Thursday, March 30, 2006

Stanislaw Lem crosses event horizon

How far from you can you get and still be you? What does it take to make an identity? How would we interact with identities that are so far from us that the term "consciousness" is applied equivocally?--through joy, narrative, guilt?

Lem attacked all these problems with a playful, childlike gusto, proposing thought experiments in short stories, solving them through protagonists with surprising amounts and types of character, and anticipating some of the greatest recent writers--everyone from Paul Auster to Gene Wolfe stole gratefully from his horde of genre-bending fiction.

Since Lem had a scientific background, he often fit the round peg of our human nature into the square hole of our creations, pointing out the joy we take in the technical puzzles we've created. If you've seen the movie Brazil, which is timeless because it chooses such a concrete past time to represent the future, you'll know how Lem can make you anticipate how time will change us despite his talk of transistors and oscilloscopes.

If you've only been exposed to Lem through the recent movie Solaris, either read the original book, or go back to Tarkovsky's movie version. (In fact, watch any of Tarkovsky's movies: he is the Lem of cinema.) How would you feel if you knew you'd been resurrected by someone's guilt and existed only as a ghost to haunt him? In these and other ways Lem mixed his Catholic roots and his science fiction aspirations. His silliness and willingness to speculate wildly remind me of the Catholic philosopher Stanley Jaki's biological ruminations: they are both "Faust in reverse." My favorite Lem: Tales of Pirx the Pilot.

Lem died yesterday.

Tuesday, March 28, 2006

Virginia Postrel retiring from the New York Times

Ms. Postrel, one of the most insightful economic writers in any medium--but specializing in the story-behind-the-story of many column-inches but even more insights--has written her last for the New York Times. As always, it is a doozy. Dragging us back to reality from our blissful information age, she notes that our riches are made possible, or rather made possible here, by the humble cargo container. "Just as the computer revolutionized the flow of information, the shipping container revolutionized the flow of goods." She discusses regulation's role in saving us from progress, the globalization of tastes (to those with purchasing power from those without, and back again), creative destruction, and the scalability of our desires...to whatever we can get.

She was editor of Reason magazine at its height, and is especially dear to me as the author of "The Substance of Style," which explores how we create ourselves through choosing from the ever-expanding menu of experiences provided by life--and consumer producers. Her blog continues. She also recently donated a kidney to a stranger whose life was at stake. All in all, a truly remarkable woman. I look forward to her next project.

Law, March Madness, and GMU: standards of review

In honor of GMU getting to the Final Four--their law school being one of the most innovative and interesting around--I'd like to bring up something about the reviewability of referee's calls in sports, including NBA basketball review and the coach's red flag in football. I'll first mention it in terms of juries and criminal prosecutions, and then mention the application to sports.

The prosecution can't appeal criminal decisions; of course the defendant, if found guilty, can appeal. But generally not-guilty verdicts are final. (Unless there are errors solely during verdict instructions or at other similar points before double jeopardy has attached. Other people who have paid attention during crimlaw might be able to fill this point in.)

What effect does this have? A first guess would be that it helps defendants. But this might not be the case.

Let's break this into two phases--the trial and the possibility of appeal--and assume that the lower trier of fact has imperfect information about what will happen on appeal, but is aware that a not-guilty verdict is final, while a guilty verdict will be reviewed for error. But the standard of review for appeals courts is generally quite deferential to the lower trier. So there is, in fact, often no real, substantive, second bite at the apple. So a jury may be aware that a not-guilty verdict is permanent, and believe that they can give the benefit of the doubt to the prosecution because their decision will be reviewed. But that review may in fact not be substantive. A jury may incorrectly believe that they can pass the buck on some close-call question of fact ("was the witness credible?") or of law ("was the mere fact of drugs in the car enough to establish possession?"); or they can confuse the reviewability of these two questions; and with a general verdict there's no way to tell what the jury's questions were. So if jury decisions are corrupted by knowledge, but incorrect knowledge, of higher level review, then:
The lack of appeal for not-guilty verdicts may in fact harm defendants.
Of course, this is all empirical. How much do juries know about appealability? How deferential is review? And how willing are juries to give higher courts the chance to correct their errors? But this is another case where a first guess about who is helped by a policy can, given certain circumstances, be exactly wrong. Rent control may be the most famous example.

The application to sporting review is pretty clear. If in football the line judge, who decides whether the ball has crossed into the endzone, knows that he'll be reviewed, but overestimates the possibility of his call being overturned (since in football the standard of review is "obviously" wrong, and the review is made by the referee, not the line judge), then he may make calls he would otherwise not make. Strict standards of appellate review can corrupt the trial process itself.

The Stakeholder Society: founded in the Lockean Proviso?

