January 30, 2008

Strange Timing by the Columbia Spectator

I'm trying to think of a more inopportune time since the Gujarat riots to publish an opinion piece about how meek and mild Hindus are. I cannot think of a more bizarre moment to make this statement: "Keeping a low profile is a manifestation of the non-interventionist mindset that has enabled Hinduism to survive some 8,000 years in spite of assaults like the Muslim invasions, the Goa inquisition, and more recent encroachments like the Gospel Fellowship Trust India�s campaign to aggressively convert Dalits and impoverished tribesmen to Christianity."

I guess that either the Columbia Spectator's opinion editors don't keep up with South Asian news, or they're deliberately trying to stir up controversy. An op-ed that makes nasty remarks about converting Dalits (better known in the West as "untouchables") and tribals to Christianity, and implicitly comparing it to invasions and inquisitions, is one way to do it.

Posted by PG at 8:16 PM | Comments (0) | TrackBack

January 28, 2008

NYC Government: Persian Gulf War Never Ended

In a list of periods of conflict for determining whether one receives a property tax exemption reserved for veterans, the City of New York gives the following:

- World War I: April 6, 1917 - November 11, 1918
- World War II: December 7, 1941 - December 31,1946
- Korean Conflict: June 27, 1950 - January 31,1955
- Vietnam War: February 28,1961 - May 7, 1975
- Persian Gulf War: August 2, 1990 - Present

Does anyone know if this is a standard list from the federal government about the dates for active duty?

Posted by PG at 10:33 PM | Comments (3) | TrackBack

Paulsen Will Never Prevent an Abortion

Although I am sure Michael Stokes Paulsen is quite able in arguing the case for abortion prohibition in a more academic format, his Balkinization post about the Roe Holocaust* was disappointingly tiresome. Legal scholars who make such arguments seem to be either ignorant of or indifferent to the fact that Anglo-American law never treated abortion as a species of killing. Before Roe, as I have noted, abortion was classed in state statutes as a crime against morals and decency, along with fornication, adultery, prostitution, sodomy and bestiality. It was not put among the homicide crimes, and always was prosecuted and penalized differently than murder. This indicates a historic framing of abortion as a morally impermissible misuse of one's own body, rather than as a crime against the person of another.

Because contraception also was once among those morals crimes, I can see why the privacy reasoning of Griswold (contraception) seemed logical to extend to Roe (abortion), and has been extended to Lawrence (sodomy) as well. And this reasoning emphasizes a point that Paulsen and other abortion prohibitionists' rhetoric ignores: that abortion takes place in a woman's body. Instead, Paulsen says,

There is no denying that the human fetus is alive or that it is an independent life, having a separate biological existence and identity from the woman in whose womb the human fetus is developing. ... In addition, the human fetus often could not live on his or her own without the support of the mother's womb... Rather, most defenders of abortion ultimately rest their position on the moral judgment that unborn human life is, at some or all stages of gestation, simply not morally worthy of protection against private violence at the hands of someone inconvenienced to a greater or lesser degree by that human life. ... what the majority [in Roe did was] create out of whole cloth a super-protected constitutional right of some human beings to kill other human beings, for essentially whatever reasons they may have for doing so, including caprice, spite, convenience, or the child's gender, race, or other physical characteristic.
Yet if the fetus has such a wholly separate biological existence, why not just remove it and put it in the uterus of a woman who feels more hospitable to it? If it's merely "often" that a fetus can't live on its own, why aren't there hospital nurseries full of fetuses that are capable of living on their own? In actuality, of course, no fetus can live without an umbilical cord until its respiratory system has developed enough for it to breathe, and this doesn't occur even in the fastest developing fetus until the 21st week, which is halfway through the pregnancy, and well after 98% of abortions would have occurred (88.2% of abortions were conducted at or prior to 12 weeks, 10.4% from 13 to 20 weeks).

I am puzzled as to why some abortion prohibitionists reject accurate descriptions of fetal life, when such descriptions often are their best allies in reaching people's emotions. For a woman who is wavering on whether to have an abortion, an ultrasound that shows the fetus may cement her emotional attachment and cause her to decide to complete the pregnancy.**

This is portrayed well in the movie Juno, where a decidedly irreverent, irreligious, and seemingly insensitive teenager decides against abortion after getting to the clinic. The combination of information she receives from a classmate that the fetus already has fingernails, and the negative environment in the clinic (the simultaneously callous and over-informative receptionist, the drumming nails of the other people waiting) drive her to seek an adoption instead. I doubt a person like that would have her mind changed by obvious exaggerations regarding a fetus's ability to survive outside the womb. And if she believed them, she probably would have tried to have the baby extracted at her meeting with the adoptive parents, where she declares, "If I could just have the thing and give it to you now, I totally would, but I'm guessing it looks probably like a sea-monkey right now and we should let it get a little cuter."

The tactics that are actually useful for reducing the number of abortions, however, are inaccessible to Paulsen because he is so set on equating every woman considering an abortion with Hitler. As the conversion of Norma McCorvey -- the Roe of Rove v. Wade -- into an abortion prohibitionist (and Ron Paul supporter) demonstrates, an attitude of welcome is much more persuasive than condemnation. The title of the book announcing McCorvey's switch, Won by Love, essentially summarizes the story therein: she eventually felt exploited by the pro-choice movement, whereas the folks at Operation Rescue -- who moved their national headquarters next door to the clinic where she worked -- were friendly to her. If she has financial trouble, pro-life groups will call for donations.

In his post, Paulsen therefore fails both as a law professor and as an abortion-preventer. Perhaps these two aspects are incompatible: the legal argument must be in absolute terms for the heinous guilt of an aborting woman, while the social argument would have to recognize her humanity and claims to our sympathy even as it guides her to an alternative. In any case, I would recommend the post neither to convince a lawyer that abortion should be prohibited, nor to convince a woman not to have an abortion.

* Holocaust and genocide are weirdly inapt terms to use for the millions of fetuses killed through abortion, with their connotations of the killers' attempt to extinguish the existence of some group of Others. A women who kills the fetus she carries is almost by definition killing a fetus that if it were born, would be part of not only her general groups (race, nationality, etc.) but of her most intimate group, her family. If Paulsen is convinced that fetuses are people, the more appropriate analogy would be to the deaths that occurred in Communist China. This kind of genocide was motivated not by racial hatred, but more approximately by what those who do not conceive of pregnancy as significantly burdensome would call "convenience." It was inconvenient for Mao to feed all these people or to allow potential dissidents to live, so they died.

** I am very much in favor of ultrasounds being used for the purpose of fully informing pregnant women who are considering abortion. Someone who couldn't cope with the idea that she will be killing the blob on a screen has no business having an abortion. She'll probably repent of it once she finds out what a fetus looks like and join the abortion prohibition movement, on the belief that because she regrets her abortion, everyone must, and therefore she must save them from themselves. See Kennedy's majority opinion in Gonzales v. Carhart: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05�380, pp. 22�24. Severe depression and loss of esteem can follow."

Posted by PG at 7:44 PM | Comments (0) | TrackBack

January 27, 2008

Crimes of What?

Toward the end of her Ms. review of Susan K. Cahn's Sexual Reckonings: Southern Girls in a Troubling Age, France Winddance Twine, a professor of sociology and women's studies at the University of California, Santa Barbara, says, "Meanwhile, scholars estimate that the number of girls in juvenile detention for crimes of poverty and sex nearly doubled in the 1990s."

What exactly are "crimes of poverty and sex"? I can guess that a crime of poverty might be one like panhandling, public indecency for urinating in public in the absence of a home in which to do same, perhaps even shoplifting food and basic clothing or items to resell -- crimes that may seem necessary for someone who is very poor.* But what is a "crime of sex"? Are prosecutors actually resurrecting fornication or adultery statutes (they can't use the sodomy ones) in order to put sexually active teenage girls in juvenile detention? Prof. Twine uses the phrase so casually that I thought perhaps it was in common parlance, so I tried googling it.

