Home | About | RSS Feed | Contact and Publicity Guidelines | Comment Policy the Law, the Universe, and Everything 

advertise-here4


Slip Opinions


Groundhog Day. (fp)

Banned in Tucson. (kw)

The Best and Worst of 2011 in Race and Law (kw)

Tortured to death for trespassing. (fp)

Drones of contention. (fp)

DOJ still coddling banks. (fp)

Creative destruction? Thank banks. (fp)

Blog about a new book, on how to talk to little girls--stressing smarts not cutes.   LAC

Macey on the heroic Rakoff. (fp)

Captured NY Fed. (fp)


solicitors

Our Podcast

Subscribe to Law Talk

law-rev-contents2.jpg


  • Posts by Author

  • Categories

  • Archives


  • Recent Comments


    • Andrew MacKie-Mason on Can't the Supreme Court Just Say No to Cameras?

    • Joe on Employment Division v. Smith is Wrong

    • Shag from Brookline on Employment Division v. Smith is Wrong

    • Joe on Employment Division v. Smith is Wrong

    • Joe on Super En Banc in the Ninth Circuit

    • Shag from Brookline on Employment Division v. Smith is Wrong

    • G. Calamita on Symposium Next Week on "A Legal Theory for Autonomous Artificial Agents"

    • Joe on Super En Banc in the Ninth Circuit

    • Howard Wasserman on Can't the Supreme Court Just Say No to Cameras?

    • Gerard Magliocca on Super En Banc in the Ninth Circuit

    • Mike on Super En Banc in the Ninth Circuit

    • Ben on Lifecycles and the Firm

    • Samir Chopra on Symposium Next Week on "A Legal Theory for Autonomous Artificial Agents"

    • Chris Berry on Who Gets to Keep Trover?

    • Prof. W. Matias on Introducing Guest Blogger andré douglas pond cummings
  •  

    Site Meter

    About the Blog

    Concurring Opinions is a multiple authored, general interest legal blog.

    (Image: Wikicommons)

Partisanship vs/as Truth

posted by Frank Pasquale

In the space between the two political conventions, it’s a good time to think about partisanship. Political philosopher Nancy L. Rosenblum has just published On the Side of the Angels: An Appreciation of Parties and Partisanship. It’s a helpful corrective to the relativistic nonpartisanship that suffuses US media coverage of politics.

Consider, for instance, these lines from Bill Clinton’s speech two days ago:

Look at the example the Republicans have set: American workers have given us consistently rising productivity. They’ve worked harder and produced more. What did they get in return? Declining wages, less than ¼ as many new jobs as in the previous eight years, smaller health care and pension benefits, rising poverty and the biggest increase in income inequality since the 1920s. American families by the millions are struggling with soaring health care costs and declining coverage. I will never forget the parents of children with autism and other severe conditions who told me on the campaign trail that they couldn’t afford health care and couldn’t qualify their kids for Medicaid unless they quit work or got a divorce.

Are these the family values the Republicans are so proud of? What about the military families pushed to the breaking point by unprecedented multiple deployments? What about the assault on science and the defense of torture? What about the war on unions and the unlimited favors for the well connected? What about Katrina and cronyism?

Now, from a nonpartisan, “objective media” perspective, that’s an unfair screed. It focuses on the negative to the exclusion of anything positive. It can’t possibly be the “truth,” because the truth only emerges from full and fair debate between the “two sides” that exist on any issue.

But to the partisan, it’s a fair account of the history of the past eight years or so. So who’s right?


After reviewing political philosophy’s hostility to parties, Rosenblum rises to their defense:

Parties create, not just reflect, political interests and opinions. They formulate “issues” and give them political relevance. Party antagonism “stages the battle”; parties create a system of conflict and draw the lines of division. Moving back and forth between metaphors of natural and artistic creation, Maurice Duverger tried to capture this shaping power: parties crystallize, coagulate, synthesize, smooth down, and mold. Creativity in politics is almost always identified with founding moments, constitutional design, transformative social movements, or revolution, not with “normal politics.” Modern party politics is the ordinary, not (ordinarily) extraordinary locus of political creativity.

