Category: Civil Rights

From Gradgrind to Glaeser

Economic analysis is often illuminating, but sometimes it just seems to provide cover for new Gradgrinds to ply reductionist utilitarianism. Case in point: the NYT Magazine has a glowing profile of Edward Glaeser, an economist from Harvard. As a patrician, provocateur, and polymath, Glaeser is reported to have single handedly revived the field of urban economics. Here are some of his prescriptions (as reported by Jon Gertner):

1) Don’t rebuild much of New Orleans– just let hard-pressed residents move somewhere else (and expect our exceedingly eleemosynary Congress to cut checks to each resident for $200,000, since that’s what they were planning to spend on infrastructure!). And don’t try to revive struggling rust-belt cities like Detroit, either.

2) “Car-based cities” are great; they “enable residents to buy cheaper, bigger houses,” and “the average car commute is about 24 minutes; on public transportation, it is around 48 minutes.”

I have a few questions for Glaeser. First, does his model value stability at all? Let’s say that this process of dispersion in search of better jobs leaves very few nuclear families with extended families nearby to help with child and elder care. Is the resultant need to hire day care workers and visiting nurses a boon to the economy, because unpaid labor to that end wouldn’t count in the GDP? Just how parsimonious are his models?

I have some personal experience with the “exodus from the Rustbelt” that Glaeser finds so appealing…

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Reparations within the Rule of Law

At the upcoming reparations conference, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:

Kaimipono David Wenger

Reparations within the Rule of Law

The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.

The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding society’s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.

The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.

Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people – descendants of an original harmed group – who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.

Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population – Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slavery’s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.

Given this background, reparations serve as a form of atonement – a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law – resentment, distrust of law, a perception that law is beholden only to power – will continue to negatively impact society and undermine faith in the rule of law.

Societal expression of remorse for rule of law breaches – coupled with concrete steps to ameliorate the harm – is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.

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Paper Discovers Trove Of Unseen Civil Rights Photos

Thurgood Marshall.JPG Today the Birmingham News published a treasure trove of photographs documenting the Civil Rights movement. These absolutely remarkable photos, featuring Martin Luther King, Thurgood Marshall (pictured at right in a group that included Constance Baker Motley), and other significant individuals and events from that era, can be accessed here. While some appeared at the time, many of these images have not been published previously. According to the account in today’s News, the photos were found accidentally:

[The discovery was] the result of research by Alexander Cohn, a 30-year-old former photo intern at The News. In November 2004, Cohn went through an equipment closet at the newspaper in search of a lens and saw a cardboard box full of negatives marked, “Keep. Do Not Sell.”

The accompanying article includes interesting interviews with News photographers and others discussing why many of these images never saw the light of day. One photographer recalled that “the editors thought if you didn’t publish it, much of this would go away.”

The News has changed over the years naturally. In 1988, it offered a tempered self-critique of its civil rights coverage saying: “The story of The Birmingham News’ coverage of race relations in the 1960s is once marked at times by mistakes and embarrassment but, in its larger outlines, by growing sensitivity and acceptance of change.” That remains a fair characterization of the broadsheet. The editorial board is iconoclastically conservative. It is anti-abortion and solidly Republican but unafraid to confront ideological inconsistency and social injustice. For example, the News recently reversed course on the death penalty, calling for its abolition. Why?

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The Meaning of “Well Settled Law”

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Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.'”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

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Injustice in Michigan

Via Howard B., I read this report on a recent case before Michigan state trial court Judge Michael Martone. According the article, back in May ’05, high school teens were caught drinking at their prom. The school sanctioned them, but they were also sent to Judge Martone on charges of being a minor in possession of alcohol (a misdemeanor). Judge Martone apparently said from the bench (as the students were leaving, perhaps?): “There’s to be no alcohol [in the future.]”

Needless to say, the students went to college, drank, and classically, posted photos of themselves drunk on the web. The pictures were captioned, and some of the captions slurred Martone.

Judge Martone self-googled and found the page. I can’t seem to, which suggests something about our respective googling skills. “”They made a mockery of the legal system,” he said. “I had to do something.” He reported the students to their probation officers and the police, and had the students arrested for contempt of court. The charge: “disobeying [Martone's] direct order not to consume alcohol.” The article tells us what happened next.

Martone began questioning [the student who created the internet page about it], why she created it, and what some of its symbols and profane words meant.

