpful to workers requires a holistic approach. DWYL matters because it is a recognition about what workers are owed, and any sort of public understanding of the proceeds of work that starts from what workers deserve, rather than what the market deigns to give them, is in my book a good thing

Lesbian Filipina Caregiver wins Israel's "X-Factor"

Pinkwashing! Brownwashing! Poorwashing! Songwashing! Every form of washing imaginable:

Rose Fostanes, a diminutive 47-year-old Filipina caregiver, has emerged as the newest star of Israeli reality television, winning the singing competition “X-Factor Israel” on Tuesday and establishing herself as something of a national phenomenon.
"
In an upset victory, Fostanes beat out three other finalists by performing crowd-pleasing renditions of Frank Sinatra’s "My Way," Alicia Keys' "If I Ain't Got You," and "Sweet Dreams" by the Eurythmics.

Fostanes arrived in Israel six years ago to work as a caregiver so, like millions of other Filipino workers around the world, she could send money back home to her family and her girlfriend.

Obviously, I support anyone who picks "Sweet Dreams" as part of their finals run.

To Take a Totally Random Example

Say what you will about the D.C. Circuit's net neutrality decision, but I can't get too upset at any decision that illustrates how the internet works by referencing the hypothetical journey of "a video of a cat" from YouTube to the discerning internet consuemr ("who then views and hopefully enjoys the cat.").

Also quotable: "After all, even a federal agency is entitled to a little pride."

"I Decide"

Ta-Nehisi Coates quotes Frederick Douglass' wife:

It is easy to say, as has been carelessly said by some in commenting upon Mr. Douglass' life and career, that the intellectual power, the ambition, the talent which he displayed, were inheritances from his white father; that the colored strain disappeared except as it gave the hue to his skin; and that to all intents and purposes Frederick Douglass was a white man.

In parallel, he notes the ideology of German anti-Semites when encountering a Jew whom, for whatever reason, they liked: "I decide who is a Jew." Marcus Garvey made a similar observation, stating that "whenever Blacks do anything useful, they are no longer Blacks."

At the end of it all, as Coates says, these "isms" are about power. Power is rarely so directionless as to necessitate the slaughter or enslavement of every member of the outgroup. It can maintain its "good Jews" or its "model minorities". After all, even the most bigoted can Have Black Friends. Depending on what one wants to do, one can either define the favored Jew (or whomever) as an exceptional falsehood, or as the only authentic Jew. Though seemingly opposite, the two moves have much the same effect -- to announce that the bulk of the Jewish community is lesser and subhuman, worthy of the scorn and prejudice heaped among them. Those few, special few who are allowed to escape (in part) its grasp are not taken to disprove the prejudice but to confirm it.

The Ashkenazi Jewish Name Tree

A list of origins for prominent Ashkenazi Jewish names -- an interesting article indeed! My name is not on there (presumably because it is too obscure), but I happen to know that "Schraub" means "screw" in German. As in the hardware sense, not in the prostitution sense. So presumably somebody was in that line of work.

Also interesting that there is a name associated with Jews who descended from Khazars -- Kagan. This, to me, is particularly noteworthy given that the article contends most Jews didn't adopt last names until the 17th century or later. The Khazar empire died out in the 11th century -- some 600 years earlier -- and I wouldn't have thought that any Jews who did trace their lineage to Khazar converts would have maintained that connection as part of their familial history or lineage (such that they'd adopt it as a last name). It's just a shame Justice Kagan has already been seated on the Supreme Court -- she could have been asked about it at her confirmation hearings.

Update: Looks like that Kagan/Khazar thing is likely bogus. Oh well.

New Year's Resolutions: 2014

I nearly forgot one of this blog's most venerated traditions: New Year's resolutions! Unforgivable (except that I did, in fact, remember). Previous installments here, and, like we do every year, we start with last year's resolutions:

Met: 1, 3, 4, 10, 11, 12, 13 (amazingly enough! I didn't find the books until I moved to DC), 14 (I honestly feel like this is true).

Missed: 2, 7, 8 (I think -- I don't actually remember), 9.

Pick 'em: 5, 6.

Not bad, all told. I think we can consider the resolution-side of last year a success, if nothing else. But time marches on, and so to we move to this year's resolutions!

1) Publish an article, or have one accepted for publication (other than Academic Freedom versus Academic Legitimacy). (Met)

2) Keep the frequency of anxiety attacks to "sporadic". (Pick 'em)

3) Feel decently competent in an additional area of law beyond my current speciality. (Pick 'em)

4) Attend a Devils game (cheating -- Jill already got me tickets for my birthday). (Met)

5) Spend money while still being financially responsible. (Met)

6) Get the blog's average hits back over 100/day. (Missed)

7) Stay in contact with my law advisers. (Met)

8) Finish a book. (Met -- pulp Star Wars fiction counts!)

9) Finish my secret project for Judge Murphy. (Missed)

10) Find a new computer and/or console game I like. (Met)

11) Attend the Carleton Reunion (again)! (Met)

12) Stay in contact with the academic community. (Met)

13) Work frequently with people whom I like working with frequently. (Met)

14) Be in a position where I am looking forward to next year. (Pick 'em -- looking forward to it right up until about August, where things get very hazy).

