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Category: General

The Canadian Cosby

[ 18 ] November 26, 2014 |

Charged with four counts of sexual assault.

Ghomsehi’s behavior after getting fired — and, for that matter, during the process of getting fired — reminds me of an early episode of Law & Order.  Olivet is sexually assaulted by her gynecologist.  The jury finds her molester guilty but the verdict is thrown out by the judge.  In response, Stone makes sure the local networks are informed that the supremely arrogant and creepy doctor will be giving a speech after his acquittal.  The next day, multiple women filed complaints against him.  Real life isn’t that neat, of course.  But I have to think that Ghomeshi’s self-righteous Facebook post and less-than-frivolous lawsuit had the opposite of their intended effect and encouraged some women to come forward.

Immigration and the rule of law II: Reply to RAF

[ 90 ] November 26, 2014 |

(Title is a bit off because there’s nothing much about immigration here, but I started the series with “I” and III will return to a substantive discussion of immigration, and this belongs in the series).

Russell Arben Fox has written a thoughtful reply to my last post, in which he also gives his answer to some pointed questions that were posed to him in comments. This post is helpful in that it’s clarifying to me; I think I have a much better sense of what he’s coming from than I did before. That clarity doesn’t move me toward his position, however, if anything it makes me more confident in my own. Russell takes from my post and related discussion four questions for him which he seeks to answer here:

1)  What is the difference between constitutionality and legality, and do I think one is prior to the other?
2) What does procedural traditions, norms, and precedents have to do with either of those?
3) What specific norms do I think Obama’s action violated, in light of the actually existing history of executive orders?
4) Isn’t it irresponsible to toss around terms like “unconstitutional” in our current political climate anyway?

The fourth question wasn’t from me and I’m not particularly worried about it; I could see this being a reasonable worry if he were using his idiosyncratic definition of ‘unconstitutional’ (yet lawful) without further explanation in an op-ed in a major newspaper or something, but in a philosophically inclined intra-blog discussion such worries seem out of place to me. I’m most interested in the third question. I’ll follow Fox in taking the first two together in this post, and address #3 at greater length in a separate post.

Taking the first two together, Fox basically defends a conception of his focus on a conception of constitutionalism and the rule of law that focuses entirely on, as I put it, the relationship between different parts of the government and not the relationship those parts have with the governed, situating himself in a venerable tradition of democratic political theory associated with, amongst others, Hannah Arendt and Sheldon Wolin (One that I’m hesitant to call ‘radical’ even as it has become customary to do so; as Fox’s deployment of it clearly demonstrates it can have quite conservative implications, in both the small-c and contemporary political uses of the term).

The primary source for my disagreement is my rejection of the substantive claim that Obama’s executive order “violates symbolic precedents and procedural norms” and “show(s) disrespect for (admittedly, always evolving) informal expectations and procedural rites” to a degree that we should be troubled by. I’ll take this up again in my next post addressing Fox’s answer to the third question. A more detailed response here would get deeper into the inside baseball political theory disagreements than is necessary, so I’ll limit myself to one clarification and one general observation about the shortcomings of this approach.

A probably unnecessary clarification: in my previous response to Linker I sought to take him to task for conceptualizing the rule of law in a way that appeared to ignored the government/governed relation altogether, and focused entirely on the relationship between the parts of the government. That doesn’t mean I don’t think intra-government relations aren’t important for the rule of law, of course. What I did mean is that I don’t think there’s much value or utility in separating out the two kinds of rule-of-law concerns. The question “what does X mean for the rule of law?” simply can’t be meaningfully answered by bracketing out one half of the equation. The evaluation of X must weigh any rule of law damage to intragovernmental relations (which I don’t grant in this case, but let’s say I did) and weigh it against rule-of-law repair to the government/governed relationship. Neither will ever be perfectly consistent with the rule of law, a goal that will forever remain out of reach (this seems obvious to me, which is one thing that frustrates me about the treatment of the rule of law in much political and legal theory, where it’s treated more like a threshold concept than an aspirational one).

While leads to my more general observation.  I was fortunate to have the opportunity to take a class in graduate school with Joel Migdal, a scholar who influenced me a great deal in how I think, conceptually and analytically, about “the state.” Here’s his not as famous as it should be definition of the state:

The state is a field of power marked by the use and threat of violence and shaped by (1) the image of a coherent, controlling organization in a territory, which is a representation of the people bounded by that territory, and (2) the actual practices of its multiple parts. (from pg. 15-16 of this book).

