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Abortion, Choice, and Communitarianism

[ 0 ] February 23, 2007 |

Russell Arben Fox has a thoughtful post, expressing his ambivalences about abortion, which you should read. Obviously, much of my disagreement is on well-trodden ground: I don’t think that a woman’s reproductive freedom can be legitimately abridged to further a vague sense that traditional (and generally patriarchal) sexual morality is preferable, I’m happy to be candid that an increase in sexual freedom is a feature not a bug, etc. As even casual readers will know, I also think it couldn’t be more wrong to claim that reproductive freedom is about rights for the middle class. The affluent will always have access to contraception and safe abortions, under any legal regime (including when abortion is formally illegal in most circumstances.) It’s the centrists on abortion, not pro-choice “extremists,” who abstract abortion discourse from social inequities. Whether the decision was framed as a “negative” right or not, Roe matters far more to poor women than the middle class. Things brings us to what I think the the fundamental error in Russell’s analysis:

But at least, in trying, I’m engaged in a genuine social project–whereas the rhetoric of rights and choice is mostly non- or even anti-social. Not that that hurts it as a movement in contemporary, non-participatory, my-your-own-business America; anything but, in fact. Still, it’s a point for liberal defenders of abortion rights to keep in mind, next time they wonder why so few people from the office or the grad seminar show up to walk the picket line with the janitors.

This is very similar to the William Saletan argument that abortion rights advocates won the battle but lost the war, because the rhetoric of choice helps conservatives more. I think this is completely wrong on several levels. First of all, it gets cause and effect backward: reproductive freedom is often framed in terms of rights because it’s effective, not vice versa. Radical feminist critiques of Roe sometimes make a similar error: the choice was not between Roe and a Canadian-style regime of unregulated state-funded abortions; the choice was Roe or nothing. It’s a fantasy to think that abortion would be more accessible if not for the Supreme Court’s intervention, and I also think it’s a fantasy to think that there would be more labor solidarity in the United States if only states could use their coercive power to stop (poor) women from getting abortions, or if women were less aggressive about making rights claims. By looking at other liberal democracies, we can notice that having greater access to abortion than in the United States doesn’t seem to prevent many countries from having robust welfare states, strong labor movements, etc., which further suggests that Russell is getting the cause-and-effect backward. (Moreover, pace Mary Ann Glendon–who focuses too much on law on the books and not enough on actual practices–abortion discourse in Germany is saturated with discussion of rights.)

Relatedly, I think there’s also false a claim that rights upholding individual choice are “non” or “anti-social.” A woman’s right to choose does involve individual claims against a particular vision of the social (patriarchy, class and gender double standards, assumptions that the biological capacity for childrearing should be central to a woman’s experience, etc.), just as the civil rights movement was opposed to the deeply embedded social mores of Jim Crow. But the right to choose is also part of a social vision of its own, one that assume that a woman’s equality, dignity, and security of person are better for men, women, and society as a whole. (It’s not feminists, after all, who oppose the welfare state, and nor does the communitarian, religion-drenched rhetoric that is so pervasive below the Mason-Dixon line seem to lead to more unionization.) Moreover, even if one assumes that most people are happier and children better off in committed, monogomous relationships and society should encourage this, it is (to put it mildly) unclear that increasing the number of unwanted–or, at least, unplanned–pregnancies will increase family stability. (Consider LizardBreath’s post about Roe–I think that the individual/community split is a false dichotomy. Her exercise of abortion rights was in her interest, and also in the long-term interests of her committed relationship and eventual loving family.) I have to respectfully reject the claim that abortion rights-claiming is fundamentally anti-social.

Crazy Canucks Invade Beltway Journalism

[ 0 ] February 23, 2007 |

Hmm, Can West has taken over the New Republic–but, alas, Marty Peretz is keeping his stake. Apparently they’ll be moving to a bi-weekly, twice-the-length format (if this means more space for the book review, frankly it could be an improvement.) Amusingly, Kit Seelye’s article takes at face value claims that the decline in circulation was largely due to voluntary “culling” while not mentioning, say, its full-throated endorsement of a disastrous and unpopular war (especially among its target audience), its endorsement of Joe Liberman’s walking-punchline primary run, etc.