One way to justify the stakeholder society suggested by Ackerman and Alstott (everyone gets a $X stake at birth: see e.g. 41 Ariz L Rev 249, or the American Prospect, 11(16) July 17, 2000) is to demand, as Ackerman does, that every American "get a fair start in life." This could be a fundamentally Lockean idea. It might also just be plain-vanilla liberal, or some extension of Rawls, or something else. Lefty Justin discusses a simple and elegant version of it below. Locke supposes that everyone has a right to the bounty of the earth, to natural resources and land to mix his labor with. Lockean theory, to some degree, needs the frontier, so that the disgruntled and innovative can push forward and start afresh. To keep the frontier alive, justice requires that every first-expropriator of property (who starts the property chain so that trading can occur) leave "as much and as good" behind for his followers. Since this is no longer possible--there is no more land beyond the frontier, since there is no frontier--either Lockean theory breaks down, or it needs a correction, in the form of an initial stake to make up for the missing Lockean Proviso. This correction gets us back to the first position, where everyone can seize goods and so everyone somehow starts equivalently. There's no "first mover" advantage--being born before expropriation was complete or after doesn't matter. Everyone has either resources or their equivalent in cash. This is equality of opportunity, which has a nice moral ring to it; but it's not some form of nasty pinko radical egalitarianism, since it doesn't insist on anything approaching equality of outcome.

There's one problem: these resources are pretty worthless, and so their cash equivalent is rather paltry. Milton Friedman has estimated that the commodity value of physical resources in situ, and unimproved land, if this value were spread about, would put folks dramatically below the poverty level. (I'll find this reference sometime; it's in Capitalism and Freedom.) This points to a basic truth: the vast majority of wealth in America is in the form of capital, which is effort mixed with resources--whether the result is refined goods (mixing effort and resources to make machines which then make nice new things) or social goods (mixing effort and resources to keep people alive so they can learn how to do things better). But capital is not an equality of opportunity issue. Someone has already mixed their labor up with the resources; the outcome has already come-out. Continue... Maybe you're not joining the race late by being born late, but you're wearing leather sandals and your competitors are wearing space-age jetpacks. If you want to correct for this result, you need something more than equality of opportunity in a nice cozy making-up-for-the-closing-of-the-frontier sense. You need a strong theory of egalitarianism--that mixing your labor with something can still be trumped if others need your result. And those theories are hard to come by. Or hard to keep, if you expose your theory to political and philosophical debate.

This problem also sits deep in Reich's New Property, in which the government owns much of a nation's capital and distributes it as largesse, and people can't call bull$#!+ because they're getting something for free, and are better off than the baseline of no-largesse no matter what package they get. The problem is, the magnitude of our accumulated social capital makes the baseline look pretty impoverished indeed. Again, the mere fairness restriction on the new property leads to a pretty weak protection against radical inequality without a more powerful injection of theory.

So stakeholder theory might be Lockean, but it would permit those who truly just start out with a fair share of the world's resources to go somewhat hungry. The lack of the frontier is not the real problem. The real problem--as with so many things!--is history.

PS: in Ackerman's law review article above, he notes that some people will squander their stakes, but it's important that the majority who do not blow it be given a chance to profit from their responsibility. This same willingness to allow a few failures in the process of improving the lot of most was not, um, much in evidence when Bush proposed privatizing 6% of Social Security. One always seems to evaluate one's own plans a bit more charitably...

Monday, March 27, 2006

Bootstrapping: Quine's Gavagai, and Derridas's Stable Meaning

The saying that "getting there is half the journey" is true both in road trips and in the creation of philosophical disciplines. How do we come by a full science of any subject, when at the beginning we don't even fully know what the first principles of that subject will be? What is the relation between moving from (using) the first principles of a mature science and moving to (finding) the first principles of a developing field? Derridas and Quine attack the possibility of going in either direction. Aquinas lets us understand their criticisms in a new way, and get back on track.

Derridas begins with the problems of Saussure's "structuralist thesis," that the meaning of terms in linguistic systems is determined by relationships, rather than the other way around. Stability of meaning requires that meanings not be able to change their referents, that meanings not collapse into each other, or rely too-intimately on further meanings that are not-yet-spoken. Many metaphysical pairs, like form/matter and actuality/potentiality, do not have an independent, stable defining point: so, says Derridas, the pairs either reflexively collapse, or demand some further explication that can never come. Thus the first job of deconstruction is to destroy metaphysics--to, as Neitschze says, kill God.

Quine has a similar attack on the interpersonal communicability of meaning. "Radical translation" is the attempt to bridge a gap with no common words, and since this is in some sense where we all begin from, Quine argues, it is a more important problem that the likelihood of being stranded on a desert isle with a native would indicate. He wants to know "how surface irritations generate, through language, one's knowledge of the world." Suppose you are being led by a native through the woods, and you see a rabbit run past and the native says, "Gavagai." Your first guess is that gavagai = rabbit. But context makes this guess dangerous: suppose it means "edible animal" or the native was shouting "take cover" because it's a venomous rabbit. We want to move from "stimulus meaning"--the mere response generated by simple external facts, whatever the underlying meaning ("take cover!")--to "occasion meaning"--the natural meaning in the present circumstances--to "standing meaning"--the ability to abstract meaning to include counterfactuals or speculation whatever the current circumstances. But this is difficult. No finite set of observations will exclude the possibility that gavagai means "rabbit until the year 2007, and then tree." Yet language and translation seem to work: but why? Continue: Bootstrapping.