It is, for my money, a great shortcoming of contemporary political and democratic theory that we discuss the state primarily in terms of (1) at the expense of (2). Some of the most interesting things we might want to say about the state can only come into focus only when we examine (1) and (2) side by side, noting the gaps, tensions, and contradictions between these two faces of the state (my next post will draw on the scholarship of a Migdalian immigration scholar doing exactly that). The state—and its rules, norms, conventions, and practices—only interest us because they interact with society. If we focus on (1) at the expense of (2) we risk becoming dazzled or mesmerized by the image of itself the state is selling, embracing its self-serving ideology uncritically. Another scholar whose work I know Russell finds quite powerful and who helps us keep this danger sharply in mind is James Scott, who does an outstanding job of demonstrating some of the dangers that accompany unofficial ideologies of states (his “seeing like a state” and its high-modernist assumptions about societies and terrain) that only become discernable when we focus on (2) alongside (1). I tried to capture the attitude toward the state I advocated for in this post:

Five hundred-odd years ago, give or take, in Europe, the configuration of social power changed. A kind of entity called the state began to emerge as victorious in struggle for social power. This power grab wasn’t at all noble or particularly justifiable in normative terms, indeed, war making and state building were intimately connected developments. The quasi-monopoly this kind of entity was able to create on the exercise of legitimate violence created extraordinary new opportunities for exploitation but also contributed to an environment that allowed for extended periods of peace and prosperity, at least for certain lucky segments of the population. To state the obvious, the arrival of the state as the dominant form of social and political power was both wonderful and horrible: the state created new opportunities for wealth and security, and perpetrated brutal, oppressive crimes against humanity with staggering efficiency.

In other words, let’s treat states as a historically bounded and contingent form of social power. Let’s avoid, as Jacob Levy puts it, the over-moralization of historical processes that lead us to a teleology of political forms.

This feels a bit vague to me so I’m going to try and sum up my argument with as much clarity as I can muster presently: When evaluating the the legitimacy of state action we ought to attempt to do so, as much as possible, from a position of epistemic and conceptual independence from the state’s legitimating stories.  I think a version of “the rule of law” might be a useful part of that assessment, and living up to their own commitments about how they’re supposed to govern could very well be part of that. But, if we’re starting from such a place of independence we can’t privilege that worry over the worry about the government/governed relation at the level of theory, as doing so concedes far too much ground to the state’s self-serving narratives about legitimacy. In short: I encourage Russell to work on his “anarchist squint.”

The Last Time Mississippi Will Subsidize Health Care

[ 13 ] November 26, 2014 |

Researching the labor history post on the Black Codes, I ran across this tidbit from historian David Oshinsky:

Nugent was among the lucky ones: he came back alive. More than a third of Mississippi’s 78,000 soldiers were killed in battle or died from disease. And more than half of the survivors brought home a lasting disability of war. Visitors to the state were astonished by the broken bodies they saw at every gathering, in every town square. Mississippi resembled a giant hospital ward, a land of missing arms and legs. In 1866, one-fifth of the state budget went for the purchase of artificial limbs.

20 percent of a state’s budget, just for artificial limbs. I suppose the lesson is don’t commit treason to defend slavery, but while the percentages were must lower in the North, the impact of the returning amputees was just as drastic.

Guest Post: “Riots” is Racist

[ 66 ] November 26, 2014 |

This is a guest post from Meredith Heller (The Saucy Scholar)

The term “riots” is racist.  Yes, this is about Ferguson.

Last night, our fair-and-just judicial system decided that a White police officer shooting an unarmed Black teen in a town smothered in racism does not warrant a trial. In a community where the major perpetrator of racist violence and injustice are the police, in a community where the legal system doesn’t see this as a big enough issue to even have a trial, the community has little other option than to enact public protest. That protest can get violent, surely. But calling this form of public and sometimes violent disobedience a “riot” is racist. Riot is the term we use for Black protests and the aftermath of drunken sports victories or losses. When White people protest oppressive institutions, we call it revolution. The words we use matter.

I’m not condoning violence. Of course I’m not, that should (but can’t) go without saying. And if you think this is a rant about police, you don’t know me at all. I like the police. Why wouldn’t I? They generally treat me with deference and respect. Also, I’m a White, femme woman with the letters Ph.D. after her name. By the way, that Ph.D. cache didn’t work so well for Arizona State University Professor Ersula Ore. Lucky for me, I also White and femme. But the majority of the community in Ferguson can’t say the same. And when they go out and publicly protest this legal injustice, this is what they will encounter:


A heavily armed, militarized police force trying to suppress Black folk as they protest about police brutality against Black folk. Wait, didn’t I already see how this played out in The Hunger Games?