Weekend Roundup: 01/04/13

Busy times at work, but yet I've actually been more productive as a blogger than normal. Weird. Anyway, clearing the browser windows a bit:

An exceptionally entertaining story about ex-Rep. Roscoe Bartlett (R-MD), who used to represent western Maryland before being gerrymandered out, and his efforts to go off the grid. "The oddest Congressman" indeed.

Hussein Ibish to people who try to leverage the story of Jesus to favor Israeli Jews or Arab Palestinians: Stop it. You're being stupid and you don't understand how history works. Just stop it.

Omar Khadr, convicted of throwing a grenade at American soldiers during a battle in Afghanistan, now is trying to get a normal education.

A fascinating blog about a recent law grad who (after being no-offered by his sumemr firm) is now selling perfume at a department store. Sometimes, when I reflect on my job, I think "that could be me" (mostly with relief, but admittedly occasionally with wistfulness).

Torturing: The Data

This is a great chart:

The x-axis shows the five years before and after a country ratified the CAT. Year 0 is the year that the country ratified the CAT. For example, year 0 for the United States was 1994, while year 0 for Nicaragua was 2005. The line shows the average torture score for countries during the five years leading up to ratification and the five years following ratification (where 0 refers to frequent torture and 2 refers to no torture). If the average country had reduced torture during this period, then the line would have sloped up.

You'll notice the line does not really slope at all. Anyone can sign a piece of paper, people.

Crime Control

Eugene Volokh comments on assault weapons bans which reference "pistol grips". The rationale for targeting such grips is that they make it easier to spray-fire while shooting from the hip. Volokh observes that spray-firing from the hip is far less accurate than aiming down one's sights, and therefore a criminal who fires in such a manner is less dangerous than one who does not.

In terms of what Volokh is "missing", I think it is that he is envisioning a different type of criminal than the enactors of the bill are. Volokh imagines a criminal who is specifically aiming to kill a particular person, in which case it is better for said criminal to be less accurate. When I think of spray-firing, though, I think of a criminal whose primary goal is to instill terror (as in a drive-by shooting, though I don't know how one fires a gun from a moving car). The primary objective is not to hit a particular target, and moreover to the extent there might be a specific target the shooter also probably doesn't care too much about collateral damage. As far as I'm concerned, I'm less frightened of a criminal trying to assassinate me specifically than I am about being in the wrong place at the wrong time when some thug is trying to "send a message" or whatever. I think there are fewer criminals interested in shooting me particularly than there are criminals who don't care who gets shot at all. Or to borrow from an old war saying: "Don't worry about the bullet with your name on it. Worry about the piece of shrapnel marked 'occupant.'"

In short, we target this grip because it seems most appealing to a particular type of criminal who is particularly unconcerned with human life. As Volokh notes, this may mean we are proportionately less concerned about criminals who are quite concerned about human life and are making a deliberate and conscious choice to end it. And this may even mean that we're not optimizing the number of murders we could be deterring, though this is less certain.

This, to me, is illustrative of a broader phenomenon: we want to control our criminals. Not just in the sense that we don't want them to commit crime -- though that too, of course -- but in that we want our crimes to occur in controlled, predictable, non-random manners. Far scarier than the aggregate statistics of being a crime victim is the prospect that being a crime victim might be entirely a manner of a caprice. Consider this interview with longtime defense attorney Sam Dalton:

Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened.

In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life.

Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded.

So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous.

This, I think, is a major motivator here. With the second mugger, or the "aim down the sights" criminal, we know the script. We know what we have to do to walk away (physically) unharmed. The first mugger, or the spray-from-the-hip gangbanger, doesn't allow us that luxury. It is scarier precisely because it is completely out of our control.

Does Dalton raise a good point that we should care more about harm than about what is scary? Sure. But it is not entirely unreasonable to target certain types of criminal activity -- and the devices that enable them -- because they make us feel more unsafe. After all, a large part of crime control isn't about actually playing the efficiency game and figuring out when the costs of crime control are justified based on tangible losses. A large part of it is based on creating the feeling of security and safety; so that stepping onto the street isn't itself a source of anxiety and panic. That's worthwhile in of itself. And where we can help create that feeling of safety at the minor cost of prohibiting a grip which, as Volokh's post observes, is apparently not particularly useful for legitimate social purposes -- that trade doesn't seem unwarranted.

This is Black Privilege

A list of all the privileges of being Black. Don't forget flying first class on Southwest!

Silent Night

War on Christmas? Somalia, show us how it's done!

A directive released on Tuesday by the Ministry of Justice and Religious Affairs stated that no Christian festivities could be held in Somalia….

“We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week,” said [the Director of the Religious Matters] during [a] press conference [to announce the ban], adding: “It is prohibited to celebrate those days in this country.”

[The Director General of the Ministry of Justice and Religious Affairs], on his part, stated that all security and law enforcement agencies had been instructed to counter any such celebrations….

