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	<title>Concurring Opinions &#187; Civil Rights</title>
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		<title>Harassment, male privilege, and jokes that women just don&#8217;t get</title>
		<link>http://www.concurringopinions.com/archives/2011/11/harassment-male-privilege-and-jokes-that-women-just-dont-get.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/11/harassment-male-privilege-and-jokes-that-women-just-dont-get.html#comments</comments>
		<pubDate>Tue, 08 Nov 2011 22:14:12 +0000</pubDate>
		<dc:creator>Kaimipono D. Wenger</dc:creator>
				<category><![CDATA[Blogging]]></category>
		<category><![CDATA[Feminism and Gender]]></category>
		<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[feminism]]></category>
		<category><![CDATA[gender]]></category>
		<category><![CDATA[harassment]]></category>
		<category><![CDATA[male privilege]]></category>
		<category><![CDATA[online discussion]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=52624</guid>
		<description><![CDATA[<p>A familiar theme comes up frequently in internet discussions:  Women who complain about online harassment are just missing the joke.  </p>
<p>As an initial descriptive matter, it&#8217;s pretty clear that women and men are often treated differently in online discussion.  (Quick, name a case in which someone was harassed online.  Was the person you thought about a woman?  I thought so.)  </p>
<p>A few months ago, John Scalzi noted that:</p>
<p>In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn&#8217;t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects [...]]]></description>
			<content:encoded><![CDATA[<p>A familiar theme comes up frequently in internet discussions:  Women who complain about online harassment are just missing the joke.  </p>
<p>As an initial descriptive matter, it&#8217;s pretty clear that women and men are often treated differently in online discussion.  (Quick, name a case in which someone was <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1271900">harassed</a> <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1352442">online</a>.  Was the person you thought about a woman?  I thought so.)  </p>
<p>A few months ago, <a href="http://whatever.scalzi.com/2011/08/31/the-sort-of-crap-i-dont-get/">John Scalzi noted that</a>:</p>
<blockquote><p>In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn&#8217;t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ&#8217;s sake. . . </p>
<p>I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don&#8217;t get abused about how bad it is and how bad I am for posting about it. People don&#8217;t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it&#8217;s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don&#8217;t have to. I&#8217;m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I&#8217;m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.</p>
<p><em>It&#8217;s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends</em>.  (Emphasis added.)  </p></blockquote>
<p>That bears repeating:  The Internet is not the same experience for men as it is for women.  (No wonder women are <a href="http://www.nytimes.com/2011/01/31/business/media/31link.html?_r=1">numerically underrepresented in prominent internet discussion spaces</a>.)  </p>
<p>Why is the internet a different place for men than for women?  There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege.  <span id="more-52624"></span></p>
<p>Men build discursive spaces and discursive norms based on their own experience.  And for instance, in a male-built discursive space, a threat of sexual violence may be viewed by male participants as an obvious joke.  After all, the vast majority of men will never experience sexual violence in their lifetime.  (Fewer than 4% of men will be sexually assaulted.)  And so within the context of a male discussion on a World of Warcraft forum, for instance, it may seem entirely innocuous to use ideas of sexual violence to express one&#8217;s views on the game, or to use &#8220;rape&#8221; as a verb to describe one&#8217;s gameplay skills.  </p>
<p>Women as a group have a vastly different experience with the idea of sexual violence.  <a href="http://www.rainn.org/get-information/statistics/sexual-assault-victims">One in six women will be a victim of sexual assault during her lifetime</a>.  (Yes, some men are also sexual assault victims.  But the numbers are overwhelmingly female &#8212; about 90% of sexual assault victims are women.)  Rape is not an abstract idea or an obvious joke.  For thousands of women, it is an immediate and extremely painful reality.  </p>