For Black people to do this, to leave their homes and to publically protest, is scary and brave, because they shoot unarmed Black people in Ferguson. And it doesn’t even warrant a trial. And we call this rioting.

I had the great fortune of working for Dr. Ingrid Banks. In Intro to Black Studies, Dr. Banks shows this picture:


Photo from Black California Dreamin’: The Crises of California’s African-American Communities, Ed. Clyde Woods

It’s a picture of the Southern California Library near Inglewood standing intact during the 1992 L.A. “riots.” Next to it, a liquor store has been burned to the ground. This picture is living proof that riots are not necessarily blindly destructive, that they are not just about hurting people and looting and malicious anarchy. In this particular case, many, many people made conscious choices about how to direct their public anger. What happened in L.A. and what’s happening in Ferguson is clear and directed public protest. Calling it a riot is cultural racism because it maintains sincere fictions that Black people are dangerous, irrational, and violent (they riot) rather than brave or just (they revolt). So lets call what’s happening a revolt against oppressive ruling systems, and a revolt that responds to violence and destruction with violence and destruction. We don’t have to condone it, but we don’t have to dismiss it as a riot either.

It’s important to accurately context this type of disobedience—use words that clearly and directly speak to what’s going down—because, to quote Battlestar Galactica, all this has happened before, and all this will happen again.  Know how I know?


Oh, also #BlackLivesMatter

But We Can All Agree Bugs Bunny in Drag Was Intensely Hot, Right?

[ 159 ] November 26, 2014 |


Rod Dreher is very titillated by upset about New York Magazine’s interview with a zoophile. Not understanding the concept of consent and the difference between interspecies and human/human relationships, he thinks that this interview is an attempt to normalize zoophilia. This is liberalism in action, folks. You decide to mind your own goddamn business and not worry about other people are doing with their genitals and suddenly everyone’s trolling the zoo for romantic partners. It’s true. I decided that that I wasn’t going to worry about what consenting adults do in the bedroom. Not two seconds later, I stumbled across a man making violent love to a ferret.  I know what you’re thinking: NO, it wasn’t Mike Cernovich. 

Conservatives too often mistake liberalism for libertinism. I’m a liberal. This means that I’m cool with same sex relationships. It means I’m cool with kink so long as the kink is safe/sane/consensual/etc. That doesn’t mean *I’m* kinky. (It also doesn’t mean I equate homosexuality with kink. The two things don’t have anything to do with each other.)

That doesn’t mean I think all kink is cool and awesome. (I find many paraphilias pretty gross.) The only thing it means is that, being pretty intensely private about my fairly vanilla love life, I like to grant everyone the same right to privacy. In other words, unless you’re hurting someone with your extra-curricular activities, I don’t wanna know about them. It doesn’t mean I dig them or approve of them. It doesn’t mean that when I read an article about horse-fucking I begin thinking to myself “You know what? That sounds all right.”

But I can understand how Rod Dreher–his brain addled by all the hot hamster porn he’s been “researching”–might find these concepts confusing.


Was Passing the Affordable Care Act A Mistake? (SPOILER: No.)

[ 96 ] November 26, 2014 |

Chuck Schumer is reiterating his argument that Democrats should have done some unspecified things for the “middle class” rather than the Affordable Care Act. I’ve discussed this genre of argument before, and Brian Beutler does a good job on this round. But to summarize what should be obvious:

  • The Affordable Care Act is almost certainly the most important progressive legislation passed by Congress since the Johnson administration.  It will save many lives, alleviate a great deal of suffering. prevent many people from the crushing anxiety of massive debt and bankruptcy.  This puts a huge burden of proof on the Emmanuel/Frank/Schumer position.  If I’m going to give this up, I’d better be getting a lot in exchange for it.
  • This goes triple, because Truman failed to enact comprehensive health care reform and LBJ failed and Clinton failed.  An opportunity to pass it was not going to come along again for a long time.
  • One of the hypothetical proposed benefits cannot be retaining control of the House in 2010.  Maybe there was an alternative legislative strategy that could have saved the Democrats a few seats.  There were no legislative strategies that could have saved the Democrats 50 seats.
  • We should note at this point that given the delay in seating Franken, Ted Kennedy’s illness, and the Martha Coakley Experience I, the Democrats had a filibuster-proof supermajority for exactly 60 days while the Senate was in session in 2009-10.  Congressional Republicans had an explicit strategy of denying Obama any major achievement. There was not going to be another big stimulus passed during this period.  There was not going to be a wide array of legislation passed during this period.  Josh Blackman’s assertion that “the President could have done immigration, climate change, and so many other goals” during this very narrow window is quite clearly false.
  • And on the only one of these issues that could possibly compare to the ACA in terms of importance — climate change — the narrow supermajority window was beside the point.  I don’t know how anyone could look at Mary Landrieu desperately trying to get Senate approval of Keystone while drawing dead in a runoff election and think that she was ever going to vote for cap-and-trade.  And even if you can somehow get her vote you would have needed Robert Byrd and Mark Pryor and Ben Nelson. You would have needed the two Democratic senators each from North Dakota and Montana.    Unless there was a button Obama could have pushed that would transform Congress into a unicameral legislature with representation-by-population that didn’t massively overrepresent rural and/or conservative and/or fossil-fuel dependent states, cap-and-trade was Not Happening.  The choice was not between the ACA and cap-and-trade.  The choice was the ACA or nothing remotely as important.