The officials did not say anything on whether non-Muslim foreign workers or residents could celebrate or not.

It is the first time that a Somali government bans the celebrations since the last central government collapsed in 1991.

All I Want for Christmas

What I want for Christmas is better "best of Buffy [character]" videos on YouTube. Important note: If it's set to any sort of music -- any sort of music -- it doesn't count.

Have a happy holiday, everyone!

Free Speech and the Private Sphere

I've been thinking about the concept of "free speech" as applied to private criticism. This has come up most recently in the flap over Duck Dynasty star Phil Robertson's statements regarding gays and Blacks, and the resulting calls to boycott the show. Some people have responded by saying the critics are violating Robertson's free speech rights. Others have replied that no such thing is occurring, since we are not talking about government censorship but rather private counter-criticism -- free speech in its own right. Take Popehat, for example:

The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.

These are good points, particularly the idea of the Preferred First Speaker. So the following isn't meant to be critical.

But what does it mean that so many people really seem to believe that private retaliation -- whether in tangible forms such as economic boycotts or firing someone from a job, or even intangible form such as overly vitriolic responses -- poses a threat to free speech on par with government censorship? Does that mean we have to maybe reevaluate the concept a bit?

After all, if the issue really is just a problem of "chilling", private actors can do that nearly as well as the government. Maybe not quite as efficiently -- the government's power to imprison you is difficult to top -- but most people would view the loss of their job or even the loss of fraternity as a sufficiently grave deterrent to avoid voicing certain opinions. And as everything from the continued worries over "cyberbullying" to my own "Criticism as Punishment" post indicate, people seem to perceive these sorts of private sanctions as punitive in nature.

Again, none of this is to say that we should actually treat hostile private reactions to speech as on par with government censorship of speech. A functioning public sphere requires that we be able to criticize, sometimes harshly, and requires that we be able to react negatively towards the speech of others, even stridently. But again, the fact that there is such a large popular consensus that is a real and genuine problem does counsel that this is a problem that requires deeper thoughts than just drawing a line between public and private and leaving it at that.

Off My Game

Sen. Rand Paul (R-KY) and Rep. Peter King (R-NY) square off over surveillance programs. That's no surprise.

Paul, a Kentucky Republican with strong tea party-backing, and King are both considered likely GOP presidential candidates in 2016.

Paul I knew about. But King? I hadn't heard anything suggesting King was a presidential candidate. Now, I'm not as plugged into this world as I used to be, but I would have thought I'd hear some rumblings. But no, it turns out I just missed the memo.

In any event, I think King is too "iconoclastic" (if you will) to be a likely 2016 standard-bearer. But I have to think that the 2016 GOP primary will be one of the more bizarre in recent memory anyway, so who knows?

"Publish It Already" Roundup

I have an article coming out very soon in the Florida International University Law Review that is, I think, quite pertinent to some ... high-profile issues ... that have recently come up. But "very soon" isn't soon enough. Argh.

Some things taking up browser space:

* * *

A white former(?) prosecutor gets himself arrested, both to see what the criminal justice system is like from the other side and, inadvertently, to discover just how hard it is to get arrested if you're a white guy in a suit.

David Hirsh writes an open letter to Claire Potter, who famously opposed-then-supported the ASA BDS resolution. Potter responds here. I'd greatly appreciate if Hirsh continued this conversation; his energy to do such things vastly exceeds my own, and Potter's response was not just unconvincing, but worrisome in how seemingly little thought she's given to the application of her radical politics to the Jewish context. Anti-Semitism, for her, seems to be a slur that impedes open discussion, rather than a central point of analysis anytime largely non-Jewish institutions act upon their Jewish counterparts.

Walter Russell Mead has a stellar essay on the ASA boycott. I would quibble slightly at where he draws the line regarding anti-Semitism, but it's mostly semantic -- I don't think anti-Semitism necessarily requires conscious or even unconscious malign intent. Though I might set that threshold for saying a person is anti-Semitic, it is not a necessary condition for an action to be. If an action is taken without due regard and consideration for Jewish rights and equality, that's anti-Semitic regardless of the intention of the actor (the corollary being, one can say or do something anti-Semitic without being anti-Semitic). There is no right to opine on marginalized minorities without knowing about them.

In just a few days, two universities (Brandeis and Penn State - Harrisburg) have pulled out of the ASA.

Finally, on a happier note, my congratulatiosn to Mais Ali-Saleh, valedictorian at Israel's Technion University (Israel's premier tech university). Ali-Saleh is a Muslim Arab woman, and I have no doubt that she's faced considerable discrimination. But that makes her perseverance and accomplishments more laudable. Incidentally, if Ms. Ali-Saleh did ask to speak at an ASA invent (and, we'll say, in her "official capacity" as Technion's valedictorian), would she be boycotted? If the answer is yes, it seems to run counter to the movement's supposed goals of solidarity. If it is no, then the boycott is overtly discriminating against Jews. A tough call, and a question I've long wondered how BDSers would answer.