<p>At one point during class I was talking about male privilege, and one student asked me to explain.  He noted that he is a man and he doesn&#8217;t feel particularly privileged.  In response, I noted my own privilege:  &#8220;When I leave the building late at night, I don&#8217;t give a second thought to my safety as I walk to my car.  If it&#8217;s ten at night, if it&#8217;s dark, I just assume that I&#8217;ll be fine.  But for many women, there is a constant thought process:  Do I find someone to walk me to my car?  Is it safe at this hour?  What are my options?&#8221;  And then I asked, &#8220;who has gone through that train of thought recently?,&#8221; and <em>every woman in the class raised her hand</em>.  And then they told stories:  About avoiding parts of town; about setting their schedule in certain ways; about making sure that they had someone to walk them out; about being on their guard, all the time.  The need to guard against the possibility of sexual assault is simply not part of most men&#8217;s everyday thought process, while it is a major part of many women&#8217;s everyday lived experience.  </p>
<p>And the fact that as a man I don&#8217;t have to spend mental energy thinking about protecting myself from sexual assault is itself part of male privilege.  One part of male privilege is that you never have to notice the ways in which you benefit from male privilege.  </p>
<p>The same goes for statements about violence in general.  In a male-dominated discursive space, it may be viewed as normal to make aggressive, threatening statements.  However, men&#8217;s and women&#8217;s experiences with violence are also vastly different.  <a href="http://www.dvrc-or.org/domestic/violence/resources/C61/">One in four women in the United States has been a victim of domestic violence</a>.  Suddenly, the joke about wanting to punch somebody else isn&#8217;t so funny.  </p>
<p>Women face these kinds of <a href="http://microaggressions.com/">microaggressions</a> on a daily basis, in all sorts of environments ranging from the workplace to the public sphere.  And they seem to be especially prevalent (surprise) in discursive spaces built by and dominated by men.  (It&#8217;s true that not all women struggle to express themselves in male-built discursive spaces, and some women develop real facility for the kind of bullying that sometimes passes for dialogue on the internet.  But, as <a href="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=463718">Danielle&#8217;s work makes clear,</a> many don&#8217;t.)  </p>
<p>And then when someone (almost always female) stands up against the male-constructed discursive norms in which threats of violence and sexual violence can be characterized as merely a joke, she is attacked for being oversensitive.  These attacks are another instance of denying of the reality of women&#8217;s experiences.  Male commenters discount women&#8217;s experiences as irrelevant if when those experiences don&#8217;t conform to male discussion norms.  Feminist blogs have a term for this:  <a href="http://shakespearessister.blogspot.com/2010/01/it-looks-like-were-going-to-have.html">Mansplaining</a>, where a male interlocutor explains to a female writer that she ought to ignore her own experience and bow before his superior wisdom.  </p>
<p>This discounting of women&#8217;s experience echoes equally problematic discussions that happen in the political arena, where male writers incredibly feel comfortable opining that<a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/herman_cain_s_conservative_defenders_are_going_totally_overboard.html"> sexual harassment probably doesn&#8217;t even exist, it&#8217;s all just something made up by overreacting women</a>.  For instance, here&#8217;s a <a href="http://www.nationalreview.com/corner/282007/first-thing-we-do-john-derbyshire">direct quote from prominent male conservative writer John Derbyshire</a>:  &#8220;Is there anyone who thinks sexual harassment is a real thing? Is there anyone who doesn&#8217;t know it’s all a lawyers&#8217; ramp, like &#8216;racial discrimination&#8217;? You pay a girl a compliment nowadays, she runs off and gets lawyered up.&#8221;  Yes, Derbyshire is arguing that sexual harassment does not exist.  Of course, this is a topic about which he has a vanishingly small likelihood of having any personal experience, since sexual harassment is overwhelmingly targeted at women.  But I&#8217;ve never personally seen a zebra; therefore, they probably don&#8217;t exist.  </p>
<p>Male privilege on the internet &#8212; or <a href="http://www.concurringopinions.com/archives/2011/01/bright-ideas-chamallas-and-wriggins-on-the-measure-of-injury.html">in law</a>, or in society at large &#8212; isn&#8217;t going away any time soon.  But let&#8217;s call it out, and let&#8217;s label it for what it is.  When male interlocutors tell a female writer that she is overreacting and just isn&#8217;t getting the joke, they are speaking from a starting place of male privilege.  They are assuming that casual threats of violence are something which can easily be shrugged off, and are ignoring the vast difference between lived experiences of men and women in America.  And they are denying the reality of something which, in all likelihood, they don&#8217;t even understand.  </p>
<p><a href="http://whatever.scalzi.com/2011/09/06/shut-up-and-listen/">Which Scalzi explains well in a follow-up post</a>:  </p>