"Crimes of poverty" is a frequently-used idea, and generally encapsulates what I expected: "arrests and citations for the act of being homeless or very low-income in America, i.e., 'camping on public property,' blocking the sidewalk, recycling, loitering (which can include sitting while homeless), and in my family's case, sleeping in a vehicle or driving with expired plates (Driving While Poor)." Also, neglect of children for going to work while being unable to afford childcare for them, and the merged crime of sex and poverty: prostitution.

But why are juveniles being arrested for these crimes of poverty and sex? At least under the age of 16 in many states, a minor's prostitution should entail no guilt on the part of the child, only a statutory rape charge against her clients. A homeless juvenile should be going into the foster care system, not juvenile detention. I can understand that due to shortages of foster homes, some minors end up being held in juvenile detention just to ensure they have food and shelter, but those should be distinguished from the kids in juvie who if they were older would be in jail.

* "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread." -- Anatole France

Posted by PG at 12:46 PM | Comments (0) | TrackBack

January 26, 2008

I Do Declare, That's Not What It Means to Be American

I am trying to figure out what Sarah Lyall meant in the first sentence of a Times article, which says, "It was a lofty idea: formulate a British 'statement of values' defining what it means to be British, much the way a document like the Declaration of Independence sets out the ideals that help explain what it means to be American." The Declaration of Independence does not "set out ideals," but rather sets out a list of grievances against the British king.

It is, as one might expect from the name, a declaration of independence from Britain. It famously states, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," only as the first step of an argument that because the British government has become destructive of these Rights, the colonists are justified in throwing off such government. Further contrasting with Lyall's notion that the Declaration explains American-ness are Jefferson's repeated concluding references to "Free and Independent States."

One might take the list of grievances as a kind of Don'ts For Government, and King George's tyrannies appear as a reverse blueprint for the Constitution and Bill of Rights:
Where he refused his Assent to Laws, the president's veto can be overruled by a two-thirds legislative majority.
Where he made Judges dependent on his Will alone for the tenure of their offices, and the amount and enjoyment of their salaries, Article III judges have lifetime tenure, holding "their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."
Where he quartered large bodies of armed troops among the colonists in peacetime, the Third Amendment prohibits same.
Where he deprived the colonists in many cases of the benefit of Trial by Jury, the Sixth Amendment guarantees same.
Etc., etc. Only in the negative can much of the Declaration be taken as ideal; that is, where the king's behavior was bad, the colonists implicitly promised to do better. The act of declaring independence, the lawyerly mindset that laid out charges against the king -- these are part of what it means to be American. As Edmund Burke remarked on the character of Americans, a year before before any Declaration,

Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone's Commentaries in America as in England. General Gage marks out this disposition very particularly in a letter on your table. He states, that all the people in his government are lawyers, or smatterers in law; and that in Boston they have been enabled, by successful chicane, wholly to evade many parts of one of your capital penal constitutions. The smartness of debate will say, that this knowledge ought to teach them more clearly the rights of legislature, their obligations to obedience, and the penalties of rebellion. All this is mighty well. But my honourable and learned friend on the floor, who condescends to mark what I say for animadversion, will disdain that ground. He has heard, as well as I, that when great honours and great emoluments do not win over this knowledge to the service of the state, it is a formidable adversary to government. If the spirit be not tamed and broken by these happy methods, it is stubborn and litigious. Abeunt studia in mores. This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.
Stubborn and litigious -- that has been the American character for over 200 years.

If I were to try to sum up what the British character is, it would be: decent. Britons feel guilty about being really mean to people (a feeling that got them out of India without need for armed revolution); they think you pretty much should do what you like as long as it doesn't scare the horses; and the quintessentially Ango common-law system, particularly with regard to equity, is founded in the idea that rather than having many hard rules, we just ought to be fair. The Church of England is decent, the National Health Service is decent, the Queen was objected to only when people felt she was being not quite decent to Princess Diana. Some may not see this as an inspiring quality, but I think it has much to recommend it.

Posted by PG at 4:04 PM | Comments (0) | TrackBack

January 25, 2008

Refiguring on the Slate

In Phil Carter's and Brad Flora's "complete guide to the Army's recruiting incentives," published in Slate last November, they state, "Among 2004 recruits, 92.5 percent had a high-school diploma, while the same could be said for 87 percent in 2005, 81.2 percent in 2006, and 79.1 percent in 2007."

However, Fred Kaplan yesterday said, "The latest statistics�compiled by the Defense Department. and obtained through the Freedom of Information Act by the Boston-based National Priorities Project�are grim. They show that the percentage of new Army recruits with high-school diplomas has plunged from 94 percent in 2003 to 83.5 percent in 2005 to 70.7 percent in 2007. (The Pentagon's longstanding goal is 90 percent.)"

Why the inconsistency for the 2005 figures? The discrepancy for 2007 might be explained by really heavy recruitment of dropouts during November and December 2007, but there's no obvious reason why two Slate articles -- the second even linking the first -- should have different statistics for 2005.

What actually would interest me, though, is how many high school dropouts do well on the military's aptitude test. I remember taking that in high school, and although I don't remember my score and I still got recruitment calls and mail from the Navy, I'm pretty sure I did poorly on the practical, non-academic aspects: Electronics Information, Auto Information, Shop Information, Mechanical Comprehension and Assembling Objects. I'm all for having people in the military who can read, write, do math and know that the earth is round, but for many crucial tasks, the half of the test that I probably flunked is a better predictor of ability. Some people are lousy in the classroom and end up dropping out of high school because they find it boring and frustrating to sit through mediocre lectures on The Taming of the Shrew. That doesn't mean they're "dumb," at least not in the way that counts for getting certain jobs done.

But if the military is recruiting people with neither academic nor practical abilities -- people who score poorly on both parts of the ASVAB -- then we really are in trouble.

Posted by PG at 1:27 PM | Comments (0) | TrackBack

January 23, 2008

In Which PG Tries to Explain Many Things

This is an overgrown response to commenter Bob, one of several people defending the Japanese internment in the comments to this post. In the following, I will endeavor to explain

- the difference between a "military area" and a "combat zone";
- the seemingly mysterious ability of Japanese people to evade prosecution for spying even while whites are being convicted;
- why putting adults in an area that they are shot for leaving without permission is usually deemed a loss of liberty and not a mere "relocation";
- U.S. immigration and naturalization law;
- racism against Asians as shown in other laws;
- and why someone who immigrated to the U.S. after 1954 couldn't have become a naturalized citizen by 1960 no matter how much he wanted to be.


The west cost was a military combat zone at the time. Due process is irrelevent in a military combat zone so that point is moot.

I'd be interested to see whether the West Coast was "a military combat zone" beyond the single aspect of making due process "irrelevant" for the Japanese. For example, were soldiers posted to the West Coast paid combat pay?

FDR's Executive Order 9066 authorized the Secretary of War and other military commanders "to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion."

Nothing in this order stated that due process was "irrelevant" for such military areas; the civilian courts remained open on the West Coast. This distinguishes the Coast from Hawaii, where habeas was suspended for all -- not just the Japanese -- and civilian courts were replaced with military ones. A "military area" is not a "combat zone."

After the Pearl Harbor attack, the governor of Hawaii declared martial law, suspending habeas corpus and arresting specific Japanese suspected of subversion. The Japanese consul's employees, priests who preached obedience to the Emperor, former members of the Japanese military and certain others were legitimately suspicious persons. Yet in Hawaii, the Japanese were not relocated or interned wholesale, despite this being the one area that actually was attacked by Japan and that was a non-civilian, military-run zone.

If there was no question that Tachibana headed an espionage ring on the West Coast that enlisted a number of Japanese Americans, both aliens and citizens (sic), nor that the government knew the identities of its members, then why didn't the government arrest these members whose identities they knew? The Espionage Act is quite far reaching: it is illegal to supply any defense-related information, classified or unclassified, to a foreign nation so long as the person has the intent or reason to believe that the information is to be used to the detriment of the United States. Why not arrest and try for treason members of the Japanese Ex-Service Men's Organization that pledged to do sabotage? If the military had evidence that the organization as a whole was disloyal, it could get a warrant for the membership lists and then charge them with conspiracy against the U.S. based on that membership (as is done today for members of Al Qaeda and other organizations deemed adverse to U.S. interests).