Meanwhile, J-Pod sez:

I can’t think of a publication that has ever altered its publication schedule in this way that has benefited from the change.

Um, didn’t the National Review start as a weekly? Its founder seemed to think so:

The launching of a conservative weekly journal of opinion in a country widely assumed to be a bastion of conservatism at first glance looks like a work of supererogation, rather like publishing a royalist weekly within the walls of Buckingham Palace.

Of course, I suppose you could say he still has a point…

UPDATE: The article I read in the print edition today does discuss the Lieberman endorsement and the war. I’m 99% sure that this was not in the version of the article I read, but if so obviously I retract that criticism.

Academic Freedom and Political Blogging

[ 1 ] February 23, 2007 |

Obviously, I agree entirely with the substance of Paul Campos’s reply to Glenn Reynolds’s attempts to defend illegal and counterproductive assassinations. Since it came up in comments too, I should perhaps further address the question of academic freedom that Campos brings up:

A final note: My column suggested that, given the support of people like Reynolds and Hugh Hewitt for disciplinary action against Ward Churchill, it wouldn’t be untoward to inquire if the University of Tennessee’s employment policies require unlimited toleration of, for example, a law professor who uses lies to justify murder. Again, this isn’t a rhetorical question: it genuinely interests me. Obviously, academic freedom isn’t unlimited. No one, I presume, would defend a professor’s “right” to, for instance, verbally abuse students with racial slurs, or to appropriate the work of others without proper citation, and so forth. And I certainly respect the views of people like Glenn Greenwald and Scott Lemieux, who if I understand them correctly go very far toward arguing that no expression of opinion per se should ever be a basis for the sanctioning of an academic.

This basically gets my position right; no rights are absolute, but I’m a near-absolutist on such questions. (I’m speaking here about what people say in their personal lives–obviously, academic freedom is not compromised if someone is fired for professional misconduct such as plagiarism or attacking students personally):

  • The biggest problem here is: who decides which political comments are beyond the pale? There are, after all, scholars who could sincerely argue that because I’ve argued that Roe v. Wade was correctly decided I’m an advocate of lawlessness and murder. Before one advocates consequences for political statements, remember that it’s not just your standards but David Horowitz’s that will determine whether people can keep their jobs. This is a cycle where nobody wins.
  • Even if we could come up with a principled way of determining that Reynolds’s comments were uniquely problematic and wouldn’t affect others, I still wouldn’t support any professional consequences. Indeed, for me this goes beyond academia and applies to anybody. People who remember my writings about the “Ivan Tribble” controversy will know I’m something of a crank about this, but people should be evaluated for jobs based on their ability to do the job, full stop. Even when employers are within their legal rights–which outside tenured academia is most of the time–people who use hiring and firing authority to indulge political, personal or cultural grievances are engaging in appalling (and, to the extent that they’re responsible to other stakeholders, grossly irresponsible) behavior. I suppose I’m an old-fashioned Millian, but I believe there are enough social pressures to conform and cower to authority, and employers have far too much power over employees’ private lives. That may be unavoidable, but I’m not going to contribute to it. Reynolds–barring some extreme misbehavior that would go well beyond a reactionary and poorly reasoned blog post–should be evaluated based on his teaching, research, and professional behavior, period. And this applies to everyone as far as I’m concerned.
  • Finally, I don’t know about Hewitt but if I understand correctly Reynolds–at least nominally–didn’t call on Churchill to be fired for his 9/11 comments. He may have called for him to be fired for his professional misconduct, but that’s different. Admittedly, it’s a complex issue because the legitimate questions about Churchill were the fruits of a wholly illegitimate political witch hunt, but I still don’t think it’s strictly accurate to call Reynolds a hypocrite on this unless he wrote something I couldn’t find in a quick search. But even if he did, I don’t think it matters. It’s very tempting to say turnabout is fair play, given Reynolds’s constant reliance on the tu quoque (or, at least, attempted reliance: as with the current case, one generally finds under cursory inspection that his tus fail to even quoque) but even if Reynolds called on Churchill to be fired or investigated for his political views it means he was wrong, not that he should also be subject to unjust treatment.

