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Sweet Dreams

[ 4 ] March 28, 2015 |

Nighty-night!

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Justice Finally Done

[ 74 ] March 27, 2015 |

I argued that year that the United States should not have given a second’s consideration to extraditing Amanda Knox had she been re-convicted of a murder she plainly didn’t commit.   Fortunately, this action will no longer be necessary.    Glad someone else in the Italian judicial system finally stepped into the grown-up chair.

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Mapping Occupation

[ 11 ] March 27, 2015 |

Freedman_bureau_harpers_cartoon

The historian Gregory Downs and the historian and visual designer Scott Nesbit have put together a pretty fantastic visualization of the U.S. Army occupation of the South during Reconstruction. Looking at this really demonstrates the tenuous hold the military had over the white South, even at its height in rural places. The Army guaranteed the civil rights the emancipated slaves demanded but the lack of a long-term and sizable military force meant it could do little about white violence. This is worth your time.

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The Amateurism Fallacy

[ 88 ] March 27, 2015 |

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When you boil them down, defenses of the NCAA cartel boil down to a “if things were different, they wouldn’t be the same” argument.  Allegedly, the mystique of the NCAA comes down to players being forbidden from receiving anything but scrip as direct compensation, and also having extraordinary, unique bans on third party compensation that don’t apply to any other students imposed on them.  People are not offended by everyone else in the NCAA raking in as much cash as they possibly can, but end the exploitation of players in high-revenue sports and the edifice would crumble.

The most important response to this argument, of course, is “who cares?”  If the popularity of NCAA sports depends on gross exploitation and egregious double standards, then it’s not worth saving.  Sentimentality and trivial aesthetic preferences are pathetically weak justifications for denying the people taking the most risk and generating the most value fair compensation.

But here’s the thing: I don’t believe that the argument is correct on its own terms.  Owners asserted, after all, that free agency would destroy the popularity of pro sports, when in fact the popularity of pro sports exploded after free agency.  What fans will rant about to talk radio hosts has little connection with their future behavior.  In comments in the last thread, I think djw put the point brilliantly:

What’s particularly absurd about the first complaint is that at big-time sports schools, Football and Basketball resemble a professional team already in all the relevant ways: some of the best athletes in the world who treat athletics like more than a full time job, extremely high level of competition and performance, tons of money, marketing, and TV contracts, lots of people making obscene amounts of money, world class facilities, etc. The only real difference is that the people who do the most important and risky labor don’t get paid/get paid in dubious company script. It’s enormously popular.

On the other hand, there are hundreds of DII and DIII schools where the same sports teams resemble the amateur ideal a great deal more–no compensation, HS+ level facilities, part-time coaches, practice and travel schedules that let athletes be students in a meaningful sense, etc. Nobody cared. I attended one of those schools, I only heard my team was playing for a national title by watching sportscenter. (But I did watch UW on TV every week).

Bitter scribe’s assumption is that even though every single step toward professionalism so far has made college sports more popular, that one last step will someone how ruin everything. Let’s just say he’s got a substantial unmet burden of proof here.

The fact that the popularity of college sports is inversely correlated with how closely they embody the Noble Ideals of Amateurism makes claims that compensating players fairly will destroy college sports implausible in the extreme.

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Larry Tribe: The Crank Years

[ 44 ] March 27, 2015 |

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Chait has an amusing discussion of Laurence Tribe’s willingness to cash paychecks from Big Coal to make arguments better suited to the CATO institute blog:

Tribe is playing an important legal role, which has to be evaluated on its own terms. Other law professors, like Richard Revesz, Jody Freeman, and Richard Lazarus, have called Tribe’s legal argument frivolous and absurd. Tribe has responded. But aside from the legal case Tribe has devised, his advocacy is also playing a crucial public role in the debate — even liberal professor Laurence Tribe noted that Obama’s climate regulations must be unconstitutional, which sounds very different from even coal company lawyer Lawrence Tribe agrees that Obama’s climate regulations must be unconstitutional. Should anybody put weight on Tribe’s endorsement of the anti-Obama lawsuit, any more than they should have taken Harvard law professor Alan Dershowitz’s word for it that O.J. Simpson was innocent?