I understand that the U.S. couldn't take action based on the MAGIC cables during the war because then Japan would realize that the U.S. had decoded its system, but no commenter on this post has explained why the U.S. didn't prosecute at the end of the war. It's not as though wartime or postwar juries were reluctant to convict persons accused of espionage. Moreover, Americans who were willing to commit sabotage against the U.S. could hardly be deemed harmless just because the war was over, and should have been punished.

I'm not sure how I can make this point any clearer: I have no problem arresting persons whom the government has reason to think are threats to national security based on those persons' behavior. I have a very big problem with detaining people because their race has made them suspect persons. Indeed, part of the problem with racial profiling is that it often blinds law enforcement to people who don't fit their profile. Of the 19 people charged with spying for Japan, 18 were Caucasians. Moreover, many were Caucasians acting outside the designated military areas (e.g. Kuehn family in Hawaii, Dickinson in NYC), so if Japanese were freely roaming the U.S. outside the West Coast, they should have been equally able as the Caucasians to engage in spying -- if they wanted to do so. So they had the ability to commit the crime, and you�re claiming they had the intent to commit the crime, which gets us halfway through this Law & Order episode. Is there just something about being Japanese that makes it so difficult to find evidence against them and use it for a prosecution?

Ethnic Japanese were not forced into camps, they were forced out of the military combat zone. At no point was the government interested in "locking up" the evacuated Japanese.

Again, it was not a "combat zone." If it was a real combat zone, why weren't all non-military persons evacuated from it? When the British identified areas particularly subject to attack such as London, they did their best to move children out of them. Did the U.S. government actually care more about the Japanese than non-Japanese, to be so considerate in evacuating only them from a "combat zone"?

Moreover, Executive Order 9095 created the Office of the Alien Property Custodian with authority over all alien property interests. With Japanese assets frozen, it was rather difficult for their owners to relocate on their own out of the exclusion zones. And if the Japanese were always free to leave the relocation camps whenever they wanted so long as they stayed away from the exclusion zones, why were multiple Japanese (Ichiro Shimoda, Hikoji Takeuchi, Toshiro Kobata, Hirota Isomura, James Hatsuki Wakasa) shot and sometimes killed if guards thought they were trying to escape the camps? How can one be trying to escape a place that one has freedom to leave?

The issei were illegal aliens.

First, your claim that the Gentlemen's Agreements were treaties is wrong; they were informal agreements between executive branches (hence the name Gentlemen's Agreements). Second, many Issei immigrated before there was any government policy opposed to their admission to the U.S. After the Chinese Exclusion Act of 1882, Japanese were actively recruited to fill the place of the Chinese as unskilled laborers on the West Coast. The Treaty of 1894 -- the real treaty between Japan and the U.S., the one that went through all those crazy Constitutional formalities like getting approved by the Senate -- was supposed to guarantee equal rights for Japanese persons and was a basis for protesting Japanese segregation from white schools, which began in San Francisco in 1906.

I don't mean to be rude, but do you know any of the history of U.S. immigration and naturalization law? The Constitution federalized such matters and put them under Congressional authority. The first naturalization law (of 1790) limited naturalization to white people. At that time, there was no treaty nor law prohibiting non-whites from immigrating to the U.S., and of course the slave trade was still active at that point, so plenty of non-whites were being involuntarily immigrated to the U.S. The naturalization law of 1870 then expanded who could be naturalized, allowing persons of African descent as well as whites to be naturalized. At that time, persons we now consider Latino were categorized as white, as were in some cases Middle Easterners. Thus the main racial group that could not be naturalized was Asian.

There still was nothing to prohibit, for example, Indians (then living in a British colony) from immigrating to the U.S., but they were unable to become naturalized citizens if they were deemed non-white. One Indian immigrant even tried to establish himself as white so he could become a citizen, and the Supreme Court came to the peculiar conclusion that Indians -- or at least the high caste ones -- are "Caucasian" but not "white." To claim that only illegal aliens were prohibited from naturalization shows ignorance of the applicable law. One could immigrate without violation of any law or treaty, join the U.S. military in WWI, and still be denied naturalization because of one's race.

Until 1924, it was not even possible for Germans, Italians, Hungarians and Romanians to come to the U.S. "illegally," because there were no quotas or other limits on their immigration. Europeans could get on a boat, arrive at Ellis Island, and if they were disease-free, were sent on their way into America. The U.S. government sought to limit Asian immigration only -- not that of other groups. These "droves" of Japanese were a fraction of the "droves" of Italians. Kindly explain the non-racial reason the U.S. government somehow was staggering under the weight of Asian immigrants but had plenty of room for European ones. You can hardly make the same "oh, they just come for the welfare!" arguments that anti-Latino forces do now, considering that the welfare state didn't exist before the Great Depression. The racism toward Asians largely was driven by their economic success, a feeling that white farmers on the West Coast frankly admitted and could indulge by buying up the Japanese internees' property at rock bottom prices.

A friend who has been reading this blog discussion made the argument that the Japanese, unlike Germans and Italians, were less assimilated, and he used as an example the fact that Germans and Italians were much more intermarried with other ethnic groups than were the Japanese. What this leaves out, of course, is that Asians in many states were prohibited from marrying whites, under the miscegenation laws that also prohibited interracial marriage between whites and blacks. It�s rather difficult for Japanese to have become assimilated through intermarriage when such marriage was impossible in states like California.

The idea that U.S. law at both the federal and state levels from roughly the mid-1800s to the mid-1900s was not racist toward Asians is ludicrous. Chinese were not allowed to attend white schools in Mississippi; the 1913 Alien Land Law prohibited "aliens ineligible to citizenship" -- which is to say, Asians -- from owning land in California; legally immigrated Indians could not be naturalized. If you do not see these as examples of racism, then we clearly don't speak the same language.

According to the U.S.Census, in 1940 there were approx 84,000 Issei in the U.S. and Hawaii, the bulk of them were under 50 years of age. By 1960 there were approx 101,000, no doubt including some war brides. According to INS publication "Persons Naturalized by Former Allegiance" only 32,168 Japanese-born became naturalized U.S.citizens between 1952-1960. That's only 32%.

Very nice playing with the numbers there. If 101,000 Issei were present in 1960, how is it logical to use that as your numerator in determining the percentage who would eventually become naturalized, when your denominator comes from the 1952-1960 era? As you might discover upon investigating naturalization law, in 1952 one had to be a legal U.S. resident for five years in order to become naturalized. Someone who immigrated to the U.S. in 1955 and immediately declared an intention to become a citizen (which would be unusual, as many immigrants can�t know right away whether they will be able to succeed in the U.S.) still couldn�t have become naturalized by 1960, but you include such a person in your 1960 total of 101,000 Issei in order to declare that �only 32%� had wanted to become citizens.

As for the Issei's slowness to take advantage of naturalization once the U.S. government was kind enough to offer it to Asians, it strikes me as psychologically sound: they had seen that even citizenship status was not enough to protect them from legalized racism, so for many it probably didn�t seem to be worth the effort. I completely understand why people dispossessed of everything they had worked to gain in a country would be mistrustful of that nation and not feel a great inclination to swear allegiance to it.

My parents are naturalized citizens, and if the government forced my father to sell off his medical practice of 25 years to the first taker, as well as all their other hard-gained assets, then relocated him to be a farmer or whatever use the government had for him, he might be just a little bitter. Yet right now he is as patriotic an American as you will find, probably even more so than his U.S. born children, because of his gratitude for the opportunities America has given him, which many U.S. natives take for granted.

In the internment and relocation of the Japanese, the U.S. threw away these people�s accumulated goodwill for what America had made possible for them. This makes the internment not only morally wrong; it shows its practical stupidity. Instead of saying that loyal Japanese were with the U.S. in opposing the disloyal Japanese and the warmongering Japanese government, the U.S. pushed the Japanese to the other side of the line, effectively declaring that there could not be such a thing as a U.S-loyal Japanese person. Thankfully many Japanese-Americans were stubborn in their loyalty and determined to prove it, and we benefited from that. But how much more help might we have gotten from Japanese people had the government not treated them as traitors by their race?