Compared To What?

[ 0 ] February 22, 2007 |

In comments to this post, I’m afraid that regular commenter Anderson has fallen for the old conservertarian bait-and-switch:

Yeah, quite frankly, I think punitives are a terrible idea in general — they take what should be a policy issue & make it a judicial one. And it makes no sense for the plaintiff to collect the punitives, except of course for the unspoken assumption of a 40% or more contingency fee.

It’s not, exactly, that I disagree with him. The punitive damage system does lead to arbitrary windfalls to individuals to provide broader incentives, and on balance I would prefer the European regulatory model to the American system, which relies more heavily on torts to constrain injurious corporate behavior (although obviously the more bureaucratic model also comes with costs.) But I don’t see how any of this is relevant to the question of whether the due process clause should be read as limiting punitive damages:

  • Arbitrarily limiting damage awards based on how many of his fingers Tony Kennedy decides to count on a given day doesn’t solve the windfall problem; it just reduces the disincentives for bad behavior.
  • It’s not as if Roberts, Alito and Kennedy are voting to limit damage awards to that the U.S. can move closer to the European system of regulating corporations. As soon as regulations to replace a less effective tort system are proposed, Republicans will immediately start talking about how the genius of the American legal system means we don’t need more regulations.
  • Most importantly, when construing whether the due process clause limits punitive damages, surely we must consider the issue in the context of the American state as it actually exists, not some pony state we would actually prefer instead. Whether it’s optimal or not, punitive damages are a major method for constraining behavior that is ccontrary to the public interest in the American system. If legislatures want to limit punitive damages–whether to move to a more bureaucratic model of (much more likely) to make it easier for corporate donors to injure people without consequences–that’s their privilege. But I don’t see any basis for using a (to put it mildly) highly contestable reading of the Constitution to limit damages in the hope that a better system might spring up in its place.

The BMW v. Gore line of cases should be overruled, and the latest (to borrow Stevens’s phrase) adventure in doctrinal wonderland just makes the rules more confusing for no good reason.

All Your Uterus Are Not Belong To South Dakota (Yet)

[ 0 ] February 22, 2007 |

Good news from the Great Faces, Great Places state:

An abortion ban with exceptions for rape, incest and health of the mother was rejected Wednesday morning by legislative committee in Pierre.

The Senate State Affairs Committee just voted 8 to 1 to kill HB1293 without a vote of the full Senate.

Supporters of the bill can still force the bill out of committee with a one-third vote of the full Senate, but even key supporters of last year’s ban spoke against the measure.

Given that the law would have been unenforceable, the biggest winner here is the South Dakota taxpayer–who won’t be footing the bill for a frivolous lawsuit by the forced pregnancy lobby–but it’s nice to see all around.

Fred Hiatt: Not the Median Democratic Primary Voter

[ 0 ] February 22, 2007 |

In addition to being bad on the merits, what puzzles me about Tom Vilsack’s decision to end his campaign yesterday is what makes him think it would work. I’ll admit that I’m no political consultant; I don’t have a strong idea of what would appeal to Middle America (TM) except to say that you probably want to analyze how I express ideas and do the precise opposite. But I do understand at least one thing: running to the right on an extremely popular entitlement program in a Democratic primary is remarkably stupid. Just ask Joe Lieberman.

How About We Keep Aesthetic Stalinists Out Of Movie Screenings First?

[ 0 ] February 21, 2007 |

Shorter Michael Medved: The sheer terror of potentially working with somebody who might find you sexually attractive totally justifies hating fags. And might I add, no fat chicks?