The question of whether Tribe is arguing in bad faith is difficult to answer. His fetish for bad states’ rights arguments did not begin here, although as far as I can tell he’s certainly never made any claims this remotely this bad or this radical before. As Paul has previously observed, at Tribe’s particular position in the legal profession asking whether he’s arguing in bad faith is almost a category error, like trying to figure out what the leader of a large brokerage party “really thinks.”

The more important question is whether his arguments are at all plausible, and…they are in fact strikingly terrible. They push far beyond current federalism doctrine to reach results with appalling consequences. Taken together, if applied seriously the arguments he’s making would threaten huge swaths of the United States Code. I’m particularly gobsmacked that he would embrace a favorite argument of radical libertarians, “the contemporary regulatory state is unconstitutional because the takings clause“:

Second, the constitutional arguments are wholly without merit. Tribe argues that EPA’s rule is an unconstitutional “taking” of industry’s private property under the Fifth Amendment because government regulation of power plant pollution has not covered greenhouse gas emissions until now. The clear implication of Tribe’s novel view of the Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative. The harm EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change. Indeed, after an unprecedented and exhaustive scientific review, EPA in 2009 made a formal finding that greenhouse gases already endanger public health and welfare. The D.C. Circuit upheld this finding, and, given a chance to review it, the Supreme Court declined. This is important because it makes it all the more astonishing that Professor Tribe has himself determined that greenhouse gases do not pose the kind of risk that government is entitled to address, unless it is willing to compensate industry for its losses. It is hard to imagine a more industry-friendly and socially destructive principle than this.

Thankfully, this principle has no basis in constitutional law. The Supreme Court has repeatedly made clear that the Fifth Amendment’s Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. The Constitution protects only “reasonable investment backed expectations,” and there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare. Certainly the coal industry uniquely enjoys no special exemption from this fundamental constitutional rule.

The nondelegation and anti-commandeering are no better, and any of them could have been made by Richard Epstein himself. I don’t really care whether Tribe believes them or not; what matters is that they all need to be killed and the earth salted before they could reemerge. They would be embarrassing if they were being made for good policy ends, let alone being made to protect the interests of polluters and increase carbon emissions during an environmental crisis. And I’m note sure he’ll be able to get even Clarence Thomas’s vote for the constitutional arguments.

Tribe has made many salutary and important contributions to constitutional law. Where’s he’s coming from here, I have no idea.

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Same-Sex Marriage Pre-History

[ 37 ] March 27, 2015 |

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Reasonable Moderate Sam Alito and other theocrats claim that same-sex marriage is illegitimate because it is a brand new perversion of a perfect and long-lasting institution. This is of course hooey. First of all, much of the history of the United States is based around the right to marry the person of your choice and live a dignified life with that person. Let’s not forget that slaves could not marry.

If you have access via a library to the latest edition of the Journal of American History, I highly recommend Rachel Hope Cleves’ article on the prehistory of same-sex marriage. And if you can’t read it, she did a podcast you can listen to. She basically tracks down a long history of gay marriage, going back to berdaches among southwestern indigenous peoples through gold miners in 19th century California and to many cases throughout American history of people accepting marriage and marriage-like arrangements between same-sex couples. So much of our gay history, even from gay activists, comes from a touchstone that the past was a horrible place and that only after 1969 did things improve. This is not so dissimilar from our popular history of sexuality. Both on both counts, the history is much more complicated and if the 1950s and early 1960s were a period of repression of gays (and sexuality more broadly), before World War II, it’s a whole other country out there. Take the image above, which is in her article. This is a circa 1820 marriage silhouette of Sylvia Drake and Charity Bryant. Such silhouettes were common among married couples at that time. Drake and Bryant made a life together and maybe not everyone was comfortable with it, but they made it work, living as active church members in their Vermont community.

Even the New York Times could speak positively of same-sex marriages, at least in theory. This comes from Cleves’ article and the reference is an 1883 story uncovered of two women married to each other, one of whom was passing as a man.