The analogy to artistic creation here is particulary evocative. Art can teach us unique truths, but can also hymn the most destructive ideas. Politics is a realm of narrative, emotion, and common vision. Rosenblum argues that one has to accept the possibility of partisanship’s harms if we’re to have a politics capable of constructing anything at all.

The legal academy appears less and less receptive to such ideas, insisting instead that truth and goodness emerge out of compromise and debate between two sides. Consider, for instance, the work of Cass Sunstein, who’s done a great deal to urge those on the opposite ends of the political spectrum to talk to one another. He certainly knows how to keep a conversation going. But if you listen to just a few minutes of this debate he has with Richard Epstein on the Obama candidacy, you quickly realize that “it takes two to tango.” While Sunstein reflectively considers whether Obama is enough of a free trader, Epstein has painted a terrifying picture of progressives hellbent on apotheosizing union bosses, imposing confiscatory taxation on the hardworking, and Lindbergh-style isolationism.

Sunstein’s theory and practice build on Rawls’s idea of political liberalism–of a well-ordered polity where all respectfully debate their differences according to principles of public reason. (He’s recently criticized George Lakoff’s work for being too visceral, and failing to live up to that standard.) But the key to Rawlsian deliberativism is the proviso that society is indeed well-ordered.

Speeches like Clinton’s (and Obama’s last night) take aim at that assumption. They give the lie to what Rosenblum calls “[t]he array of complaints that comprise “progressive antipartyism” [in] political theory today.” As I’ve argued before, mass politics is primarily about what issues are on the agenda–not principled deliberation on some pre-existing menu of options.

For a final example, consider the proper response to this claim, reflective of many elements of “free market” health policy circulating currently:

Almost one of every four Texas residents – 24.8 percent – were uninsured in 2006 and 2007. . . . But the numbers are misleading, said John Goodman, president of the National Center for Policy Analysis, a right-leaning Dallas-based think tank. Mr. Goodman, who helped craft Sen. John McCain’s health care policy, said anyone with access to an emergency room effectively has insurance, albeit the government acts as the payer of last resort. (Hospital emergency rooms by law cannot turn away a patient in need of immediate care.)

“So I have a solution. And it will cost not one thin dime,” Mr. Goodman said. “The next president of the United States should sign an executive order requiring the Census Bureau to cease and desist from describing any American – even illegal aliens – as uninsured. Instead, the bureau should categorize people according to the likely source of payment should they need care.”

Now one can try to rationally persuade Mr. Goodman that his pollyanna views aren’t all that responsive to the ultimate financial concerns of the 47 million uninsured. One could engage in disquisition about the nature of statistics, their accuracy, the difficulties of accounting for well-being in just a few numbers.

Or one could say this:

For over two decades, he’s subscribed to that old, discredited Republican philosophy – give more and more to those with the most and hope that prosperity trickles down to everyone else. In Washington, they call this the Ownership Society, but what it really means is – you’re on your own. Out of work? Tough luck. No health care? The market will fix it. Born into poverty? Pull yourself up by your own bootstraps – even if you don’t have boots. You’re on your own.

When you consider the extraordinary bias in what are often deemed “scientific” policy discourses, Rosenblum’s case for parties is all the more compelling. Leave the “deliberative democracy” for places that already have universal health care, fair educational opportunity for all, and a sustainable energy policy.