Posted by PG at 10:15 PM | Comments (6) | TrackBack

January 21, 2008

What It Means to Vote Pro-Choice

Blog for Choice Day I received an email from Molly Jackson at Pro Choice America, asking bloggers to participate again in Blog for Choice Day (Roe's anniversary). She said, "This year, we're asking people to blog about why they vote pro-choice."

I consider myself a pro-choice voter, but some people probably wouldn't. For example, I don't consider Roe v. Wade to be a gold standard of constitutional reasoning, and therefore have no problem with a presidential or Senate candidate who says he would support a judicial nominee who disagrees with Roe. On the other hand, I consider Congress's "partial birth" abortion ban to be an appalling instance of hypocrisy among the supposed defenders of federalism (Ron Paul and Fred Thompson both go down on this count) and of medical ignorance by politicians, even those who ought to know better (Bill Frist, Tom Coburn). The Supreme Court decision upholding it was a display of revolting paternalism by Justice Kennedy. A judicial nominee who agrees with Gonzales v. Carhart is far more dangerous than one who disagrees with Roe. The latter may think fetuses should be protected from others' decisions by the government, which is a position I oppose but can respect; the former thinks women should be protected from their own decisions, a position that I find reprehensible.

As the above might indicate, I incline to Justice Ginsburg's view that the right to abortion is more properly founded in equality of the sexes than in privacy. I feel this way about Lawrence v. Texas as well; inasmuch as anal sex anatomically is more dangerous to sexual health than are other practices, it could be prohibited by the state, but there's nothing about anatomy that makes anal sex more dangerous for homosexuals than for heterosexuals. Thus the decision invalidating the statute should have rested on Texas's prohibiting sodomizing a man but not a woman, thus engaging in unconstitutional sex discrimination.

On the legislative side, I wish that Senator Clinton had put some substance behind past speeches about how abortion is a tragic choice for many women, and that we need to reduce the number of unwanted pregnancies in the first place, by supporting either pro-choice legislation for pregnancy prevention or pro-life legislation for making adoption and childrearing easier. There seems to be a fear among pro-choice politicians that any alliance with those who are not pro-choice with regard to abortion is necessarily going to be to women's detriment. Yet being truly pro-choice means supporting women's access to as many choices as possible, whether it is to be sexually abstinent, to use one of a variety of contraceptive measures, to have an abortion, to have an open or closed adoption, or to raise a baby. If a woman wishes that her situation -- particularly a situation of lacking resources -- didn't seem to compel her to have an abortion, then part of being pro-choice is helping her change that situation.

Posted by PG at 8:33 PM | Comments (0) | TrackBack

Today / 01.22.08

Today is the 35th anniversary of the Supreme Court's decision in Roe v. Wade.

Posted by PG at 8:22 PM | Comments (0) | TrackBack

January 20, 2008

God's Already Been Discovered

The latest emails from the American Family Association are hyping the "Rediscovering God in America Conference," which will take place in Orlando, Florida this week with hundreds of Florida pastors and special guests Newt Gingrich and Mike Huckabee. Phrases like "Rediscovering God in America" or "putting religion back in the public square" always puzzle me because I feel like God is very much present in Americans' lives and that lived faith is very much present in the public square. Take for example this lengthy article from the Associated Press, focusing on a congregation's effort to enact their own version of the parable of the talents. It is an explicitly Christian story -- about a Christian church and a New Testament tale -- yet it makes the events accessible to non-Christians by explaining what the parable was and its meaning as understood by the pastor.

Or from the Washington Post magazine, a different kind of religious challenge: an Army Reservist (and Republican Party activist) who wants to become a Muslim chaplain in the U.S. military, despite the government's insistence that because Islam does not permit women to lead men in prayer, a woman cannot be a Muslim chaplain.

Or an even bigger leap of faith described in the sports section of yesterday's Dallas Morning News: a high school football coach who remains a friend and mentor to one of his former players while the latter serves a prison term for killing his own mother. Both coach and convict describe religion as part of what keeps the bond strong: the coach believing that God put the player in his family's path, and the killer believing that this link to the outside is a sign God has not abandoned him.

There are thousands of similar examples from the media, and undoubtedly millions more stories that never make it into the news, of Americans' quiet certainty that God is part of their lives and that they can share that faith with others to make their lives better as well. It seems to me that we have a nation beautifully and extraordinarily rich in sincere faith, to a degree that is actually incompatible with demands for more religion in government. Hopefully the U.S. can avoid a spectacle like that of the last Kenyan election:

Although religion should be a private matter between individuals and whatever deity they adore, the countdown to the December 27 elections threw all that out of the window when Christianity became a major campaign tool and the main contenders for the presidency had to lay bare their religious credentials.
While Mr Kibaki and Mr Musyoka scored highly on the Christian platform, under the backing of the Catholic and Baptist churches, ODM leader Raila Odinga was largely perceived to be a heathen.
Mr Odinga found himself virtually under siege and had to go to great lengths to prove to voters that he was not just a Christian, but a baptised Anglican.
As if Kenya had suddenly revised Chapter V of the Constitution, which protects fundamental rights and freedoms of the individual, including freedom of conscience, of expression and of assembly and association, the Lang�ata MP �probably because of his memorandum of understanding with Muslims � became the target of vilification.
"Can this man be trusted?" became his opponents� mantra in the hunt for votes as the propaganda war escalated to unprecedented heights.

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January 19, 2008

Why the Media Has Less Interest in Democrats' Religious Convictions

The Democratic front-runners seem less inclined to say that we have to amend the Constitution to bring it into line with "God's standards."

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January 18, 2008

What Al Qaeda Believes about American Muslims

A passage in Curtis Bradley's and Jack Goldsmith's foreign relations casebook created a concern for Stephen Griffin and Eric Muller that the book unintentionally "endorse[s] a false, revisionist, and partisan history of the Japanese American internment," by suggesting that there was a fact-based fear of Japanese-Americans' becoming fifth columnists traitors who would assist Japan's invasion of the U.S. From what I understand, Michelle Malkin and others who have promoted this revisionism regarding Korematsu and whether the internment policy was sound rely almost entirely on decrypted transmissions from Japan's Foreign Office that describe the Office's attempt to influence U.S. opinion against entering WWII. This attempt included claims of "already established connections with very influential Negroes to keep us informed with regard to the Negro movement."

Like much of Japanese wartime thinking regarding its capabilities against the U.S. on its own territory, the Foreign Office's transmissions were wildly overoptimistic. The Malkin argument seems to be that because a delusional Japanese government was convinced that racial loyalty was a driving force in the breast of all Japanese people wherever they might be, it was perfectly rational for the U.S. government to believe the same thing without evidence that it was true. I find this as sensible as the U.S. government's taking the same estimate of American Muslims that Al Qaeda might: those Muslims who have not become degenerate Westerners are perforce on Al Qaeda's side. However, Sandy Levinson argues that it

doesn't strike me as "irrational" to fear that Japanese nationals would support the land of their birth against a country that had treated them so shabbily, and I'm not even sure that it's lunatic to believe that some 14th Amendment birthright citizens wouldn't be sufficiently angry at the treatment of their parents to turn against the US. Then one must take the step of arguing that it is also non-lunatic to engage in general sequestration given the exigencies of time with regard to conducting pre-detention hearings.
It is the combination of two ideas that may not in themselves be "lunatic" that produced a policy of ethnic internment that was not based in reason. The rationality Levinson claims for the fear that Japanese Americans, having been mistreated in the U.S. in a way that Italian- and German-Americans hadn't been, would turn on the U.S. is a rationality based to some extent in tribalism. It doesn't explain the non-tribal mindset; why would Japanese-Americans who left Japan and chose to remain in the U.S. despite the mistreatment become saboteurs for the homeland against their adopted country? It certainly wasn't based on evidence of widespread anti-Americanism among Japanese immigrants and their U.S.-born children.