Now that the Waupun public has succeeded in ascertaining that Mr. Dubois, the husband of Mrs. Dubois, is really a woman, it is assumed, as a matter of course, that the pair must separate. Public opinion will not tolerate the marriage of two women, and Mr. Dubois has escaped probable imprisonment and threatened tar and feathers by confessing her sex and agreeing to abandon her wife. At this distance from Waupun it may strike unprejudiced people that Mr. and Mrs. Dubois have been subjected to rather harsh treatment. If Mrs. Dubois chose to marry a woman, whose business was it? Such a marriage concerns the general public less than the normal sort of marriage, since it does not involve the promise and potency of children. It has been well established that if a woman chooses to wear trousers she has a right to wear them, and no one will venture to deny the right of any two women to live together if they prefer the society of one another to solitude. Why, then, has not Mrs. Dubois the right to live with another woman who wears lawful trousers, and why should so much indignation be lavished upon Mrs. Dubois’s female husband? There are many women who, if they had the opportunity, would select other women as husbands rather than marry men. The women who regard men as dull, tiresome creatures, incapable of understanding women, would find sympathy and pleasure in the society of female husbands.

These stories are important in fighting back against the false history of marriage pushed by theocrats. Yesterday’s passage of a discriminatory bill in Indiana shows just how important this is. While gay marriage seems like it will soon be universal, the theocrats will not give up and equal rights for all will need defense. A usable past is a key part of that defense.

….Another summary of the article in the Washington Post for those without access to the original.

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Reid Retires

[ 131 ] March 27, 2015 |

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Harry Reid is retiring — an a presidential cycle, luckily. Kilgore on his legacy:

We’ll soon get around to appreciations of what Reid accomplished and tried to accomplish, and an assessment of the contest to succeed him as Senate Democratic Leader (Chuck Schumer and Dick Durban are the most likely candidates). I think he will be most remembered as the Senator who finally began restricting the out-of-control use of the filibuster, though he also deserves significant credit (or blame) for how the Affordable Care Act was put together and enacted. For now we can just marvel at his long and very significant career.

I’ve said this before, but I think Ed’s assessment of Reid’s work on the ACA is far too equivocal. It seems ever more obvious in retrospect that what’s surprising is not that something much better than the ACA couldn’t pass but that Reid and Obama were able to get 60 votes for anything. Certainly, the next person with an even slightly plausible argument explaining how he could have gotten the votes of Lieberman, Bayh, Nelson, Landrieu, Lincoln, et. al for, say, a meaningful public option will be the first. There were certainly more liberal senators than Reid, but I’m not sure how many of them would have been more effective parliamentarians. He was very good at his job at a time when the Democrats really needed him to be.

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Bomb Bomb Bomb, Bomb Bomb Iran!

[ 41 ] March 27, 2015 |

Rear view of jet aircraft in-flight at dawn/dusk above mountains. Its engines are in full afterburner, evident through the presence of shock diamonds.

“F-22F119″ by U.S. Air Force photo – http://www.af.mil/shared/media/photodb/photos/990430-F-0000B-002.jpg. Licensed under Public Domain via Wikimedia Commons.

My response to the Roose John Bolton and Joshua Muravchik’s warmongering op-eds came out earlier this week. My piece actually came out before the former, but as there’s so little that’s even faintly novel about Bolton’s argument, that doesn’t present much of a problem.

We are a few days away from the latest deadline in the Iran-U.S. nuclear talks. Much of the case on whether we need a deal depends on this question: what does the Middle East look like if Tehran and Washington don’t come to an accord? Is war between the United States and Iran inevitable? If U.S. hawks succeed in scuttling a nuclear deal, then those same hawks will shift, in short order, to insisting on war as the only remedy.

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Black Power Revisionism

[ 70 ] March 27, 2015 |

Black-Power-Gossip

Randall Kennedy has an interesting long book review of new biographies of Malcolm X, Stokely Carmichael, and Huey Newton. I haven’t read any of them, not even Manning Marable’s acclaimed Malcolm book, but there are a couple of points worth discussing here anyway. First, Kennedy accuses each author of engaging in hagiography over proper historical analysis. I can’t judge the claim, but that does seem to be the case with the Newton book, which just seems bad from multiple reviews. As for the other two, both Marable and Peniel Joseph (who is speaking at URI next week so come out if you are around) are both outstanding historians, but it is often a problem with biography that authors start apologizing for their subject. And as Kennedy points out, there is plenty that is distasteful about both. I find that more convincing with Carmichael, whose leadership of SNCC was disastrous and who seemed somewhat less serious about what he was doing after he achieved fame (although he did largely avoid the spotlight after he went to Africa). But with Malcolm, Kennedy’s problem is the Nation of Islam. I don’t think too many people are really going to defend NOI at this point. Its murders of its own members and the rank hypocrisy of Elijah Muhammad are well known now. But while Kennedy admits that Malcolm shows significant room for personal growth, he also wants to make sure that he is held accountable for his actions before his expulsion from the organization in 1964.