Aquinas accepts both these criticisms (although of course Derridas and Quine were not attacking St. Thomas, he being considered long since deflated). Thomas, with Aristotle, admits that many fundamental antinomies of any discipline, like cause/effect in metaphysics, are only understandable in terms of each other, and that our understanding of them as we begin our inquiry into their meaning will change as we understand more fully the organization and principles of the discipline. As MacIntyre says, "Achieved understanding is the theoretical goal of the practical activity of enquiry." A complete science (like a fleshed-out ethics) explains the necessary phenomena of its subject matter, but in coming to this grasp we formulate and reformulate our initial guesses, being led forward if we inquire correctly by the natural principles of the discipline. These final principles are fully intelligible only in light of the complete body of theory. These final principles are thus analytic (as opposed to synthetic) and yet not a priori. They are the result of empirical and reflective investigation.

Thus, to Derridas, Thomas says that the completed form of the discipline draws us onwards, and so the meaning that is not-yet-spoken is bootstrapped towards by the natural, internal principles of the discipline, and the antinomies do not collapse because full meaning is indeed held only in the more complete theory, not in a particular word apart from its opposite (let alone by the word by itself). To Quine Thomas says that the enterprise of language is indeed constituted by projects of human engagement which give structure to mere stimulus meaning, allowing us to reach joint natural meaning (although not infallibly), and that practical rationality uses dialectical exploration to gradually approach the shared meanings of these shared projects by the internal logic of shared human nature that binds us together.

Aquinas-following-Aristotle is thus in some sense an essentialist Popperian. He believes in falsification as a method of inquiry, and yet he believes that dialectical debate can reach truth because the principles of a particular science present themselves to us, even if in inchoate and defeasible form. The essence of the subject organizes our falsificationist project more deeply than a mere Popperian hopefulness (or fatalism). This is not to say that any subject in this world will be finally and fully complete. But we are enabled, and constrained, by natural supports, and natural barriers, that operate as principles to which we move in maturing our understanding and from which we can move as we apply our new understanding. Derridas and Quine are too pessimistic. Metaphysics saves the day.

Belarus and Ukraine continue to suffer setbacks


Belarus protests and crackdown continue; see BR23 for more details. Ukrainian ruling reform party loses at the polls; Yukaschenko might not be prime minister much longer. Veronica Khokhlova discusses. Does the CNN Minsk photo to the right look like some sort of Hitleresque video game? "Aryan Rampage" or something? Could you please pick on more helpless looking pro-democracy demonstrators, and dress in more storm-troopery garb? The good guys aren't quite obvious enough.

Thursday, March 23, 2006

Soriano, the Nationals, and European soccer: Bosman ruling for America?





Alfonso Soriano has agreed to play outfield for Washington. (Rather than persist as one of the less-spectacular-fielding second basemen around: he regularly has a FP around 970, and his career range factor is 4.74.) The Washington Post summarized some issues in employment law that would have been matters of first impression had Soriano not given in. Baseball is one of the most confusing areas of sports law around, with tons of exemptions from anti-trust and labor statutes; see, e.g., Federal Base Ball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200 (1922). Many speculate that Soriano gave in to preserve his value once he reaches free agency. Most Americans almost certainly do not realize that European soccer covered some of this ground about ten years ago in the Bosman ruling. Wikipedia has a quick description; some more of the EU labor law issues are discussed here.

Tuesday, March 21, 2006

I'd like to thank all the little people: The World Baseball Classic


With only a couple of major leaguers in the lineups, the first World Baseball Classic turned out to be surprisingly dramatic. Despite being a bit of a sports patriot (especially with respect to the World Cup), I'm a bit glad that the U.S. didn't win it all: we had more starpower than all other teams (except the DR) combined. It's great to see that baseball still is made by spit and sweat and a bit of luck.

Monday, March 20, 2006

Edward Said and Orientalism: French and Anglo-American approaches

Why do we so desperately need to quickly grow Arabic scholars and linguists to help us understand a part of the world that seems the most threatening because it is least willing to play by "our" rules? What happened to oriental studies?

Mr. Said killed them. Prospect magazine recently had an interesting summary of our current predicament, and how Said helped build a fortress against the forces of ignorance and prejudice, but turned the guns in the wrong direction. Some of the points made:
  • Modern perceptions of Arabs and Muslims are not formed in any meaningful way by academics, who were Said's main targets. He helped destroy an academic discipline that, in fact, was a moderating influence on popular culture's portrayals of the east as the villain.
  • We cannot turn to Muslims in an attempt to understand their culture. Historically, Christians have presented a broad, unified front to outside religions like Islam, but a front that masked serious divisions within that have profound real-world consequences. The Muslims do the same to us.
  • Said's accusation that academic study of the Arab world justified imperialism does not match timelines very well. Orientalism's first peak was in the 17th century, when who would colonize who was very much in doubt. (The Battle of Vienna, which stopped the Ottoman push to conquer all of Austria, was 1683.) The second phase of Oriental studies was in Britain between 1940 and 1970, and coincided with the end of British imperial ambitions.
To study something is not the same as to demonize it. Romanticizing something--while not a true form of understanding--is a start. If all knowledge is relational and perspectival, as po-mo's claim, then some form of romanticism may be our only alternative. G.K. Chesterton once mentioned that it is perfectly fine to laugh at a foreign culture--the one thing you cannot do is pretend that you understand it.