<blockquote><p>Underlying all of that is the basic set of advantages I get unearned by being what I am, i.e., a white male. I became aware of this fact only over time, by having this advantage set pointed out to me repeatedly by those who are not what I am. Which is a bad deal for those folks, to be sure — the highest life crisis of everyone else in the world is not, in fact, making the White Male understand what he gets unearned.</p>
<p>I suspect in my case it would have been even more work for the rest of the world if I hadn’t had the experience of growing up poor, which meant that every time I saw or read someone who’d never been poor expound obliviously on what was really going on with poor people, I had to fight back the urge to beat them to death with a hammer. The experience of having to deal with people wealthsplaining poverty, and then trying to get them to listen to someone who had spent actual time in poverty, made it possible for me to more easily conceptualize the idea there were lots of subjects about which I had great potential to show my ass simply by opening my mouth.</p></blockquote>
<p>There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.  So sit back.  Calm down.  Pay attention.  Take notes.  Learn.  And stop denying the reality of women&#8217;s experience.  </p>
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		<title>Reviewing The Oral Argument in Hosanna-Tabor (Part Two)</title>
		<link>http://www.concurringopinions.com/archives/2011/10/reviewing-the-oral-argument-in-hosanna-tabor-part-two.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/10/reviewing-the-oral-argument-in-hosanna-tabor-part-two.html#comments</comments>
		<pubDate>Mon, 10 Oct 2011 20:07:57 +0000</pubDate>
		<dc:creator>Leslie Griffin</dc:creator>
				<category><![CDATA[Constitutional Law]]></category>
		<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[First Amendment]]></category>
		<category><![CDATA[Religion]]></category>
		<category><![CDATA[Uncategorized]]></category>
		<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[discrimination]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=51763</guid>
		<description><![CDATA[<p>Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.</p>
<p>Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese [...]]]></description>
			<content:encoded><![CDATA[<p><em><a href="http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/">Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC</a></em> is the first ministerial exception case to make it to the Supreme Court, even though the <a href="http://openjurist.org/460/f2d/553/mcclure-v-salvation-army">Fifth Circuit first recognized</a> the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s <a href="http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/">oral argument</a> in <em>Hosanna-Tabor</em>, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.</p>
<p>Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on <em><a href="http://law.justia.com/cases/michigan/court-of-appeals-published/2010/20100126-c287174-40-13o-287174-final.html">Weishuhn v. Catholic Diocese of Lansing</a></em>, which has a <a href="http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-760.htm">cert. petition</a> pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”</p>
<p>Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly <em><a href="http://law.justia.com/cases/michigan/court-of-appeals-published/2010/20100126-c287174-40-13o-287174-final.html">Weishuhn</a></em>] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and &#8212; and called the police and had them come interview a student without any communication with &#8212; with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it&#8217;s really quite different.”</p>
<p><span id="more-51763"></span>The serious problem with Alito’s question and Laycock’s answer is that we do not know the facts of <em>Weishuhn</em> or most cases dismissed under the ministerial exception. Ministerial exception cases are dismissed without trial; the facts are never developed. In <em>Weishuhn</em> the Michigan Court of Appeals spent the bulk of its opinion reviewing the facts of the workplace that determined whether schoolteacher Weishuhn was a minister. Indeed, the Michigan opinions merely record that Weishuhn was fired <a href="http://law.justia.com/cases/michigan/court-of-appeals-published/2010/20100126-c287174-40-13o-287174-final.html">“[a]fter a series of employment-related incidents, none of which involved the subject of religion.”</a> To find more facts about the case, you have to search other court documents and Michigan <a href="http://www.allbusiness.com/legal/trial-procedure-appellate-decisions/13929668-1.html">news accounts</a>.</p>
<p>Like any plaintiff, Weishuhn could lose her case on the facts. But the ministerial exception doesn’t allow her a day in court to win or lose her lawsuit. It dismisses her lawsuit before it can be litigated.</p>