Well, OK, but this gets to my second point, which is about context and the passage of time. In other words, it is very easy to write in 2015 about how the Nation of Islam was horrible, how the Black Panthers were violent and cruel, and how Carmichael ran SNCC into the ground. It’s not that Kennedy forgets the context in which these people were working, but it’s also worth reiterating it. Malcolm and Newton were operating in urban centers where African-Americans had moved for the promise of a better life, but that promise had been a lie. In 1960s Oakland, Los Angeles, Newark, Chicago, Detroit, etc., police brutality was a way of life. There were no jobs. Most people could not afford a car. Public transportation was almost nonexistent. The only economic outlet for many was drugs. The Civil Rights Movement could win concrete victories in the South because it battled legal segregation, but the de facto segregation of northern and western cities made victories much, much harder to win, as Martin Luther King and the SCLC found out in the failed Chicago housing campaign of 1966. It’s hardly surprising that black pride and black power organizations, whether Marcus Garvey’s United Negro Improvement Association, the Nation of Islam, or the Black Panthers, would rise out of this. It’s equally unsurprising that those organizations would be problematic and violent, as violence ruled the communities from which they arose and organized.

As for Carmichael, while his leadership of SNCC didn’t work out, the overall move away from racial inclusion to black power within the student led side of the Civil Rights Movement also makes sense in context, even if it was a bad idea strategically and organizationally. Let’s not underestimate the bitterness that led SNCC to design Freedom Summer because its organizers knew that only when white kids were killed would the media pay attention to anything happening in rural Mississippi. This analysis was of course exactly right when the three SNCC workers, two white, were murdered by the KKK. Ten years of struggle, suffering, and death in the face of overwhelming violence is a bravery I can barely imagine. If people burn out and snap or turn to black power and racial exclusion, it’s not surprising at all. It says much for John Lewis’ character that he never went down this road, but it is an understandable response to the horrifying experiences of these people’s lives.

Finally, I thought this was unfair to Malcolm X:

While Malcolm X and other followers of Elijah Muhammed put on cathartic performances in safe surroundings, however, King, Carmichael, Medgar Evers, John Lewis, Fannie Lou Hamer, James Farmer, Julian Bond, Bob Moses, Diane Nash, James Lawson, and others risked their lives repeatedly in face-to-face confrontations with heavily armed, trigger-happy white supremacists. While Malcolm X was taunting King and company for rejecting violence, the tribunes of the Civil Rights movement were successfully pressuring the federal government to bring its immense weight to bear against the segregationists through the Civil Rights Act of 1964 and the Voting Rights Act of 1965. While Malcolm X talked tough—“if someone puts his hand on you, send him to the cemetery”—he and the NOI refrained seeking revenge when racist police brutalized Black Muslims. While Malcolm X spoke with apparent knowingness about racial uplift, at no point did he communicate a cogent, realistic strategy for elevating black America.

But Marable is not denigrating any of those other civil rights activists. No one is saying those people did not do amazing things or put their lives at risk. They were also, outside of Hamer, college-educated. This movement Kennedy lauds in comparison to Malcolm was a decidedly middle-class movement. They came out of a different African-American tradition than Malcolm. Second, one could basically say the same thing about the relationship between W.E.B. DuBois and Booker T. Washington, with the former safely ensconced in Cambridge and the latter risking his life in rural Alabama. Yet in this case, even most historians today sympathize with DuBois instead of Washington (in part because the Civil Rights Movement proved DuBois’ “talented tenth” idea correct and Washington’s rejection of political gains wrong). But mostly I don’t think this is a useful comparison to make at either time. There were many paths to African-American freedom. Some were more effective and some more problematic, but I don’t think basically calling Malcolm a poseur compared to SNCC activists is useful.

It’s an interesting and challenging review, but I think if anything Kennedy is moving toward hagiography toward the mainstream CRM (after all, he might well call Malcolm sexist and socially conservative, but MLK could certainly be accused of the same) and therefore overcompensates in his analysis of these people. He occasionally makes pretty easy judgements about which group was right or wrong in 1965 when in reality everyone working for black freedom in the 1960s faced overwhelming white violence and police brutality. That certainly doesn’t mean that we should take Huey Newton at his word or not question the self-mythologizing all three of these men could engage in, but, as always, everything should be contextualized and our own positions questioned.