It is also interesting to speculate about the different ways the French and English have managed their empires and relations with Arab and Muslim lands. Neither colonial policy was benign, of course. But British rule was generally more indirect. The French intermittently made their dependents full citizens, and always viewed colonies as full provinces of metropolitan France; this ironically meant more direct rule by French authorities. The British farce of "virtual representation," whereby each member of Parliament theoretically represented the entire empire, meant in practice that the chain of administration was broken, and colonial rulers had more leeway to govern according to local needs. This led to British intermediaries who understood their subjects and would often become academics after leaving diplomatic posts, while French administrators were basically just functionaries operating within a universal civil law system as if they were just an outpost of France.

Plus, the French used the Sphinx for target practice. (Actually, that's probably a myth. Hmm.)

Sports as the beginning of change


It certainly will not get your heart racing like the infamous photos of the summer-olympic American women's sand volleyball team of Misty May and Kerri Walsh (no link provided--not hard to find if you are inclined), but if you like seeing women diving for a save or going up for a spike wearing a form-fitting tent--and thereby sticking it to the man--then your soul will be warmed by the new "sports hajib" being provided to Somalian refugees. This is like watching a culture change before your eyes, seeing what is normally an evolutionary process occur under time-lapse photography. Lots of girls in America get their first taste of mojo in life from sports. I hope volleyball makes a bigger impact in the developing world's dreadful inequalities than our biggest bombs.

Positivism as dessicated Nomos

If you have ever wondered about laws and norms in their capacity as guides for our glad cooperation, or just our grudging acquiescence, or even having merely the profound dignity given by being benchmarks against which we violently resist--or wondered about laws and norms in their internal logic, their narrativity that draws you into a world in which the grand sweep of history is more real than what you eat or wear, and an arc, a future-spanning trajectory that makes your desires small but gives them meaning--or wondered about laws and norms as both inspiring and intimidating, making you love and yet recoil--

--you will not find the cup of your wonder filled up by positivism. Consider two sixty-page excerpts from a positivist and a narrativist tract, say Hart's The Concept of Law and Robert Cover's Nomos and Narrative. I think I pick these fairly, as two of the greatest in their schools (if Cover has a school--in fact he has no entry in Wikipedia, to my astonishment and dismay). The former teaches you how to avoid slipping into pitfalls that are so small you would have to be an angel dancing on the head of a pin to even see. The latter expands your universe and makes you feel like a blessed, ignorant Socrates. I take no position on which way the benefit would swing if reading less august samples from the two schools; it may be that reading merely-good analytical works is more valuable than merely-good historicist ones. Perhaps anything but the best narratives just muddy the waters. Perhaps good analysis fills our cup, while the best narratives grow our cup so it can be more fully filled. UIOGD, as is said.

Monday, March 13, 2006

Entry level hiring and the long tail

If you don't read Legal Theory Blog every day, fie on you. He also runs the Entry Level Hiring stats on law schools. I don't know why, but I always track Yale grads' fortunes. Last year the final numbers were something like
JD Institution
Yale leads with 20, Harvard has 18 and Stanford (10) is close behind. Chicago has 6. Berkeley has 5. Columbia, Michigan, Penn, Georgetown, and Virginia have 4 each. Howard and Texas are next with 3 each.
This year, though it's a bit early, Yale again is slightly in the lead. Note the followers, though (and recall Solum's "Stanford is close behind," at roughly half the numbers of the top two):
Yale-18
Harvard-17
Columbia-8
NYU-7
University of Chicago-7
Duke-3
Georgetown-3
University of Illinois-3
University of Pennsylvania-3
University of Virginia-3
Stanford-2
University of Michigan-2
This shows in one way what a two-horse race the law school experience is. But more generally, there's a very long tail to this distribution: if you look at all the "1"s from other schools, they quickly add up to more than Yale + Harvard. If you want to go into academia, you may need luck if you are at, say, Tulane, but it is not impossible, if you have some skills that made you less interested in the East Coast and smog and more in having beignets at Cafe Du Monde. See this long tail discussion.

Carl Schmitt again: this time on guerilla warfare and Abu Ghraib

There are many who would apply Schmitt's analysis of executive dictatorship to explain Bush's tenure, hoping to tar him by association. I won't mention who, because guilt by association is a pretty cruddy way to run academia, and because actions can frequently be justified by many theories, so that just stating that Bush's executive expansion and preemptive war can be understood partially in a Schmittian way doesn't mean he isn't in fact acting as a promoter of the much-milder "unitary executive" and neo-conservative export of democracy.

