October 08, 2013
Law, Cultural Consensus, and the Bent Twig Problem
'Tis education forms the common mind, Just as the twig is bent, the tree's inclined.
- Alexander Pope, Epistles to Several Persons 1732
For the past few weeks, the Blog Princess has been pondering the moral legitimacy of laws. Most discussions of this issue begin with bold assertions of how things are (or ought to be). While I would have loved to begin with the answer, I'm having a tough time understanding how one gets to the assertion stage without first asking a few questions.
What does it mean for law to have moral legitimacy?
Should such legitimacy be grounded in shifting cultural consensus or time tested moral principles the current culture may no longer endorse? How does practicality factor into the equation?
Cultures vary widely, but they all recognize law to some extent. Is there some sort of cultural baseline, below which the rule of law cannot establish itself? How does a law come to be viewed as settled? No law is universally accepted, and it's not difficult to think of laws that have been "settled" for decades, yet are still vigorously challenged and debated.
What's the right test for each of these criteria?
Then there's the question of enforcement. What are the acceptable (democratic vs. anti-democratic) ways to challenge a law? What means can governments use to enforce the law?
Finally, is current public morality really the right foundation? A wicked and lawless society will never view any law as legitimate or settled. Neither will a society that views unfettered individual freedom as the chief benefit or goal of civil society. Civilization, by its very nature, absolutely requires both external and internal curbs on individual freedoms and desires. Without the reciprocal willingness of individuals to negotiate a balance between competing individual interests and rights, civilization cannot survive.
Civilization also requires willingness to submit to some higher authority than one's own will. The other day, we stumbled across a discussion about "effective discipline" methods for parents of teens that brought that last point home forcefully. Here's a short summary of the Q and A:
How do I respond appropriately to a 14 year old boy's fresh mouth without overreacting and having things end in an argument?Look for a pattern. Does he need more responsibility and power? Is the sassiness a cry for respect? Know that when we pay attention to the rudeness, we get MORE of it!
My daughter is 11 (will be 12 in Jan). The one thing she does that drives me crazy is not complying when I ask her to do something...How do I communicate with her that she needs to comply the FIRST time I ask without it developing into me having to lose my temper with her.Call a meeting and decide what needs to be done. Allow your daughter to decide when and how it will be done, and make her accountable.
Everyone signs the contract, and she can decide the consequence of not having it done...Avoid the "It needs to get done NOW" fights. It hurts everyone.
What do you do with a young teen when threats, or consequences, don't work?...you need to rebuild your relationship. Let go of the rules and the threats and all that.
Find a way back into his life. You have to aggressively love him, collect him, rejoin him. A teen will take the bullet before he takes the knee, so you have to be the loving force. Start spending time with him that shows you LOVE him and that he is THE MOST IMPORTANT PERSON TO YOU. Laugh. Have joy. HUG HUG, SMILE SMILE SMILE.
With your kids, what are the most effective consequences?My best consequences are NONE. Meaning, I do the best when I use proactive measures to create cooperation, love, and compassion.
Consequences are ususally [sic] code for PUNISHMENT, and that creates separation and anger.
Whenever possible, I use Special Time, Family Meetings, Family Meals, SNUGGLING, long walks, listening, HUGGING HUGGING HUGGING, and note-writing to find a way into my child's heart.
When we finished
PUNCH PUNCH PUNCHING THE DRYWALL HUG HUG HUGGING our inner child and telling it that IT IS THE MOST IMPORTANT THING IN THE UNIVERSE, we found ourselves imagining how her techniques would play out in the workplace:
BOSS: "Last week I tasked you with preparing the firm's quarterly tax return. I told you to submit it to me for review by Friday to allow time for possible revisions to be completed before the quarterly filing deadline this Wednesday."
"Friday has come and gone, and the report is not on my desk. Now it's Monday, and there are only two days left to review and file the report. Where are you on this?"
EMPLOYEE: "I didn't feel like working on this last week. And frankly, this week isn't looking good either - I'm just not in the mood."
EMPLOYER: [HUG HUG HUG SMILE SMILE SMILE!!!] "Uh oh! I can see that my failure to proactively create feelings of love, cooperation, and compassion is causing problems AGAIN! Let's call a meeting, and you can decide when and how the tax return will be completed and what the consequences will be if your goals are not met."
Whatever you decide, I want you to know that you are still THE MOST IMPORTANT PERSON TO ME! More important than the IRS. More important than avoiding late filing fines or legal sanctions that could destroy the business I've built and cause me to fire you! More important than.... well, pretty much ANYTHING! [SNUGGLE SNUGGLE, SMILE SMILE!!!]