So then we are left with the vague presumption that OK, maybe not all the Japanese-Americans felt the way Levinson describes, but surely some of them did? Even if there were some, it is instances of "some" that individual hearings are designed to cover. Internment even could have been used as a threat to coerce assistance from the Japanese American community: help us root out the traitors among you, the government could have said, or you're all being ripped from your homes and put behind barbed wire. Blunt tools often work better when they're being twirled menacingly than when they're actually applied. In short, only if one uses a very bare form of rational basis scrutiny, such as that usually applied to economic regulations under Williamson v. Lee Optical, does interning all Japanese-Americans on the West Coast survive the test. Levinson's idea of what were "not irrational" assumptions for the government to make about the psychologies of Japanese-Americans reminds me of good old "common sense," which need not be backed by any evidence whatsoever so long as it fits with existing prejudices -- ones here shared in common between the Japanese and U.S. governments.

Posted by PG at 11:45 PM | Comments (9) | TrackBack

January 15, 2008

Wait, Who Said the Clinton Campaign Was Racist Toward Obama?

Ramesh Ponnuru might be getting out ahead of the rest of the right, which has been predicting ever since Obama became a potential candidate for '08 that any criticism of him would bring accusations that the criticizer is racist. (They had to change this to "any comment of any kind" after Biden got hit with the Chris Rock references by exclaiming over Obama as the "the first mainstream African-American who is articulate and bright and clean.") Ponnuru says,

But what's interesting is the felt need for the Clintonites to distance themselves from these accusations, so as not to be accused themselves of racism.
But there's nothing racist about pointing out that Obama has used illegal drugs. And there's nothing racist about belittling his career, which has been pretty insubstantial compared to most past presidents. ...
Republicans are enjoying the spectacle of these dueling identity groups. But it's a taste of what the general election has in store for them. The Republican nominee is guaranteed to be attacked as racist or sexist, no matter how innocuous his words.
What's bizarre about Ponnuru's comments is that he's the only person I've heard claim that there is anything racist about mentioning Obama has done drugs or lacks experience. No one else sees racism in the references to Obama's drug use, only stupidity for the Clinton campaign -- of all campaigns -- to get into the issue of someone's smoking pot twenty years earlier. It's not racist for them to do so; it's just hypocritical after Bill Clinton whined about the politics of personal destruction every time the Republicans trumpeted an incident from his past that had nothing to do with whether he would make a good president. Similarly, concern for Obama's inexperience has not been characterized as "racist" by anyone except Ponnuru. Some have called it inconsistent, claiming that his time in the state legislature and in Congress stacks up fine next to the last two presidents' solely gubernatorial experience, but I'd be interested in a link showing any of the usual watchdogs (Jackson, Sharpton, et al.) who have said that you can't call Obama inexperienced because such criticism would be racist. Hell, they're usually the ones bitching about the fact he hasn't logged enough hours marching with them.

However, there's lots of mileage for the Republicans to gain in claiming that Clinton is being accused of racism when she criticizes Obama, or that Obama is being accused of sexism when he criticizes Clinton. Ponnuru says, "The Republican nominee is guaranteed to be attacked as racist or sexist, no matter how innocuous his words." The subtext of this is, "The white male is guaranteed to be attacked as racist or sexist, no matter how innocuous his words," because the Republicans are only running white males, and because their base is, well, white and male. Never mind that the Republicans talked about Obama during the New Hampshire debate and criticized his policies as liberal interest group (Thompson) welfare statism (Paul) that would bankrupt us (Romney) -- oh, and he lacks national security experience (McCain) and executive experience (Giuliani), and he's not a Republican (Thompson). And I didn't hear anyone say these criticisms of Obama were racist, despite coming from a bunch of white males one of whom will be the Republican candidate, because they weren't racist. They were completely fair evaluations of why a moderate-to-conservative voter wouldn't want to elect Obama. I thought some were inaccurate representations of Democratic policy preferences, but none had even the faintest tinge of "because he's black." No one brought up Reaganesque specters of Chicago welfare queens in Cadillacs when they mentioned the welfare state; they talked about how Obama over-relied on the federal government to solve problems and didn't trust the free market and localities. Astonishingly, if you don't say anything about race or that's a codeword for race, no one will think you're racist!

And this was at a Republican primary debate when they were asked the rather silly question of "Why not Obama?" and had to answer off-the-cuff without someone coaching them. I am sure the Republicans can manage just as well when they criticize Clinton, and will be fine in the general election. All of them know how to criticize an opponent on the issues and have shown they can do it. It's sad that with no justification offered, Ponnuru has a lower opinion of the Republicans' racial sensitivity than I do.

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January 14, 2008

TownHall Looking Generous in Comparison

When trying to leave a comment on a TownHall.com blog last year, I got signed up to their newsletter and can't seem to get off it. Most of what they send me is predictable and some is just advertising, but occasionally they manage to surprise me. One such email came the day after Christmas, with the headline: "America's wounded troops facing homelessness need your help this winter."

Dear Townhall Subscriber,
Frankly I'm still angry after reading that news article. Maybe you read it, too. I'm referring to the recent the Associated Press article headlined: Study: Veterans Make Up 1 of 4 Homeless
The article went on to cite government statistics that on any given night, 194,254 homeless people are America's veterans! As a wounded veteran myself, that headline hit me like a cold slap in the face.
My name is Jorge DeLeon. I lost my right leg when my [tank?] rolled over a land mine in Afghanistan. And I just can't believe so many other wounded troops who have sacrificed for our country may be left out in the cold during the coming winter months. Other wounded troops - many with young children - are facing a cutoff of their heat, electricity or hot water.
Right now I'm working with a nonprofit, nonpartisan organization that is doing something about it, and I'm humbly asking for your help. ...
Here's the paragraph that really set me off in the November 8 news article, which ran in hundreds of newspapers around the country: "Younger veterans from Iraq and Afghanistan are trickling into shelters and soup kitchens seeking services, treatment or help with finding a job." Shelters and soup kitchens? What in the world is going on here?? Many of these "younger veterans" have small children, just like I do. They've risked their lives and limbs serving our country. And this winter they won't even have a roof over their head...or a hot meal to eat?!
The government claims it's doing whatever it can to help. But obviously that's not enough. The bottom line is that these desperate servicemen and women are counting on patriotic Americans like YOU to "throw them a lifeline." ...

I am guessing that if a significant conservative media source was willing to forward this message on its mailing list, it was deemed appropriate for its audience and unlikely to offend most of them. So adverting to the difficulties faced by veterans in the context of an explicit charitable call to assist them seems to be acceptable.

In contrast, the lengthy NYTimes piece on "veterans of the wars in Iraq and Afghanistan who have committed killings, or been charged with them, after coming home" has aroused tremendous anger. Several blogs have pointed out that the rate of accused and convicted killing among Iraq/Afghanistan vets is no greater than the rate of convicted killing among the male American population -- which is fine if we think veterans are the same caliber of person as the average American. I was under the impression, however, that until recently the military did not take people with criminal records: "The Times�s analysis showed that the overwhelming majority of these young men, unlike most civilian homicide offenders, had no criminal history." In other words, if you think the point of the story is to imply that vets are more likely to kill you than their comparable non-veteran peer group would be, the comparable peer group is not all Americans, or all American males, or all young American males. It would be the group of Americans who were eligible to be recruited into the military and weren't.

However, I don't think the point of the story is to depict veterans as crazed murderers. Rather, it seems to be to highlight what some veterans are suffering and how that suffering may end up touching other people -- in the worst case scenario, due to a killing. The first paragraphs are about a 20 year old vet who self-medicated with beer that other people have to buy him, and who killed only when approached in a high-crime area by two armed gang members. The police officers quoted from the case specifically talk about how the vet's thoughts were framed by his combat experience.

Perhaps it's just that I'm not old enough to remember the kind of antagonism toward Vietnam veterans that made it necessary to include them as a protected group in employment policies, but I didn't see anything in the article that was bashing veterans. Indeed, it self-consciously noted,

Given that many veterans rebound successfully from their war experiences and some flourish as a result of them, veterans groups have long deplored the attention paid to the minority of soldiers who fail to readjust to civilian life.
After World War I, the American Legion passed a resolution asking the press �to subordinate whatever slight news value there may be in playing up the ex-service member angle in stories of crime or offense against the peace.� An article in the Veterans of Foreign Wars magazine in 2006 referred with disdain to the pervasive �wacko-vet myth,� which, veterans say, makes it difficult for them to find jobs.
The only bit of the article that raised my eyebrow was this: "Decades of studies on the problems of Vietnam veterans have established links between combat trauma and higher rates of unemployment, homelessness, gun ownership, child abuse, domestic violence, substance abuse -- and criminality."