But Carl Schmitt (CS) also wrote on guerilla warfare. A recent paper (change the file suffix to .pdf) examines Abu Ghraib and detention of terrorists under Schmitt's theory in The Partisan. Schmitt attacked the universalist pretensions of the Enlightenment; he longed for the clean Westphalian territorially-based nation-state, even if he wanted one particular nation-state to have plenty of Lebensraum. He was thus pleased when guerillas sprung up to fight the partition of the world among the Americans and Soviets. They had no "illusions" like those fostered by the liberal and communist ideologies, but were rather ready to link their beliefs directly with death, showing that the legal is always force and never morality. (I personally doubt the applicability of this Thrasymachus argument: I suspect most guerillas would claim that they are using force in the name of [their] morality, not against it or outside of it. To that extent CS would also say they live under an illusion.) And these guerillas were particularistic, drawn from a single village or tribe, and they believed that the local justifed anything, disavowing the major powers' laws of war. Says Scheuerman, quoting CS:
In its purest form, the partisan is an “autochthonous” entity of agrarian provenance, whose mode of existence and style of warfare exploit his intimate and seemingly instinctive knowledge of his homeland and its geographical idiosyncrasies – its mountains, forests, jungles, or deserts. The partisan represents a “particularly terrestrial type” of active fighter, concerned chiefly with driving an overreaching imperialistic enemy from his home territory; “he is one of the last sentries of earth”.
CS has much to say about the wisdom, or lack thereof, of converting one's enemies from terrorists to guerillas by attacking a nation-state and creating Partizans.

But he also discusses the laws of war and the Geneva Conventions. He is not a fan. He notes the contradiction between the regular legal regulation of the irregular guerilla. CS's state-of-emergency jurisprudence shows up again. If we are to continue living in a Westphalian world, we cannot endorse non-state actors. This is Bush's dilemma. How do we maintain norms in a world of dynamic military situations designed by the enemy to destroy those norms? Bush has pushed for more discretion, including the application of irregular legal regulation (like Guantanamo and Abu Ghraib) even to American citizens captured abroad. With these actions, rather than his mere invasion of Iraq and push for more executive power, Bush has started to put himself beyond the pale of other theories that could provide alternate support without relying on Carl Schmitt. Not to say that merely relying on a Nazi theoretician is bad; but it's important that if you rely on Schmitt you understand what other intellectual baggage you bring along. It may exceed Bush's carry-on limit.

Sunday, March 12, 2006

Googleproof and true smarts

The Guardian discusses the hardest quiz in the world, the King William's College Quiz. It is googleproof, or nearly so: that perhaps is its main virtue these days. Sometimes as knowledge becomes more accessible it becomes less interesting. Who wouldn't want to be the intellectual James-Bond-like character who could answer "Who, in 1904, made a postmortem journey from Badenweiler to the Novodeviche Monastery?" or "Who was the albino Vicar of Altarnum?" without resorting to google? You can't learn these things: you can only live a rich life and pick them up en passant while your real goal is living. Of course, the true value in these things is what you do with them: make connections that draw together life into a web of connected observation and understanding.

Interesting: will googlepopularity one day be the judge of spelling? I typically spell and pronounce the word as "mischievious" on first try. I am told that I am outnumbered 9,118,000 to 315,000 on the web, but my star is rising as I have checked this stat over the years. But en passant only outpolls en passante by a little, despite the clear atrocity of the latter.

"Hide and Seek": Imogen Heap

If you like Frou Frou, and have somehow missed Ms. Heap's solo album "Speak for Yourself," I suggest you rectify that. The song "Hide and Seek" got a bit of airplay because of its otherworldy quality of overlaid vocals and fear for the future. The lyrics are below the fold--click "Read comments." If you can tell me what the lyrics mean, I'll buy you a drink at happy hour. (By the way: the last time I made that joke, the answer was "The Merchant of Venice.")

Where are we?
what the hell is going on?
the dust has only
just begun to fall
Crop circles in the carpet
Sinking feeling

Spin me round again
and rub my eyes
this can't be happening
when busy streets a mess with people
would stop to hold their heads heavy

Hide and seek
Trains and sewing machines
All those years
They were here first

oily marks appear on walls
where pleasure moments hung before
the takeover
the sweeping insensitivity
of this
still life

Hide and seek
trains and sewing machines (you won't catch me around here)
Blood and tears
They were here first

mm what d'cha say?
mm that you only meant well, well of course you did
mm what d'cha say?
mm that it's all for the best, of course it is
mm what d'cha say?
hmmm that it's just what we need, you decided this?
ooh what d'cha say?
mmmm what did she say?

Ransom notes keep falling out your mouth
Mid sweet talk newspaper word cut outs (echo:paper word cut outs)
Speak no feeling no I don't believe you (echo: I don't believe you)
you don't care a bit
you don't care a bit

Ransom notes keep falling out your mouth
Mid sweet talk newspaper word cut outs
Have no feeling no I don't believe you
you don't care a bit
you don't care a bit

Hide and Seek

Oh no, You don't care a bit
Oh no, You don't care a bit
Oh no, You don't care a bit
You don't care a bit
You don't care a bit

Polygamy and Romer

Speaking of polygamy, as below Lefty J does, below the fold is an old exam answer relating to Romer and . It applies the "hybrid right" tool of Employment Div v Smith to marriage, and cooks up a right to polygamy. Not sure if I agree with this; but I was working under a lot of pressure.