In an exchange of about 45 minutes, Martone reminded her to be honest, as [she] first evaded some questions [she was pro se], then admitted that her Web site did use profanity aimed at Martone, and that she had a drinking problem.

He sentenced her to 30 days in the Oakland County Jail. She was marched off in handcuffs, to spend Christmas and New Year’s Day behind bars.

Martone then sentenced [another student] to 15 days. The two become cellmates.

If this version of the facts is accurate, this story strikes me as deeply troubling on a number of levels.

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Is Smoking Child Abuse?

BBC (among others) reports that California will treat second hand smoke as a form of toxic air pollutant. I assume this will empower a new gang of regulators to join the “war on smoking.” I wonder about the effects of these sorts of decisions on smoking parents.

Courts have begun to confront the argument that smoking around children is a form of child abuse. This claim appears to have surfaced repeatedly in child custody battles, but I don’t think it has become a common basis for state intervention in families. With findings like those in California, I suspect that more states will seek to intervene when parents smoke at home. State involvement can sometimes take a positive form – counseling, for example – but it can also result in removing children into foster care. When the household problem is smoking, I’m not sure this is a good thing.

Second hand smoke is bad for kids. For children with special health problems, such as asthma, it can be devastating. So there is little question that when parents smoke at home, they are doing harm. This might suggest that smoking ought to be considered abuse per se. But should it?

First, I’m uncertain whether the health effects are serious enough to constitute abuse. Parents do lots of crappy things to, and around, their kids. Does smoking cross the line? Second, I don’t totally trust state intervention in families. When the household situation is dire, a state must step in to protect children. Perhaps I’m a cynic, but the repeated evidence of incompetence and neglect by some of these family agencies makes me nervous about their involvement except where truly necessary. Third, I’m not convinced that we want mandatory abuse reporters – doctors, psychologists, social workers and (in some states) lawyers – to report every parent who admits smoking around her child. Mandatory reporting damages relationships with clients, reducing trust and, ultimately, the effectiveness of professional services. This damage is justified only when it prevents truly serious harms.

Then there is the slippery slope problem. Once smoking is viewed as child abuse, prosecutions are likely to follow. And in some jurisdictions, convicted child abusers are subject to Megan’s Law notification.

I don’t have a problem with parents introducing evidence of smoking in disputes over custodial and visitation arrangements. In these cases, the child will typically end up in the custody of at least one parent. I think smoking around kids is a bad thing. Smoking around a child with respiratory problems seems clearly abusive. But should smoking around a healthy child be the basis for removing her from parental custody? I don’t have the answer, but I’m not happy with either result.

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Teaching Away the Right to Privacy

I’ve never liked the Supreme Court’s Vernonia School District line of cases. These decisions authorize public schools to do random drug testing of students participating in extracurricular activities, without the slightest suspicion that the children ever used drugs. You don’t want to be tested for drugs? Don’t do extra-curriculars. Of course, extra-curricular activities are important in many ways, not least in terms of college applications. For many kids, then, there is little choice but to submit to these searches.

Schools seem to have taken up the Court’s offer. I haven’t found hard data on the number of schools using random drug tests but locally – in the Birmingham area – I know the “top three” school districts (judged by test scores and affluence) have such programs. (And two of the three test for tobacco use, in addition to drugs and booze.)

Why don’t I like these schemes? A few reasons. The first one is related to the right of privacy. I don’t think the government should be in the business of searching people in any fashion – let alone sorting through their urine – without suspicion of misconduct. Although I’m not fond of other suspicionless searches the Court has authorized – for example, railroad employess may be tested after a rail accident – at least these testing programs have a narrower scope. Any policy that samples every child in extra-curricular activities – that is, the vast majority of students in these high powered schools – comes awfully close to imposing universal testing.

There are other reasons I don’t like these policies. I think they reflect outsourcing of parental responsibility. You want to test your kid for drugs? Go ahead. But it’s inappropriate for a school to impose these intrusions on all children, including those whose parents don’t buy into a surveillance-as-parenting approach. (Parents can decline to have their kids tested, in most districts, but the children still don’t get to be on the debate team.) I’m also not confident that random testing works – though I’m less certain on this point.

Watching the privacy debates of the last few weeks – domestic spying, Google subpoenas, etc – I’ve come upon yet another reason to dislike Vernonia. I suspect that suspicionless testing programs train children to believe they don’t have a right to personal privacy.