Gun ownership is classed among homelessness and child abuse? I understand how possessing a firearm enables crimes, because it's easier to kill someone -- particularly unintentionally or on the spur of the moment -- with such a weapon. However, it isn't what I would have thought an inherently "bad" behavior.

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Old Liberalism and New Labor

I liked Barbara Ehrenreich's Nickel and Dimed, but this remark from her blog (which I read for the first time just now) bothered me: "And what about the unemployment rate? The old liberal faith was that 'full employment' would create a workers' paradise, with higher wages and enhanced bargaining power for the little guy and gal. But we've had nearly full employment, or at least an unemployment rate of under five percent, for years now, again, without the predicted gains. What the old liberals weren't counting on was a depressed minimum wage, impotent unions, and a witch's brew of management strategies to hold wages and salaries down."

I hadn't thought this was a particularly liberal faith -- rather, it's an economic one. If unemployment goes down toward zero, that means there's a very high demand for labor relative to the supply. If the demand for labor is outstripping the supply, this will pressure the price of labor upwards. However, like many economic models, this assumes the amount of labor is somewhat static. For minimum and other low-wage jobs in particular, of course, it's not. The annual influx of immigrants, both legal and illegal, means that the demand won't outstrip supply and there won't be the upward pressure.

To take Ehrenreich's favored target, Wal-Mart, let's assume that managers are indeed pressuring their lower-level employees to work more hours, not get breaks, etc. If there were a shortage of labor to fill those positions, management wouldn't be able to do this, because people who got disgusted and quit wouldn't be easily replaceable. Shelf-stockers and cashiers will be exploited for greater productivity up to the point that it causes a loss in productivity numbers to have to hire and train new employees.

Not to get all Lou Dobbs about immigrants as a menace to Americans, but discussing the effect of full employment on wages, without noting the effect that increasing the labor supply would have, is just unhelpful. It gives Ehrenreich a false rhetorical victory where she gets to claim that the old faith has led us astray. It also is part of a bad habit among liberals not to want to admit that immigration isn't a boon for everyone. That unwillingness is going to carry an electoral cost as the folks whose wages haven't risen figure it out instead of just buying Ehrenreich's explanation that it's the government's fault (for not increasing minimum wages) and the unions' fault (for not getting more members) and management's fault (for being evil incarnate). Legal intervention, collective bargaining and kinder management may be necessary remedies, but the lack of them is not the root cause of individuals' lack of bargaining power. You don't have to externally force the owners of capital to share more of it with the workers if the workers' ability to walk away would impose a harm on the owners.

Posted by PG at 12:08 AM | Comments (0) | TrackBack

January 13, 2008

ENDA and the insufficiency of disparate impact

I'm going to begin this post apologising for the inarticulateness of my previous post. It was completed at 3:30 am, so I claim a good excuse :p Since then, I have realised that the Sherman Act has been quite authoritative on the issues that the Court outlines, but nonetheless, I fear the new precedent the Court has set. One will see what happens when the First Circuit announces their decision in Cook later this year...

Continuing, in a way, from where I left off, another area in which notions of equality must be reexamined is in Title VII jurisprudence. Congress is in the process of passing (though of course, a filibuster and veto may yet derail it) ENDA, which would prohibit discrimination based on sexuality (the House has already passed the bill). This may be dangerous-the Court has already rapped Congress's collective knuckles for attempting to prohibit age and disability discrimination in employment. Without going into the issue in yawn inducing detail, the Court said that Congress was forcing the states to give these groups too much protection - under the Court's interpretation of the Fourteenth Amendment these groups could only challenge irrational discrimination, but Congress was instead providing them a level of protection reserved for suspect/quasi-suspect classes in the Court's jurisprudence. Since Congress could not modify the 'substance' of Art 1 of the 14th Am (i.e. modify the Court's constitutional jurisprudence ) when enforcing it under Art 5, the legislation was invalid.

Yet, Congress claims that this would fall within its Section 5 power of prohibiting sex discrimination in employment. The Court has suggested that in such issues congress has greater latitude as sex discrimination receives a higher form of scrutiny, which Congress may consider. In Hibbs, moreover, Rehnquist reasoned that Congress could infer discrimination from the sexes being disparately impacted, allowing it to enact the FMLA, which prohibited such disparate effects. Similarly, Congress appears to be reasoning, sexuality discrimination is sex discrimination: while Eve may sleep with Steve, Adam is being discriminated against because he too sleeps with Steve, because Adam is a man. There is also loads of evidence (which, unfortunately, I am told, Congress has not really placed on record) suggesting that the origins of homophobia lie in notions of gender propriety and hierarchy. (See Andrew Koppelman, "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination," 69 N.Y.U. L. Rev. 197 (1994), which, in 2000 was listed as one of the 25 most influential articles to appear in the N.Y.U. L. Rev.)

The problem of course, is that Title VII jurisprudence does not allow us to take into account the underlying motivation of discrimination, unless one can specifically produce evidence in that particular case of sex discrimination. Broader social dynamics are not considered. Accordingly, courts have noted that since there is no disparate impact - i.e. since gay men and gay women are affected equally by discrimination based on sexuality, no inference of discrimination can take place.

The Court could similarly opine that Congress therefore had no grounds to consider this sex discrimination, and strike down ENDA. Notions of equality must therefore themselves evolve to allow for arguments explaining broader historical trends - explaining how discrimination based on sexuality was specifically discussed in terms of gender roles, how opponents of the ERA articulated fears of gay marriage, how other arguments began to take stronger root ONLY as it began to be more and more unfashionable to speak of gender roles in that manner (I believe that it is no coincidence that the Anita Bryant's Save Our Children campaign emphasised the predatoriness of homosexuality rather than the gender roles just as gender role justifications were becoming less fashionable-Craig v. Boren had been decided the previous year.) One can only suggest that broader notions of sex equality would have to be permitted that extend beyond the 'disparate impact' of a given case. However, a judge who may examine a brief without allowing the entry of further evidence may well (and indeed understandably) deny that a factual claim of sexuality discrimination legally constitutes sex discrimination and under the Twombley rule, may well dismiss a claim for lack of a factual basis to support a legal claim. On the other hand, through greater explanation and examination of issues through a trial, she may understand the issues involved, and may be more willing to consider such novel arguments.

Posted by Craig at 11:45 PM | Comments (0) | TrackBack

January 12, 2008

Civil Rights and 12 (b) (6)

In its decision in Bell Atlantic v. Twombly issues on May 21 last year, the Supreme Court eliminated the "no set of facts standards" in Conley v. Gibson's outline of requirements for satisfying Rule 8. Instead, a new plausibility standard has been announced - the 'facts' (as opposed to the legal conclusions) . Much of the commentary (indeed, ALL of the commentary that I have found) has focused upon the operation of this rule in the antitrust context - and justifiably so. After all, one can hope and dream for a highly restrictive application of the rule, to antitrust contexts, upon issues where the Court has already made firm pronouncements and the authorities are aligned. In this case, then, one could say that the respondent's suit alleging conspiracy did not survive a 12(b)(6) motion because the Court (and multiple authorities) had uniformly noted that as a matter of law, alleging parallel action (which admittedly, appears to be the extent of allegations in the brief) does not amount to conspiracy under the Sherman act. Even if the facts stated were true, no conspiracy could therefore be proved. This would be a comforting reading, if one did not (achronologically) have in mind the MA's district court's dismissal of gay service members' challenge to the Don't Ask Don't Tell policy a little over a year before the Twombly decision hit the streets.