It is always welcome to have an opportunity to apply Justice Scalia’s reasoning to Scalia’s opinions. We accept the invitation of Scalia in Employment Div. v. Smith, 494 U.S. 872, to come up with a “hybrid” right involving the Free Exercise clause combined with some other constitutional protection. We can take a look at a couple of Free Exercise cases and what they protect, and we can then see how the hybrid situation affects Scalia’s dissent in Romer v. Evans, especially considering his reliance on the bugbear of polygamy.

Scalia crafts a new test—partially overturning Sherbert—stating that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Smith at 881. If the statute is neutral, it only need serve a valid government purpose.

However, Scalia leaves a loophole to account for various older precedents:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.

Smith at 881.

This exception captures Cantwell v. Connecticut, 310 U.S. at 304-307 (licensing system abridging free speech and free exercise), Murdock v. Pennsylvania, 319 U.S. 105 (tax abridges free speech and free exercise), Pierce v. Society of Sisters, 268 U.S. 510 (right to direct the religious education of one’s children). Indeed, he is not just inventing what he calls the “hybrid situation”:

when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment.

Pierce at 233.

But the hybrid situation also opens up a door for more exceptions—in fact, there doesn’t seem to be a simple, principled place to stop. Every right, it would seem, can be made better with a little dose of Free Exercise.

The interesting thing about this hybrid Smith exception is that is survives City of Boerne, 521 U.S. 507, since, after all, Boerne is dedicated to saving Smith. The hybrid argument also doesn’t have to rely on O’Connor’s strong disagreement with the reasoning in Smith, which, while powerful, is still only a concurrence. Thus we don’t need to claim with O’Connor that

the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community.

Smith at 898.

The hybrid situation, as O’Connor says, is used to distinguish away Cantwell and others. But it does more than just that: using the Pierce formulation, it says that heightened scrutiny is deserved whenever the Free Exercise clause interacts with some other constitutional right. It can’t mean that the hybrid situation only arises when the other right is strong enough to win on its own: this would reduce the Free Exercise clause to a dead letter, tagging on to any winning claims like a ribbon. To have any force, the Free Exercise clause must be enough to push a near-miss over the edge to victory.

How does this doctrine affect Romer v. Evans?

Scalia gleefully notes in his Romer dissent that the majority does not mention Bowers v. Hardwick, 478 U.S. 186, at all. But perhaps sensing that the majority is almost brave enough to overturn this decision outright right now, Scalia hedges his bet against the inevitable decline of Bowers. (Justice Kennedy lowers the bar of animus noticeably, and hints that mere moral disapproval is no longer adequate to justify a statute, a hint that will be fleshed out in Lawrence v. Texas.) Scalia goes farther back into the past, dredging up darker demons. He brings back polygamy. The popular rhetoric against polygamy by both sides of the Colorado Amendment 2 debate perhaps convinced Scalia that he had a sure winner.

Perhaps in a popularity contest he does, but legally the argument for Reynolds v. U.S., 98 U.S. 145, is undercut by his own hybrid doctrine.

To apply the hybrid doctrine to polygamy, we need a religion and a fundamental right. Is marriage a fundamental right? (See Sunstein, The Right to Marry, 26 Cardozo L. Rev. 2081.) Let us not rely on modern substantive due process cases after Griswold. It is more elegant to go back to cases Scalia is more likely to unreservedly support, cases he would stand behind even during his confirmation hearings. (It’s interesting to note that Judge Alito has been criticized for being more solicitous to protecting religious conduct than the more liberal type of rights. This is somewhat misplaced, given that it’s likely that strong religious rights generate and support other rights, as well, and not just through this hybrid situation trick.) One such case is Meyer v. Nebraska, 262 U.S. 390, which had a double-plus-good liberal purpose—protecting parents’ rights and stomping on anti-foreign sentiment—but which also included strong affirmations of the foundational right to marriage. Additional early cases supporting marriage are listed in Zablocki v. Redhail, 434 U.S. 374, and given Scalia’s pro-heterosexual marrriage rhetoric in Romer and other cases, it’s likely he’d agree with at least one of those cases that there is a right to marriage without us having to resort to Loving v. Virginia or other late cases.

So if we have a fundamental right, and we have a member of a religion attempting to freely exercise that right in the context of their religion, what do we come up with? We get Cantwell and Pierce and Yoder. Under the hybrid test, to avoid finding a right to polygamy, we need a neutral law and a compelling government purpose to override the Free Exercise clause. It’s pretty easy to attack both of these prongs.

First, the laws are really only facially neutral, with a strong underlying discriminatory purpose. Recall Kennedy’s positions in Romer and Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520. In the latter, any suspicion that animus is the motivation behind the laws generates a Free Exercise investigation. In the former, a statute which inflicts “immediate, continuing, and real injuries” that outrun any likely benefit is assumed to be due to animosity. Both seem to be deliberately stirring up speculation about government purpose to cast doubt on true neutrality.