The point of winning elections is to do stuff.  The point of winning elections if you’re a Democrat is to do stuff that will protect the most vulnerable members of society and remedy the worst inequities.  Getting the ACA passed fulfills these bedrock goals far better than any plausible alternative course of action.

…Dean Baker has more. As does Paul Waldman.  And, most importantly and eloquently, Nancy Pelosi.  “”We come here to do a job, not keep a job. There are more than 14 million reasons why that’s wrong.”  Just so.

But A Full-Employment Plan For Canadian Lawyers Is Not In the Cards

[ 7 ] November 26, 2014 |

The most frivolous lawsuit not filed by Orly Taitz in known human history has been dropped. Not only is Ghomeshi not getting one thin dime from the CBC, he’s out nearly 20 grand to cover their costs.

A potential solution to the law school graduate employment crisis

[ 71 ] November 25, 2014 |


HBO is backing a documentary based on “Going Clear,” a book about Scientology and Hollywood — and isn’t taking any chances with the legal side of things.

“We have probably 160 lawyers” looking at the film, HBO Documentary Films President Sheila Nevins told The Hollywood Reporter. . .

“Going Clear,” by Pulitzer Prize-winning writer Lawrence Wright (“The Looming Tower”), digs into the life of Scientology founder L. Ron Hubbard and the influence his church has had on its believers, many of whom have close ties to Hollywood
Among Tinseltown’s famous Scientologists are John Travolta and Tom Cruise.

Some of Wright’s findings, including claims of abuse, didn’t go over well with the church.
“The stories of alleged physical abuse are lies concocted by a small group of self-corroborating confessed liars. The hard evidence clearly shows that no such conduct ever occurred and that in fact there is evidence that shows it did NOT occur,” the group’s spokeswoman, Karin Pouw, told CNN’s Miguel Marquez in 2013.

A Ham Sandwich, But Not a Police Officer

[ 139 ] November 25, 2014 |

Jon Cohn’s assessment of the grand jury’s refusal to indict Darren Wilson is very useful. It’s hard to imagine a prosecutor essentially tanking his case for the grand jury in another type of killing, and this also explains why McCulloch sounded more like a defense attorney than a prosecutor at a press conference.

This would be a good time to read Radley Balko on Ferguson if you haven’t already.


But the goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

Life on the Road

[ 106 ] November 25, 2014 |

A good tale of a successful band that tours well, sells out shows, and comes up $11,000 in the hole for the tour. The whole “we don’t need to buy our albums because the artists will make the money on tour” is nothing more than justification for not buying albums. The artists aren’t making money on the tour.

“You have to hand it to the old bastard, he’s highly original.”

[ 53 ] November 25, 2014 |

The Republican Party has an exciting new health care plan out. Against all odds, it involves throwing millions of people off their health insurance so the affluent get more tax breaks. And most people with pre-existing conditions are out of luck. Oh, and tort reform and plenty of it! It is the Party of Ideas (TM), you know.

Why, I’m beginning to think that the Affordable Care Act isn’t really a “Republican” policy initiative…

The Antidote to #GamerGate: The Happy Gaming Gamers Thread–Whatcha Playing?

[ 168 ] November 25, 2014 |

#GamerGate has put a spectacularly ugly face on a perfectly respectable hobby. I used to be obsessed with arcades; I was obsessed with my friend’s Atari set. I played everything from pinball to Tempest. Granted, I haven’t played video games since I was regularly rescuing the princess in Mario Brothers, but I’ve always been down with gaming and I hope to get back into it at some point. Gaming is fun; we should celebrate that. In that spirit, now’s you chance to talk about what scratches your gaming itch.

  • What are you playing? What are you loving?
  • If you were recommend a video to beginning gamers, what would it be? I know there’s a lot out there to choose from, but let’s make this simple: What’s something fun and intuitive you can recommend?

Consider this a gaming open thread. Talk about whatever gaming-related.

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