As a young parent of two sons, there was absolutely no question in my mind that my primary task as a mother was to train my sons to live in the world as it is, not as I wanted it to be. And the real world is full of consequences - often harsh ones like being fired or going bankrupt - for breaking rules none of us has much control over. The best case scenario for thumbing our nose at the rules is that we don't get caught. The worst case scenario can be imprisonment or even death.
There was also absolutely no question in my mind about who was going to be in charge in our household (and the answer didn't involve holding meetings or signing contracts).
I can still remember the first car pool we formed to ferry my oldest boy and other neighborhood children to school. My neighbor, who had three children, almost invariably got into a tussle with whichever one of her three kids had decided that day that he or she didn't want to go to school, or that he was feeling sad, or sick or... whatever.
It drove me insane. Going to school wasn't a decision when I was growing up, and it wasn't something I negotiated with my sons. I told them to do it, and they did it.
That's pretty much how the outside world works - no one wants to enter protracted negotiations every time their current inclinations conflict with what needs to be done in a particular situation. I always thought that the central idea behind the socialization of children was instilling in them the notion that they aren't the center of the universe. Rather, they live in a world where literally every other person they encounter has his or her own desires and opinions and goals - all of which have to be balanced. We are each part of several overlapping groups: family, neighborhood, class, school, community, country. Each group has its own tasks and goals, and every group membership confers benefits to and levies costs upon the individual.
What this woman is teaching her children is a form of tribalism, in which only the [weak and force-fed] bonds of affection between family members can induce individuals to show respect to others, do what they're told to do ... now, or restrain themselves. There is no real authority - no one with the acknowledged right to direct the actions of others.
So here's the question: if we can't dismiss the way this woman's raising her children as some kind of outlier, and there's virtually no overlap between her view of how the world should work and how the world actually does work, what is the basis for the legitimacy of laws (which are, in the end, only another set of rules)?
August 05, 2013
...is justice denied. Or so we've been told:
Twenty-five years after accusing an innocent man of rape, Tawana Brawley is finally paying for her lies.
Last week, 10 checks totaling $3,764.61 were delivered to ex-prosecutor Steven Pagones — the first payments Brawley has made since a court determined in 1998 that she defamed him with her vicious hoax.
A Virginia court this year ordered the money garnisheed from six months of Brawley’s wages as a nurse there.
She still owes Pagones $431,000 in damages. And she remains defiantly unapologetic.
“It’s a long time coming,” said Pagones, 52, who to this day is more interested in extracting a confession from Brawley than cash.
“Every week, she’ll think of me,” he told The Post. “And every week, she can think about how she has a way out — she can simply tell the truth.”
Brawley’s advisers in the infamous race-baiting case — the Rev. Al Sharpton, and attorneys C. Vernon Mason and Alton Maddox — have already paid, or are paying, their defamation debt. But Brawley, 41, had eluded punishment.
She’s now forced to pay Pagones $627 each month, possibly for the rest of her life. Under Virginia law, she can appeal the wage garnishment every six months.
Good on Pagones for keeping after her.
July 22, 2013
Did Sen. Obama Co-Sponsor An Illinois Stand Your Ground Law?
Did Barack Obama really co-sponsor legislation that strengthened Illinois' Stand Your Ground defense (you know, that racist law that encourages people to kill each other for no apparent reason?)
Why yes -- yes, he did!
This past week President Obama publicly urged the reexamination of state self-defense laws (see remarks below). However, nine years ago then-State Sen. Barack Obama actually co-sponsored a bill that strengthened Illinois' 1961 "stand your ground" law.
The Obama-sponsored bill (SB 2386) enlarged the state's 1961 law by shielding the person who was attacked from being sued in civil court by perpetrators or their estates when a "stand your ground" defense is used in protecting his or her person, dwelling or other property.
The bill unanimously passed the Democrat-controlled Illinois Senate on March 25, 2004 with only one comment, and passed the Democrat-controlled Illinois House in May 2004 with only two votes in opposition. Then-Governor Rod Blagojevich (D) signed it into law.
Now may be the time for a little trip in the Wayback Machine:
When asked about his legislative record, Obama rattles off several bills he sponsored as an Illinois lawmaker.
He expanded children's health insurance; made the state Earned Income Tax Credit refundable for low-income families; required public bodies to tape closed-door meetings to make government more transparent; and required police to videotape interrogations of homicide suspects.
And the list goes on.
It's a lengthy record filled with core liberal issues. But what's interesting, and almost never discussed, is that he built his entire legislative record in Illinois in a single year.