But Scalia of course is in dissent in all these cases, and doesn’t like to examine the purpose of a statute. Or does he? Look at the second prong. Consider Scalia’s own words in Grutter on the standards of when state purposes can be compelling enough to legitimate discriminatory laws: “If that is a compelling state interest, everything is.” Michigan asserts a broad goal of education policy, raising children, healing communities. Reynolds says that anti-polygamy statutes are a valid instance of outlawing acts in “violation of social duties or subversive of good order.” If you can get away with Reynolds, you can get away with anything, as Scalia might say. If either prong (neutral law and compelling interest) fails to stick, polygamy goes through, and Scalia’s grand adventure in Romer comes to an end.

There is a broader reason to believe that polygamy statutes are a bad idea. Balkin, in his article The Constitution of Status, 106 Yale L. J. 2313, states that any moral judgment that tends to perpetuate unjust status heirarchies should be suspicious. Moral judgments themselves are the foundation we stand on to challenge injustice; but they are too often enlisted to avoid the gradual redistribution of status that democracy hastens. The majority that uses moral judgments against a minority preserves its own feeling of superiority, avoids physical or moral contact with the inferior, and ensures that pleasant feelings of pity or condescension are not replaced with fear or disgust.

Those who are already demons to society, supporting gay marriage, would do well to avoid demonizing. While it is unlikely that Mormons or other polygamous subcultures will welcome the support of gay rights activists, that is not an excuse to exclude polygamists from the gains of expanding civil rights. Justice Harlan the older certainly did not foresee, or hope for, the eventual equality of Chinese-Americans, yet his eloquent Plessy dissent forced this equality on society as surely as blacks have slowly become integrated. If someone humanizes polygamists by advocating their hybrid right to Free Exercise of their religious marital goals, that, too, will also be a small step for civil rights.

Tiny island in English Channel finally gives up feudalism


Sark, a three-mile wide island off the coast of France, has adopted democracy. NPR has the story. See also the bottom of that page for where I will flee to if I need to seek asylum anywhere: Sealand, a created island whose inhabitant claims he is the king of this sovereign country, and who uses it for secure data storage.

Saturday, March 11, 2006

Kite haters migrate eastwards

What does everyone have against kites? First the Taliban, who we took out for their kite-based discrimination, and now Pakistan. Admittedly, the Pakistanis take their kites a little too seriously, resulting in multiple deaths each year. Washington, DC has a kite festival with kite-fights as well---mildly abrasive objects are spaced along the string, and you try to cut your opponent's line so his kite sails away to infinity and beyond---but we somehow manage to keep the deaths down to a reasonable level, like zero. Perhaps it's because we don't allow the strings to be dipped in corrosive chemicals or to be ribbed with glass shards. Might regulation rather than banning be an intermediate solution here...? Maybe the test of a failed state is whether you can impose a basic administrative requirement on spacing razor blades at least two feet apart on your citizens' kites?

Tuesday, March 07, 2006

Happy Wives, Part Deux

Slate has a very interesting article today on the whole Happy Wives issue. Maybe if you click on the title to this post you will get to it, but I'm technologically inept and giving up on trying to link it right now :)

I agree with the author's assertion that there is so much choice in our current society that it can lead people to constantly question the decisions they make, and think that there are other, better options out there for them. But I also think this argument can be dangerous, and can be used in specifically anti-feminist ways.

For example, I do believe that the skyrocketing divorce rate in this country may be in part due to the fact that people are never satisfied with what they have, and are always looking for something (someone) better, younger, richer etc. Back when divorce was frowned upon, people worked on their marriages and learned to compromise and make the most of what they had. Does that mean we should go back to not having divorce as a socially acceptable option? Were our grandmothers really happier in unequal marriages without the option to work outside the home, than we are with all our options? I don't know if we can really say (what does it even mean to be happy?)

These types of arguments are often used to keep women in abusive relationships (by telling them they have to work harder to make their husbands happy, or have to keep a marriage together for the sake of children, or should just "grin and bear it"). Clearly, as the Tierney article shows, these arguments can also be used to argue for women staying in the home rather than working outside of it.

I do agree that because we have so many options, people tend to have extremely high and specific expectations for their lives, and not meeting those expectations is probably a source of unhappiness for many (especially those "progressive" women the article discusses who are trying to have the perfect career and perfect family in a society that does not offer realistic possibilities for achieving this). But I think we should be careful of taking this argument too far, as it can be used to limit and constrain people, especially those who have less economic, social, and political power in the status quo and would rather not just be happy with what they have, but want (and deserve) a chance to reach for more.

Saturday, March 04, 2006

Pets and a more informed debate

Speaking of more informed debates as Lefty Justin does below, this might be of interest: a little over 21% of Americans think that the 1st Amendment is about guaranteeing a right to keep pets.