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Playing the Illegal Alien Card

HalePicBio.jpgFor the past few weeks, I’ve been following a local Birmingham story on undocumented aliens. Mike Hale, the Jefferson County sheriff, has decided to join the battle against illegal immigration. He announced that his office will create a database of undocumented immigrants found in the county. According to the Birmingham News , “any illegal immigrant who comes in contact with deputies – whether as an offender, a county jail inmate or even a victim – is fair game for the database.” The data will be shared with the federal Bureau of Immigration and Customs Enforcement. (Local sheriffs apparently don’t have jurisdiction to arrest individuals for violation of immigration laws.)

Notwithstanding the need to maintain border control, this expansive policy strikes me as troubling.

First, I worry that it will stifle crime reporting by undocumented crime victims. This is bad all around. The victims cannot rest safe because the culprits are still loose. And since some offenders repeat their crimes, the policy will leave these folks free to target others – documented and undocumented alike. The sheriff’s office is apparently aware of this risk, but simply does not care. When asked about the danger of deterring crime reporting, a department spokesman said: “I hope that’s not a byproduct of this, and if it is, it’s unfortunate. However, we believe the greater good is having information on the people who are in our country illegally.”

Another problem: how will sheriffs know when they come into contact with an undocumented alien? The obvious approach would be to demand that anyone who is not fluent in English, or looks “foreign,” to prove her citizenship or produce a visa. This is pretty unappealing, but as far as I can tell, Hale hasn’t suggested a better idea. Sadly, policies that target minority populations fit too neatly into an Alabama political tradition. Birmingham Blues captures the views of some progressive Alabamians in this regard. I wonder if this sort of policy is common, or is simply a trial balloon.

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Immigration Appeals in the Times

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Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I’m surprised at the weakness of the responses to Posner’s opinion offered by the BIA’s defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”

Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.

“The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal,” Mr. Cohn said. “They’re only seeing a fraction of the cases, and only a small fraction of those give rise to criticism.”

I think this response is misleading.

First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn’s intuition that only the “bad cases” for the government end up on appeal. But I can’t imagine that Cohn’s equation of the failure to appeal with being “correctly decided” has much basis in known fact. It might be that Cohn is correct. But I’d assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.

Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner’s opinion revealed, in the Seventh Circuit in 2005 the government’s win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.

Third, Cohn’s rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the “worst” cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That’s why we get statements like this one from Posner’s opinion: “the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board’s and the Immigration Court’s control, we do no know, though we note that the problem is not of recent origin.”

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Property for sale: Great views, large lots, no Blacks.

Sound like a real estate ad from 1955? Try 2005. As reported in the Salt Lake Tribune:

Eagle Mountain is a burgeoning Utah County community, full of young families, new homeowners and white people. Lots and lots of white people.

The racial breakdown of Eagle Mountain was listed as a selling point on the Web site of home builder Bigg Homes. The site also included this comparison among others: “Black race population percentage significantly below state average.” “Significantly below” was in bold.

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The ad — which seems to be a likely violation of the Fair Housing Act — has been pulled. The developer is apparently “considering” firing its web designer, who put the information on the site.

The information is apparently accurate and drawn from state demographic data — Eagle Mountain has a black populace of 0.6 percent, significantly lower than the state average.

Economists have argued — Gary Becker, for example — that workplace discrimination is inherently inefficient and will eventually be driven out of the market. (There is a great back-and-forth between Posner and Donohue on the topic, from several years back). However, the Eagle Mountain case highlights a fact that no one seems to talk about much (except for Richard Epstein) — that there is in fact a market for discrimination. That’s one of the descriptive ideas in Epstein’s book Forbidden Grounds, and it’s absolutely right.

I disagree with Epstein’s subsequent normative argument — that since there is a market for discrimination, it should be allowed to exist — but he’s absolutely right to note that there is indeed a market for discrimination. People will sometimes pay for discrimination. They’ll do it in their housing — see Eagle Mountain — and they’ll do it in their employ. This is one reason why the optimistic Becker model — market forces will end discrimination — is incomplete.

As for the Eagle Mountain example, I’m curious as to how much this particular developer’s site reflects community norms in Eagle Mountain. I know one person from Eagle Mountain, and I’m going to drop him a line and see what he thinks of this. (I should note that he’s a very nice person, and is not, that I can tell, at all racist.)