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TPP

[ 21 ] March 27, 2015 |

Greg Sargent has what I think is a pretty solid run-down of where progressive Democrats are with the Trans-Pacific Partnership. In short, it’s not a strong hand. In this era where many congressional Democrats basically ignore labor and neoliberalism rules the day, we are stuck relying on a combination of Democrats who care more about the American working class than U.S. foreign policy advantages and Republicans who won’t vote for anything Obama supports. And I think most of the latter will fall by the wayside. The AFL-CIO is working the best angle, which is trying to create conditions for its passage rather than full rejection. First and foremost is the ability for Congress to come back after the deal is finalized and vote it up or down. This just makes sense. Given how much of the TPP has been negotiated in total secret, it’s ridiculous to give any president the ability to fast track without Congress having say later. If Obama says that it could torpedo the whole deal down the road, well good. Make the deal palatable to organized labor.

As for the arguments Obama and TPP supporters make, I have a very hard time buying any of them. Obama says it will have strong labor and environmental protections. Without labor and environmentalists’ input in this process, will said provisions be strong? Almost certainly not. If Clinton didn’t need labor and environmentalists’ support to pass NAFTA, Obama certainly doesn’t need it for the TPP and I suspect the agreement’s final language will reflect that. If it actually has enforceable provisions that put power in the hands of the world’s workers, then that’s great. I’m not holding my breath. As for the position that we need to support the TPP so that China doesn’t impose its own trade agreement, I just don’t think Cold War-esque fears of a communist rival are reason to pass an agreement that will send even more American jobs out of the country. It’s not like we are forming NATO here and that Vietnam can’t also sign a trade agreement with China. But this kind of foreign policy argument will always appeal to moderate Democrats who aren’t too close to unions anyway.

As you may have heard, Wikileaks was able to leak some of the TPP proposed language. And it’s as much a document about international corporate rackets as you fear.

According to an analysis of the leaked chapter by Public Citizen’s Global Trade Watch, tens of thousands of foreign and US owned companies would be able to access ISDS courts under the TPP to challenge signatories’ rules and regulations.

The tribunals, which fall under the jurisdiction of the World Bank and the United Nations, would operate without transparency, and be staffed by private sector attorneys who would rotate between advocate and judge.

Although the purpose of ISDS courts is to provide safeguards for companies against improper property seizure and to guarantee that they aren’t discriminated against by host countries, they’ve increasingly been used to challenge public interest laws.

In 2012 alone, there were sixty cases brought to ISDS by private companies against sovereign governments—the majority came from US businesses looking to skirt regulations in developing countries.

Under previous trade agreements, corporations have used these international courts to attack environmental, public health, and financial regulations and laws. Companies have been awarded more than $440 million from taxpayers under previous investor-state settlements associated with US free trade agreements.

They appear designed to have a chilling effect on regulation—particularly in countries that can ill-afford to lose expensive court battles.

In other words, corporations are creating the type of international legal framework to oppress workers and support their own interests against national regulatory structures that I want for workers to force corporations to abide by international labor and environmental laws. The TPP is going to be a great deal for multinational corporations. Whether it’s anything less than a horrible deal for the world’s workers, well, I guess we are going to find out.

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Superfly

[ 35 ] March 26, 2015 |

This week in my film class, I made the students watch Birth of a Nation out of class and Superfly in class to get at depictions of African-Americans in film over the 20th century. The great Gordon Parks directed the latter and while it is a cheaply made blaxploitation flick, it also has some truly great scenes. Like the cocaine montage, which we should all watch tonight.

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Mike Pence Makes Idiotic Argument to Defend Horrible Law

[ 62 ] March 26, 2015 |

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It should go without saying that Indiana’s Restoration of Bigotry Act is an abomination. I can’t resist, however, noting this particularly asinine defense of the statute from the governor:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it,” Pence said in his statement Thursday. “For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

Uh, can someone show me where the federal RFRA permits burdens on religious liberty to be invoked in suits between private parties? Because it seems to be missing from my copy of the statute. Which seems relevant, since such a provision is in Indiana’s statute and is what will undermine the state’s anti-discrimination laws. I concede Pence’s point: if the law he signed was different it would have different effects. The one he did sign, however, is a disgrace.

…relevant!

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