This from the new McCormick Tribune Freedom Museum survey. See here for the full, damning, but very funny indictment of our ignorance! Hat tip to the Empirical Legal Studies blog, which also notes regarding the inalienable right to life, liberty and pets:
I am always interested in finding examples of exotic constitutional claims—i.e., "rights talk" data points—and I have see this one in action before. Specifically, it was a constitutional right to own 400-pound Bengal-Siberian tigers (and maybe cougars as well): "I think it's my right as a U.S. citizen to have these cats.... If people say we can't have them, they're messing with my constitutional rights." Alex Tresniowski and Gabrielle Cosgriff, Cat Fanciers: With an Increasing Number of Texans Keeping Tigers as Pets, Some in the State Fear More Maulings and Deaths, People, April 16, 2001, at 111.

Courage: it couldn't come at a worse time (Bernard Williams and the good)

What are goods and values? Probably the most common visceral view right now runs something along the lines of RM Hare's arguments. One might think that values are voluntary projections onto the external world. The universe is neutral: we impose on the world prescriptive language which is so separate from reality, so unconnected, that we can reflect rationally and revise our views of evaluation. We can change our commitments, and a reflective life demands that we do. On this theory, we should train ourselves to imprint good things, and to avoid imprinting bad things.

Another possibility is that our imposition of values on the world is largely involuntary. This would make "the good" something like the color blue. Scientists, if you ask, will tell you a lot about the color blue. The less sophisticated of them will sum up by saying that blue is a "secondary property," which is merely an interaction between one real thing (the see-er) and another real thing (the seen), and has no reality of its own. We could in fact rewrite our description of the world, without using the idea of color, in a more fundamental language: we can offer non-prescriptive accounts of the world which are exactly equivalent to our normative views.

Are these our options? Either impositions which are voluntary (so we can retrain ourselves to impose nicer things) or impositions which are involuntary (so we have something more scientific and reduce-able)?

How would we describe "courage" under these options? This is Bernard Williams's famous question. If we drop the evaluative mood, can we still come up with a description which is functionally equivalent to "courage"? Here's the problem: if I show you ten examples of courage, and don't include any normative hints, can you go on to classify new examples correctly? If courage can be reduced to pure description or to a secondary property, you are likely to succeed. If not, then you will likely fail. (But what then?) This is what Williams is getting at in Ethics and the Limits of Philosophy.

I don't think one can be a "naturalist"--a believer that the good is something we impose on the world, so that only "naturally" material things exist--without a solid answer to this question. If you are a naturalist and cannot respond to this, you do not understand your position.

Wednesday, March 01, 2006

Life Goal #1: To Be A Happy Wife

I'm not adept enough to figure out how to link the text of the article to this blog since it's on Lexis, but I was curious to see what people thought of Tierney's article yesterday on "Happy Wives," especially after last night's Work-Life Panel where most of these issues were discussed.

The article really bothered me and I'm still trying to think through all the issues tied up in it, but a few of my problems with it are:

Tierney seems to be gendering an issue that isn't necessarily about gender as much as it is about division of labor in marriages (which is currently gendered, but doesn't have to be). Last night we discussed how the current workplace is modeled on an "ideal" worker, and this worker was a man who had a stay at home wife to take care of the house and kids. This model clearly doesn't work in today's society (and never worked for much of society that had to have two wage earners to make ends meet). Thus the workplace has to undergo a massive change to accomodate today's worker, who may need more flexibility in order to take care of children, or elderly parents.

With regard to the article, I would argue that the issue isn't that women are happier being housewives, or taking on more housework even if they work outside the home, but that if you have two parents working outside the home all that extra house and child care will stress any marriage, no matter which partner takes it on or how it's divided. I wonder how Tierney's theories hold up in houses with stay at home fathers, or in lesbian and gay households. I would bet that any household that has one stay at home partner generally has less stress on the marriage because there is just less work overall for the two partners to take care of. And given Ellickson's claim that above a certain level increased income doesn't correlate to increased happiness, maybe all marriages would be happier if the partners were only dividing up two jobs (one outside the home and one inside the home) instead of the two outside and one inside that is common today. This could mean both partners working half time, or switching off years of working outside the home and working inside the home, rather than forcing one partner to choose family over career and vice versa.

Another major issue I had was the underlying assumption that somehow what women most want is a happy marriage. I'm sure most people who get married are hoping to have a happy marriage, but the idea that women want to grow up to be happy wives is pretty blatantly sexist. No one would ever write an article about how what makes for happy husbands, because men are always seen as people first, and husbands and fathers second.

I hope that as we go through school and out into the working world we continue to think about these issues, and the extremely limited choices our government and society give us for being both happy spouses/parents and happy workers. It was a wonderful step to push for women to enter the work force, but we still need equal pay for women (to allow a meaningful choice of which parent will stay at home), government sponsored quality child care (for those families where both parents want or have to work), and flexible jobs/careers that allow part-time or part-year work, if we want to "have it all" as the feminists of the 1970s promised. So if we could now push men (especially those who make the laws ) to be as invested in their families as women are getting in their careers, and to find a way to make work accomodate life, we can reach our goals of being happy wives and husbands :)