Without specifically going into the various issues that arise in the Cook v. Rumsfeld decision, (the DADT case, now Cook v. Gates), two aspects of the Twombly decision trouble me. Clumsily stated, (as befits statements made at 2:06 am) they are:
1) 'Procedural' stare decisis. This is a term which I am going ahead and presumptiously coining (others may have a nicer, better term for it) where the Court uses its prior precedent to prevent an outcome not directly related to the substantive holding of that precedent. Here, for example, we see the Court presuming (without explaining - or reexplaining) the substantive analysis of its previous cases as being valid to come to a procedural decision. Thus, though the procedural decision relies on substantive law that the Court has previously articulated, the Court does not actually analyse this substantive law, resulting in an incomplete analysis of the procedural rule.

The neologism of course may be rather imprecise: as we see this sort of analysis appearing in post Boerne 14th Amendment Section 5 cases all the time. In these cases the Court uses the analyses of its previous cases to decide (for e.g.) whether the remedies (against States) that Congress affords to various groups through legislation comports with (or illegitimately exceeds) the level of constitutional protection that the Court has afforded to those groups under 14th Am, Sec 1. Even in these cases however, the Court is careful to re-explain elements of its analysis: thus in Garrett we see Rehnquist re-explaining elements of reasoning in Cleburne, to explain why the disabled did not qualify for the (apparently) heightened level of protection that Congress was affording them in the ADA, and in Hibbs we again (surprisingly) see him re-explain the reason for the Frontiero/Craig/VMA precedent raising women to a higher constitutional class. Considering the comparatively iconic nature of 14th Am jurisprudence and sex discrimination jurisprudence in particular, this explanation was perhaps unnecessary. Yet, it is made. It is troubling that such defences of the relevant precedent do not occur here, for cases in which they are arguably more required (if one ignores for a minute the different valence of stare decisis when made in statutory cases as opposed to constitutional cases). Instead, the precedent of the Court is used to allow, procedurally, dismissal of a case that may in fact be litigated to challenge the substantive issues of the very precedent used (Disclaimer: I know NOTHING about antitrust law as is probably obvious). There is one more reason, however, that Twombly becomes particularly upsetting.

2) It upsets the aspect of civil rights that hopes to attach new valences to legal terms through a recasting of factual issues. When a court looks at the facts that are presented to it at/through trial - whether the issue of segregated schools or the issue of gay couples, it often realises that the legal referents should mean MORE or something DIFFERENT than what they currently mean, that 'equality' perhaps, should be redefined, that 'relationships' have a different meaning, that 'intimate acts' within relationships cannot be considered under the same rubric that stare decisis would suggest (I am of course tending towards Lawrence in my thoughts). If however, the claims that must be stated must show a violation of a constitutional right in the same way that the constitutional right has always been imagined, then the dream of a 'living constitution' with evolving rights evaporates. We are left in the world of Plessy and Hardwick. One can only hope that a kinder form of notice pleading will evolve.

Posted by Craig at 1:28 AM | Comments (0) | TrackBack

January 11, 2008

For Longtime De Novo Readers

I just found out that the Afsharis, whose firing from the National Institute for Occupational Safety and Health due to an alleged failure to pass a security check and whose lawsuit against the government I had posted on in the past, did win reinstatement to their jobs in December 2006. They still don't know what caused them to lose their jobs in the first place.

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January 10, 2008

Bush's Use of Occupation

With the news today abounding in headlines about Bush's saying during his visit to the Middle East, "There should be an end to the occupation that began in 1967," in reference to Israel's presence in the West Bank and Gaza Strip, I wanted to point out that Bush doesn't use "occupation" to mean "horrible oppressive regime." He has not shied from using the word to describe the U.S. presence in Iraq, for example. Therefore "occupation" in the Bush lexicon doesn't seem to mean a foreign presence that is necessarily illegitimate, only that it is one that must have an endpoint.

In other Bush Administration news, it looks like an economic small government -- i.e., starving the beast -- could help achieve a civil libertarian small government as well. Though I do wish they would pay the bills on the taps that were capable of getting FISA court approval... those sound like good, constitutional ones to have.

Posted by PG at 10:57 PM | Comments (0) | TrackBack

South Carolina v. New York

With regard to no-fault divorce, it seems to be a wash between the two states. Despite many claims that New York is the only state that lacks no-fault divorce, in fact the grounds for divorce are quite similar in both. S.C. Code Sec. 20-3-10 says, "No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit: (1) Adultery; (2) Desertion for a period of one year; (3) Physical cruelty; (4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or (5) On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."

The first three parallel New York's fault grounds: adultery, abandonment for one or more years, and cruel and inhuman treatment. Because New York permits a more expansive definition of "cruelty," rather than specifying it must be physical abuse, mental cruelty can be a ground there but not in South Carolina. On the other hand, incapacitation due to substance abuse is a ground in South Carolina but not New York, while imprisonment for three or more years is a ground in New York but not South Carolina.

The fifth South Carolina ground is the "no-fault" one, which requires only that the couple have been separated for a year. This is very like the New York no-fault ground of one year of living apart under a court's separation judgment or under a separation agreement signed by the parties. Admittedly, the ground in New York is actually a conversion of the separation into a divorce, whereas it seems to operate a little more informally in South Carolina. Nonetheless, the practical reality -- if one or both parties want a divorce, they either need a fault ground or need to separate for a year first -- is true in both states, and thus makes the common complaint that only New York lacks no-fault divorce seem inaccurate.

On nepotism, South Carolina is the clear winner. In New York, politicians' offspring actually have to pass the bar exam; South Carolina House Judiciary Committee chairman Jim Harrison boasted of his daughter Caroline's "hard work" in getting a section of the bar exam thrown out for her and 20 other applicants, enabling them to pass after all.

Posted by PG at 3:13 PM | Comments (0) | TrackBack

January 9, 2008

Hello Bilbao!

In a recent column, Stanley Fish concludes,

To the question �of what use are the humanities?�, the only honest answer is none whatsoever. And it is an answer that brings honor to its subject. Justification, after all, confers value on an activity from a perspective outside its performance. An activity that cannot be justified is an activity that refuses to regard itself as instrumental to some larger good. The humanities are their own good. There is nothing more to say, and anything that is said � even when it takes the form of Kronman�s inspiring cadences � diminishes the object of its supposed praise.
That's all fine, but along the way Fish remarks, "You can�t argue that a state�s economy will benefit by a new reading of 'Hamlet.'" While Hamlet might not do the trick, many cities, from Spain to southwest Virginia, are investing in the humanities as a way to attract tourists and do exactly what Fish claims they can't: boost the local economy. I don't know how often this succeeds, but certainly the conventional wisdom is that the Guggenheim in Bilbao reinvigorated a rusting industrial city, as visitors flock to see both the architecture and the contents of the museum. It's also made the city a worthwhile place for a movie shoot, if only to get an image of Gehry's titanium curves on screen. Closer to home, the temporary relocation of MOMA's collection to Queens, particularly the Matisse-Picasso exhibit, brought attention to Long Island City. Of course, acknowledging that people still do enjoy the humanities, and will pay good money for them, would run counter to Fish's dismissive claim that cultural capital is now worthless.

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January 8, 2008

Personally, I'm Cool with Undignified

While deriding the sincerity of both sides in Baze v. Rees, as well as dismissing any importance in how executions are performed, Dahlia Lithwick fails to pick up on what might be a genuine 8th Amendment question exposed in the oral argument she describes: are dignity and painlessness both mandated by the prohibition on cruel and unusual punishment? And if so, if the drug we use to prevent any "undignified" death throe thrashing* potentially masks the prisoner's serious pain, how do we balance these two requirements?

As the title of this post indicates, I'm strongly on the side of painlessness and doubt whether dignity is an 8th Amendment imperative at all. Certainly none of the questions the Court asked to be briefed mention it; they're all about pain and suffering. Death with dignity is usually understood in American politics as a death one chooses, in contrast to the perceived indignity of dying locked in an increasingly defunct body. The vast majority of death row inmates, in contrast, do not go gentle into that good night; they pretty much have to be dragged through the appeals process kicking and screaming, raging against the dying of their last habeas petition. We kill them more like we kill rabies-infected animals, not like we kill a terminal cancer patient who has begged for euthanasia. Having decided on this course, why should we put the executee through pain in order to give ourselves the pretense that killing a living being is a calm, peaceful process? I am not saying that the inmate shouldn't have some dignity while he is conscious, while he is, to be frank, still recognizably a living human being instead of irreversibly on his way to being a corpse. Thus I agree with Lithwick that Scalia's suggestion, that inmates don't deserve a blood pressure cuff and should instead be slapped and shaken to determine consciousness, is a bad one.