 August 29, 2008 at 10:02 am   Posted in: Politics   Print This Post Print This Post

Leave a Reply

Spam protection by WP Captcha-Free


  • « Previous post
  • Next post »

Authors

Daniel J. Solove
Kaimipono Wenger
Dave Hoffman
Frank Pasquale
Deven Desai
Danielle Citron
Lawrence Cunningham
Sarah Waldeck
Jaya Ramji-Nogales
Solangel Maldonado
Gerard Magliocca

Guests

Derek Bambauer
Gabriella Coleman
andré douglas pond cummings
David Gray
Brishen Rogers
Joseph Turow
Elizabeth A. Wilson













Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Marvin Ammori
Michelle Anderson
Laura Appleman
Taunya Lovell Banks
Ann Bartow
Steven Bellovin
Adam Benforado
Gaia Bernstein
Francesca Bignami
Josh Blackman
Joseph Blocher
Jeremy Blumenthal
Kathleen Boozang
Bruce Boyden
Donald Braman
Al Brophy
Neil H. Buchanan
Bill Burke-White
Scott Burris
Paul Butler
Ryan Calo
Naomi Cahn
Anupam Chander
Miriam Cherry
Jack Chin
Glenn Cohen
Jennifer Collins
Caroline Mala Corbin
Thomas Crocker
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Mark Edwards
Maxine Eichner
Jessica Erickson
David Fagundes
Lisa Fairfax
Joshua Fairfield
Christine Haight Farley
Kim Ferzan
Dan Filler
Mary Anne Franks
Michael Froomkin
Amanda Frost
Brian Frye
Timothy Glynn
Rachel Godsil
Eric Goldman
Kyle Graham
David Gray
Craig Green
Tristin Green
Jonathan Hafetz
Meredith Harbach
Michelle Harner
Jeffrey Harrison
Hosea Harvey
Erica Hashimoto
Jennifer Hendricks
Carissa Hessick
Laura Heymann
Robert Hillman
Gilbert A. Holmes
Nicole Huberfeld
Christine Hurt
Darian Ibrahim
Sherrilyn Ifill
John Ip
Shavar Jeffries
Kevin Johnson
Kristin Johnson
Jeff Jonas
Courtney Joslin
Dan Kahan
Jeffrey Kahn
Brian Kalt
Sam Kamin
Michael Kang
Chimène Keitner
Alicia Kelly
Orin Kerr
Nancy Kim
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Alex Kreit
Anita S. Krishnakumar
Susan Kuo
Greg Lastowka
Sarah Lawsky
Youngjae Lee
Margaret Lewis
Erik Lillquist
Jeff Lipshaw
Jonathan Lipson
Jacqueline Lipton
Matthew Lister
Joseph Liu
Michael Madison
Kevin Noble Maillard
Solangel Maldonado
Jason Mazzone
Linda McClain
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Viva Moffat
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Helen Norton
Elizabeth Nowicki
Paul Ohm
Angela Onwuachi-Willing
Michael O'Shea
David Opderback
Kristen Osenga
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Robert Percival
Michael J. Pitts
Marc Poirier
David Post
Amanda Pustilnik
Shruti Rana
Geoffrey Rapp
Neil Richards
Lori Ringhand
Alice Ristroph
Marc Roark
Sasha Romanosky
Tuan Samahon
Susan Scafidi
David Schraub
Paul Secunda
Jonathan Siegel
Jessica Silbey
Peter Smith
Judd Sneirson
Adam Steinman
Charles Sullivan
Rick Swedloff
Olivier Sylvain
Steph Tai
Andrew Taslitz
Robert Tsai
Jenia Turner
Steve Vladeck
Ari Waldman
Spencer Weber Waller
Howard Wasserman
Melissa Waters
Frank Wu
Alfred Yen
Corey Yung
David Zaring
Timothy Zick
Michael Zimmer
Jonathan Zittrain

Ownership

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

Blogroll

Above the Law
Access to Justice
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Derechoalderecho
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
The Faculty Lounge
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
Juris Novus
Jurisdynamics
Just Books
Law and Humanities Blog
Law and Letters
Law Librarian Blog
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian Theory
Media Law Blog
Mirror of Justice
The Moderate Voice
National Security Advisors
Opinio Juris
Point of Law
PrawfsBlawg
ProfessorBainbridge.com
Property Prof Blog
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
TeachPrivacy Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog


© Concurring Opinions

Powered by WordPress