This whole line of reasoning–famous for justifying the exclusion of gay people and women from countless workplaces well beyond the NBA–has always been so silly. Really, by the time they become adults, most people understand 1)that they may come into professional contact with people who have sexual interests in you that you don’t reciprocate, and 2)you can’t necessarily have sex with everyone you’re attracted to. People who fail to understand these basic underpinnings of civilization need to grow up before they start using their hatreds and immaturities to justify exclusionary policies; the world really can’t operate around you.

Sure It’s Illegal *Now,* But…

[ 14 ] February 21, 2007 |

Glenn Reynolds uses some somewhat prose-like stylings (“beclowned“?) to defend his crackpot assassination scheme. Alas, he doen’t explicitly defend his farcical claim that the U.S and Iran have been at war since 1979, although his analogies and tu quoques implicitly depend on such an assumption. I did enjoy this part:

Nor would such action be illegal. Assassination is forbidden by executive order. Nothing prevents the president from rescinding that order, or amending it.

Heh. Indeed. Similarly, kidnapping someone and taking them across state lines isn’t really illegal, since nothing could prevent Congress from repealing the law if they wanted to!

Anyway, what’s more striking and important is that whether or not such a plan would be legal, Reynolds has yet to offer any substantive argument for why it would work. Could anyone be dumb enough to think that the American assassination of Iranian clerics, scientists and/or political leaders would help liberal forces in Iran? That killing a couple scientists would make Iran less determined to acquire nuclear weapons? That these kinds of covert ops are remotely viable? The whole thing is nuttier than a Planters factory, and Reynolds can’t even be bothered to begin an argument on the merits. This should be irrelevant to his job, of course, but that anybody takes anything he writes about foreign policy seriously is remarkable.

Boumediene v. Bush

[ 0 ] February 21, 2007 |

The more important holding issuing from the federal court system today, of course, was the 2-1 ruling by the D.C. circuit rejecting the habeas petitions of prisoners being held without charges at Gitmo. I haven’t had a chance to read it yet; the TD, Hilzoy, and Marty Lederman have commentary. Lederman suggests that it will be a close case at the Supreme Court: his prediction is that the Court (which essentially comes down to Kennedy in this case) will reject claims that Gitmo isn’t sovereign U.S. territory, but whether habeas has been stripped and whether review by the D.C. Circuit is adequate will be touch-and-go. I can’t say I have much faith in Kennedy, but you never know.

Scheduling, Trades, And Other Observations Of Interest To At Least 1% of the LGM Readership

[ 0 ] February 20, 2007 |

Since Brad has requested more hockey blogging, having just watched the Flames play their third consecutive game against the Avalanche seems a good time to mention how much I hate the schedule and wish that they had changed it this year. Aside from Crosby only appearing every three years in non-conference cities etc., the NHL seems to have the strange idea that rivalries are created by quantity, which I think is quite wrongheaded. The sheer number of games against divisional rivals makes each one less, not more, compelling.

Another interesting thing is that although Brad is a Canucks fan he didn’t like the Luogno trade. As someone who hates the Canucks, I wish he was right but think he’s crazy. The only goaltenders I would definitely rather have are Brodeur and Kiprusoff; you never know until he gets a playoff run, but I think he’s truly an elite goaltender, and to get him for lower-tier goaltender and the rapidly decaying corpse of Todd Bertuzzi is an incredible trade. (I’m also grateful to the Panthers for generously donating Kristian Huselius to our cause; what a pathetic operation they’re running down there.) The Canucks are a much different team that they were 3 years ago, and one I think is much better suited to winning in the playoffs: ace goaltender, strong and underrated defense, smart forwards. If Naslund snaps out of it, they would really scare me in the playoffs. The Flames, meanwhile, now have their best team on paper since they were the league’s pre-eminent franchise under Bush I, but the actual performance of the team has been pretty spotty. (The team defense, in particular, is a lot shakier under Playfair.) They should be a top contender, but with Nashville having added Forsberg…I’m not sure.