The majority and dissenting opinions in a 6th Circuit case about Tennessee's play out the basic argument. Judge Sutton says the paralyzing agent is necessary to give the inmate dignity and protect the observers, who may include the inmate's family, from the false belief that the inmate is in pain. Judge Cole counters, "Because the drug does not affect the brain or nerves themselves, however, an unanesthetized patient remains completely conscious, and suffers slow suffocation and excruciating pain from the third drug (potassium chloride), all while appearing to be in a peaceful sleep. (See id. 11.) For this very reason, Tennesee in 2001 declared the use of pancuronium bromide or any other neuromuscular blocking agent on nonlivestock animals inhumane and illegal. See Tenn. Code Ann. � 44-17-303(c); 44-17-303(j) (providing criminal sanctions for using any substance that acts as a neuromuscular blocking agent when euthanizing non-livestock animals). Thus, Tennessee protects dogs and cats from the risk of excruciating pain in execution, but not death-row inmates."

A Supreme Court opinion that definitively stated that painlessness was the first priority, and that dignity in one's death throes ranked somewhere well below getting a vein on the first jab, could be of genuine use to states. It would tell them that they should be minimizing the cruelty to the inmates -- you know, the people whose 8th Amendment rights are most relevant here? -- instead of fretting about the misunderstandings or hurt feelings of the onlookers.

* Death Throe Thrashing would make a cool heavy metal band name.

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January 7, 2008

What Is It About Mormon Missionaries?

A central claim of Noah Feldman's Sunday Times magazine essay on Mormonism is that Mormons have had to be secretive about the precise content of their faith in order to avoid persecution: "If 19th-century Mormon secrecy was a matter of survival, 20th-century Mormon reticence was a form of soft secrecy, designed to avoid soft bigotry. Revealing Mormon teachings would no longer have led to lynch mobs or federal arrest, but it certainly would have fueled the kind of bias that keeps politicians out of office."

Yet the face of Mormonism many Americans first encounter is one that Feldman only briefly mentions: "The church�s most inviting public symbols � pairs of clean-cut missionaries in well-pressed white shirts � evoke the wholesome success of an all-American denomination with an idealistic commitment to clean living." How can a missionary be secretive about his faith? In particular, attempting to convert people in a Christianity-dominated America requires missionaries to do exactly what Feldman declares Mormons haven't done, i.e. develop "a series of easily expressed and easily swallowed statements summarizing the content of their theology in ways that might arguably be accepted by mainline Protestants. To put it bluntly, the combination of secret mysteries and resistance in the face of oppression has made it increasingly difficult for Mormons to talk openly and successfully with outsiders about their religious beliefs."

I think the first Mormon I ever met was when I was taking a summer course at Trinity University in San Antonio. Being a college student, he simultaneously professed both skepticism toward and pride in his religious tradition. The only thing he told me about it that I remember is that God has a wife, but that we do not know Her name because God does not want us to take it in vain as we do His. I have no idea whether this actually is accurate Mormon theology, but I found the notion quite charming (Hindu gods don't always get along so well with their spouses). The next Mormons I met were two different pairs of missionaries while I was living in Northern Virginia before law school. They were all very nice and in both instances I would have been happy to talk theology with them had I not been on my way elsewhere.

Admittedly, a Hindu agnostic poses a different conversion project for a Mormon missionary than does the average American, who is a Protestant, but had it been my roommate who had come to the door, that would have been precisely the set of beliefs they would have faced. She was baptized and raised in the Methodist church, and was a believer in the vague way that twenty-somethings often are when they'd like to sleep late on Sundays but also intend to raise their children in some kind of organized religious tradition.

Thus the idea of Mormons as incapable of talking about their religion with Protestants just seems obviously wrong. Certainly a Mormon missionary and a Protestant evangelical might be at odds as each seeks to convert the other, but this isn't due to an inability to communicate the tenets of each one's faith. The mission mandates Mormons to be ready to discuss their faith with people who don't understand it. Indeed, this requirement ensures that they will be much more capable of doing so than I am at trying to explain a polytheistic religion that has no founder, to anyone coming out of the Abrahamic Western religions.

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January 6, 2008

Morality Is a Journey, But Law Requires a Destination

David Schraub has a good post about why we should not choose a theory of justice based on its attainability. He says in part,

For example, "nobody should (unwillingly) die of illness" is an unattainable philosophical position -- we probably will never reach a point where nobody dies of a disease. But we can still move towards that reality, by making it progressively less likely that people will die of disease. Someone wedded to the idea of attainability, however, would argue that beyond some point it is no longer unjust when people die of disease -- there is an achievable "limit" at which point the requirements of justice have been met. Demands beyond that are unreasonable insofar as they effectively posit that we can never have a completely just health-care system.
I agree with his theoretical point that justice is more of a process than a destination, as are many other components of morality such as consent and fairness. However, this gets more complicated when we give people actionable rights in morality. For example, bioethics tells physicians that they should regard consent as a process rather than as just an goal to reach, and this is true for a good doctor-patient relationship; doctors should encourage a constant stream of communication that ensures patients understand as much as they are capable of doing and are making decisions accordingly. However, if a patient brings a malpractice suit claiming that she did not consent to a procedure, we have to have a defined checklist of what constitutes consent. We have to be able to say definitively, "At the point the patient received X amount of information and indicated Y decision, she consented for legal purposes." It puts an unjust burden on doctors to give them an undefined obligation enforceable by law.

Or to use David's example of the health care system as a whole, we cannot give people an actionable right to have their illnesses treated to an infinite extent. No system in the world does this; rationing is a fundamental aspect of resource use. The particularly rights-oriented, litigious nature of the U.S. therefore makes legal commentators particularly cautious about saying that something is unjust if it is not stretching for the unattainable. We see this in U.S. law's unwillingness to impose good Samaritan obligations on bystanders; we only make legislation to protect the helpful bystander from liability should his rescue go wrong.

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Shareholders Could Give Steve Jobs a Raise

Although I can give Prof. Bainbridge some sympathy for his federalism concern about "say on pay" Congressional legislation that would allow shareholders a non-binding, advisory vote on their boards' executive compensation decisions, his description of what the legislation would do verges on inaccurate. Even if he didn't write the headline "No need for federal regulations limiting executive compensation," he ought at least to have noted that it was erroneous when he linked the piece. "Say on Pay" doesn't limit executive compensation; it simply allows shareholders to express their opinion on this particular area of corporate governance. Those who have been as well done by as, say, Apple's shareholders in 2007 might vote to increase compensation for the executives responsible for the stock's success, and at minimum to approve the board's chosen pay package. If executive compensation is in some way broken, with pay insufficiently linked to performance, in some companies there might actually be a problem of under-compensating great performance, just as some companies overcompensate mediocre and poor performance.

I agree that Bainbridge knows about corporate law and governance -- contrary to his false modesty, knows an awful lot -- but it's unfortunate that his description of legislation is likely to mislead those who genuinely know "a little bit." He set off a stream of comments on his blog that indicate he successfully gave the impression to his readers who may not have read Obama's bill themselves that it caps compensation in some fashion.

For example, commenter Morgan declares that Obama is a "socialist" who "want[s] a common mediocrity." He seems to think he has made a killing point when he concludes by asking "are Obama and the rest going to try to do anything about athlete�s salaries?" Bainbridge utterly neglects the principal-agent problem that undergirds calls for shareholder democracy, and left ignorant about it, we get silly questions like that. Shareholders own corporations but do not have direct control over the compensation of executives; like most other decisions, this is delegated to a board the shareholders elect. In contrast, the owners of professional sports teams do get to decide how much the athletes are paid. George Steinbrenner, as principal owner of the New York Yankees, has a great deal more "say on pay" for A-Rod et al. than shareholders would get even under the proposed legislation.

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