Republicans controlled the Illinois General Assembly for six years of Obama's seven-year tenure. Each session, Obama backed legislation that went nowhere; bill after bill died in committee. During those six years, Obama, too, would have had difficulty naming any legislative achievements.
Then, in 2002, dissatisfaction with President Bush and Republicans on the national and local levels led to a Democratic sweep of nearly every lever of Illinois state government. For the first time in 26 years, Illinois Democrats controlled the governor's office as well as both legislative chambers.
The white, race-baiting, hard-right Republican Illinois Senate Majority Leader James "Pate" Philip was replaced by Emil Jones Jr., a gravel-voiced, dark-skinned African-American known for chain-smoking cigarettes on the Senate floor.
Jones had served in the Illinois Legislature for three decades. He represented a district on the Chicago South Side not far from Obama's. He became Obama's kingmaker.
Several months before Obama announced his U.S. Senate bid, Jones called his old friend Cliff Kelley, a former Chicago alderman who now hosts the city's most popular black call-in radio program.
I called Kelley last week and he recollected the private conversation as follows:
"He said, 'Cliff, I'm gonna make me a U.S. Senator.'"
"Oh, you are? Who might that be?"
Jones appointed Obama sponsor of virtually every high-profile piece of legislation, angering many rank-and-file state legislators who had more seniority than Obama and had spent years championing the bills.
"I took all the beatings and insults and endured all the racist comments over the years from nasty Republican committee chairmen," State Senator Rickey Hendon, the original sponsor of landmark racial profiling and videotaped confession legislation yanked away by Jones and given to Obama, complained to me at the time. "Barack didn't have to endure any of it, yet, in the end, he got all the credit.
"I don't consider it bill jacking," Hendon told me. "But no one wants to carry the ball 99 yards all the way to the one-yard line, and then give it to the halfback who gets all the credit and the stats in the record book."During his seventh and final year in the state Senate, Obama's stats soared. He sponsored a whopping 26 bills passed into law — including many he now cites in his presidential campaign when attacked as inexperienced.
It was a stunning achievement that started him on the path of national politics — and he couldn't have done it without Jones.
We hear he's evolved, since then.
July 15, 2013
I think it's terrible that George Zimmerman shot Trayvon Martin. That's a tragedy. I don't think he had to shoot him, and had one or two things been different (he didn't get out of his car, didn't have a gun, on and on), we wouldn't be here. I keep hearing Trayvon Martin would have killed George Zimmerman, I don't think so, but I wasn't there.
You weren't there either. You don't know what happened, exactly. As much as you want to believe you were there and know what happened, exactly, you weren't, and you don't.
Not knowing exactly what happened requires a not guilty verdict, no matter how angry or outraged you are. The jury didn't free Zimmerman because they thought he was a good guy or because they weren't sad that a young boy was killed (jurors were rumored to be crying during the state's rebuttal), they found him not guilty because the facts and the law required them to do so.
Much to our sorrow, the Editorial Staff will probably add to the montage of monumentally stupid things being said about the verdict later. But this was just too good to pass on.
June 20, 2013
Favorite line: "Jake swears this was his actual cost. Looking at his website, I believe him."
May 21, 2013
Does Empathy Lead to Injustice and Discrimination?
During his first term, Obama talked a lot about the value of judicial empathy, and of empathy in general:
In 2008, Karina Encarnacion, an eight year-old girl from Missouri, wrote to President-elect Barack Obama with some advice about what kind of dog he should get for his daughters. She also suggested that he enforce recycling and ban unnecessary wars. Obama wrote to thank her, and offered some advice of his own: “If you don’t already know what it means, I want you to look up the word ‘empathy’ in the dictionary. I believe we don’t have enough empathy in our world today, and it is up to your generation to change that.”
This wasn’t the first time Obama had spoken up for empathy. Two years earlier, in a commencement address at Xavier University, he discussed the importance of being able “to see the world through the eyes of those who are different from us—the child who’s hungry, the steelworker who’s been laid off, the family who lost the entire life they built together when the storm came to town.” He went on, “When you think like this—when you choose to broaden your ambit of concern and empathize with the plight of others, whether they are close friends or distant strangers—it becomes harder not to act, harder not to help.”
Is this really true, though? The connection between empathy, sympathy (fellow feeling), and willingness to help others doesn't actually work the way the President claims it does. Empathy, it turns out, is not broad based at all, but narrow and specific. People are more willing to help individuals than groups:
The key to engaging empathy is what has been called “the identifiable victim effect.” As the economist Thomas Schelling, writing forty-five years ago, mordantly observed, “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a tear or reach for their checkbooks.”