Speaking of trades, the even more important one was Pronger. As my hockey correspondents know, Game 7 or no Game 7 I thought Edmonton was an obvious ringer before the season; losing a defenseman of that calibre is a huge, huge loss, and their run obscured the fact that they barely made it last year with Pronger–I think you can send the flowers. And while it’s not entirely Lowe’s fault–you can rarely get close to full value when a star demands a trade, and while Lupul was being oversold nobody could have foreseen how awful he’d be–it still seems to me that when you trade a great player 1)within the conference, and 2)to the team that has the other candidate for best defenseman in the league, you really need to do better than that.

I also have to say (although the World’s Most Dangerous Professor will be outraged) that I’d like to see the Isles make the playoffs for Nolan, whose blacklisting was a disgrace. It’s an interesting struggle between an exceptional coach and an organization that thinks it’s a good idea to promote your backup golatender to GM. I doubt they’ll make it, but if they could sneak in ahead of the *(^% Leafs it would be pretty sweet.

Phillip Morris v. Williams

[ 2 ] February 20, 2007 |

The decision in the Phillip Morris case came down today, with the Court vacating the award of damages in a 5-4 decision. I’m extremely skeptical of this whole project of finding limits to punitive damages in the due process clause, although today’s case adds a new twist. The Court overruled the Oregon courts not because the damage award was excessive but because the award was based in part on injuries suffered by individuals who were not party to the suit. This strikes me as, if anything, even more problematic than the previous cases (and this is also where Stevens, who supported the previous cases, gets off the bus.) There’s no compelling logical reason why when dealing with punitive (as opposed to compensatory) damages the scope of the consequences of injurious actions can’t be taken into account, and I didn’t find Breyer’s opinion terribly illuminating (although I was amused by his claim that “to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation.” If the lack of standards is a problem, I would suggest we start by overruling cases that limit punitive damages based on what shocks Breyer’s conscience or on the number of fingers on Anthony Kennedy’s hands.) According to Jay Fienman, however, ruling on these grounds makes the consequences of the opinion unclear.

The other important aspect to this case is that–as I predicted–Alito and Roberts broke with Scalia and Thomas and voted to throw out the damages. Ann Althouse–of course!–implies that this is evidence of Alito’s fabled centrism, but this gets things exactly wrong. Precisely because they’re sometimes constrained by larger theoretical concerns, Thomas and Scalia will sometimes won’t go along with the tendency of conservative justices to favor business interests, whereas Roberts and Alito will have no such restraints. Today’s cases are evidence that Roberts and Alito are likely to cast more reliably conservative votes than Scalia and Thomas, not the reverse. If Alito’s adoption of this broad due process claim was (as it is for Souter, Breyer, and Kennedy) accompanied by a belief that the due process clause provides substantial protections to reproductive freedom as well as the ability of corporations not to pay more damages than the Court thinks appropriate when they harm people, it would be evidence of “centrism,” but it’s abundantly clear that this isn’t the case. Alito will, from the perspective of people with liberal constitutional values, be worse than Scalia.

We Have Always Been At War With…

[ 0 ] February 20, 2007 |

Shorter Verbatim Glenn Reynolds: “He hurts his credibility up front by saying that Iran is not at war with us — when, in fact, it has been since 1979.”

As Blue Texan asks, when does Reynolds start agitating for some Reagan administration officials–some his Pajamas Media colleagues–to be tried for high treason for selling weapons to a country we are at war with?

Anyway, as BT says make sure to check out Paul Campos’s decimation of Reynolds’s dishonest advocacy of war crimes.

…I should say, lest I be seen as endorsing everything in Campos’s column, that I also agree with Glenn Greenwald about this:

I would strongly oppose any efforts to have Reynolds academically sanctioned or punished in any way for the views he has expressed, as toxic and destructive as I find both those views and him. And the idea that there could be any criminal liability arising from such comments is absurd, and itself somewhat toxic.

Academic freedom does apply equally to tenured radicals left and right, and certainly Reynolds’s employment should never be at issue because of something he writes on his blog.

…UPDATE: Terry had this three years ago. (via AL, who has more.)

…Mona has more on the academic freedom issue.