You can see the effect in the lab. The psychologists Tehila Kogut and Ilana Ritov asked some subjects how much money they would give to help develop a drug that would save the life of one child, and asked others how much they would give to save eight children. The answers were about the same. But when Kogut and Ritov told a third group a child’s name and age, and showed her picture, the donations shot up—now there were far more to the one than to the eight.
The number of victims hardly matters—there is little psychological difference between hearing about the suffering of five thousand and that of five hundred thousand. Imagine reading that two thousand people just died in an earthquake in a remote country, and then discovering that the actual number of deaths was twenty thousand. Do you now feel ten times worse? To the extent that we can recognize the numbers as significant, it’s because of reason, not empathy.
In the broader context of humanitarianism, as critics like Linda Polman have pointed out, the empathetic reflex can lead us astray. When the perpetrators of violence profit from aid—as in the “taxes” that warlords often demand from international relief agencies—they are actually given an incentive to commit further atrocities. It is similar to the practice of some parents in India who mutilate their children at birth in order to make them more effective beggars. The children’s debilities tug at our hearts, but a more dispassionate analysis of the situation is necessary if we are going to do anything meaningful to prevent them.
This is why politicians seek to personalize public policy proposals; we get the Lily Ledbetter Act, or Megan's Law rather than the Equal Pay for Women Act or the Sex Offender Registry Act. The deliberate invocation of a highly personalized narrative effectively short circuits critical inquiry and skepticism. What do you mean, you aren't sure an official list of registered sex offenders is a good idea? Don't you want to prevent what happened to little Megan from EVER HAPPENING AGAIN?
The Editorial Staff couldn't help thinking of this thoughtful critique of judicial empathy:
An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.
This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”
Or as the old saying goes, justice is - or ought to be - blind. For a guy who keeps saying that America should be a place where everyone plays by the same set of rules, a jurisprudence that allows easily manipulated emotions to place a thumb on the scales of justice - whose goal is more sympathy than justice - seems an odd prescription.
June 29, 2012
I Would Kill to Have Written This
This is, hands down, the most thorough, insightful, and informative analysis of yesterday's SCOTUS decision on the individual mandate I've seen.
I agree with every single word of it. Particularly this part:
In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties. Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.
March 30, 2012
The Rape Discount
Don't know how many of you have been following this story, but it's a stunner:
A woman who was sexually assaulted by her husband and then ordered by the court to pay alimony and legal fees to her ex -- once he is released from prison, may get relief from California lawmakers.
Crystal Harris, 39, told the judicial committee of the Calif. State Assembly Wednesday that the judgment, which was handed down in 2010, "amounted to making a rape victim write a check to her own rapist every month."
She described to lawmakers how her husband would choke her and sexually assault her while the couple's two children were upstairs. One of the attacks was caught on tape.
... Crystal Harris, who earns between $110,000 and $120,000 a year as a financial analyst, said she had been supporting her husband, who worked as a car salesman, ever since their first son was born in 2002.
Under normal circumstances, Crystal Harris would have been required to pay $3,000 a month in spousal support after the divorce, but because of the domestic violence she endured, the judge said he would lower that amount to $1,000.
"I call that the rape discount," Harris said. She was also ordered to pay her now ex-husband's $47,000 legal bill. Even if the new law passes in the legislature, Harris will still be on the hook for her husband's legal fees.
She tried appealing the judge's ruling last year, pointing out that her ex-husband will have no expenses while he's in jail.
The judge agreed, but pointed out that California law entitles Shawn Harris to alimony.
It's more typical to hear men complain about alimony, and when they do, they usually characterize it as unfair to men because more men pay alimony than women. But alimony laws in most states are gender neutral - the higher earning spouse has to pay alimony to the lower paying spouse regardless of whether the payer is male or female.
The original purpose of alimony was to compensate non-working spouses (almost always female) for the economic value of their contributions to the marriage. A secondary purpose was to recognize that spouses who stay home are less competitive in the job market - and thus less able to support themselves - than they would have been, had they focused on their careers.
Being a mostly stay at home wife and mother for nearly two decades while our children were growing up, that makes perfect sense to me.
The argument that alimony discriminates against men because men are disproportionately affected by it amounts to a disparate impact argument:
Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.
Questions for the ages: if more men have traditionally paid alimony because women were more likely to stay home with the children and men were more likely to be the high earners even if the wife worked, is this really discrimination against men based on their sex?
Or is it simply the law's attempt to address problems better worked out between the parties?
Do you think alimony should be eliminated? Can you see any unintended adverse consequences?
Finally, what kind of jackwagon refers to this kind of ruling as a rape discount? Note: In the comments Dan pointed out that it was Ms. Harris herself who calls this a rape discount. Thanks so much for alerting me to my mistake!