<p>What is the answer to Justice Alito’s question? Justice Alito should be “rightly concerned about” the numerous retaliation cases similar to <em><a href="http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/">Hosanna-Tabor</a></em> in which ministers alleged they were fired or demoted for registering employment complaints with the EEOC. Or the <a href="http://www.ca10.uscourts.gov/opinions/09/09-5089.pdf">hostile work environment, sexual harassment</a> and <a href="http://caselaw.findlaw.com/us-9th-circuit/1380084.html">disabilities</a> lawsuits that did not make it to court. Other cases are factually closer to Alito’s question. State and federal courts have relied on the ministerial exception to dismiss cases in which a <a href="http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&amp;format=FULL&amp;sourceID=bdjgjg&amp;searchTerm=eOih.fWUa.aadj.ebgO&amp;searchFlag=y&amp;l1loc=FCLOW">Catholic school principal</a> lost her job after complaining to church authorities that her priest-supervisor had assaulted and battered her; a minister reported his bishops’ conversion of church funds and failure to pay income taxes to state authorities; two church staff members <a href="http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-6620.pdf">consulted with an attorney</a> about their employer’s possible violations of sex discrimination laws; a <a href="http://scholar.google.com/scholar_case?case=4273202752102979334&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr">university chaplain</a> complained about her school’s sexual harassment policy; another university chaplain reported <a href="http://www.law.virginia.edu/pells/employment%20law%204.nsf/b27c0930d012db3e85256748007cfdda/491488d77454f283852568cb005f7ffd?OpenDocument">student complaints of faculty sexual harassment</a> to administrators; and a minister told church authorities that her <a href="http://www.cobar.org/opinions/opinion.cfm?opinionid=4590&amp;courtid=1">stepfather</a>, a fellow minister, had sexually abused her as a child.</p>
<p>In each case we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito’s question, “you’re asking for an exemption so these issues can’t even be tried.”</p>
<p>That is how the ministerial exception has worked since its inception.</p>
<p style="text-align: center">__________________________________________</p>
<p>          <em>  <a href="http://www.law.uh.edu/faculty/lgriffin/">Leslie Griffin</a> holds the Larry &amp; Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of <a href="http://griffinlawandreligion.com/">Law and Religion: Cases and Materials</a> (Foundation 2d ed. 2010).</em></p>
<p>&nbsp;</p>
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		<title>The Obama DOJ and the Voting Rights Act</title>
		<link>http://www.concurringopinions.com/archives/2011/06/the-obama-doj-and-the-voting-rights-act.html</link>
		<comments>http://www.concurringopinions.com/archives/2011/06/the-obama-doj-and-the-voting-rights-act.html#comments</comments>
		<pubDate>Wed, 01 Jun 2011 13:54:04 +0000</pubDate>
		<dc:creator>Michael Pitts</dc:creator>
				<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Election Law]]></category>
		<category><![CDATA[Politics]]></category>
		<category><![CDATA[Constitutional Law]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=46214</guid>
		<description><![CDATA[<p>Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.</p>
<p>As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.</p>
<p>One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments [...]]]></description>
			<content:encoded><![CDATA[<p>Thanks to Gerard for the introduction and to all the folks at Concurring Opinions for providing me with this blogging outlet.</p>
<p>As Gerard mentioned, I write in the area of the law of democracy and the next 12-18 months is a busy season for those in this area—sort of the law of democracy equivalent of early April for tax preparers. The reason for all the commotion is the phenomenon of redistricting that commences soon after release of the decennial census statistics.<a rel="attachment wp-att-46213" href="http://www.concurringopinions.com/archives/2011/06/the-obama-doj-and-the-voting-rights-act.html/doj_seal_2"><img class="alignright size-thumbnail wp-image-46213" src="http://www.concurringopinions.com/wp-content/uploads/2011/06/doj_seal_2-150x150.jpg" alt="" width="150" height="150" /></a></p>
<p>One of the things to keep an eye on during this redistricting cycle will be how the Department of Justice under the Obama Administration enforces the Voting Rights Act. Because Section 5 of the Voting Rights Act requires a significant number of state and local governments to get approval for their redistricting plans from the federal government, the Obama Administration will have a lot of influence over how the Voting Rights Act gets enforced this time around.</p>
<p>In some ways, the Obama Administration has a tough job ahead if it. From a legal perspective, the Obama Administration has to be careful about what the federal courts might do with the Voting Rights Act if the Obama administration becomes too active for a conservative court. Indeed, in an opinion issued a couple of years ago, the Supreme Court telegraphed its skepticism about the constitutionality of the portions of the Act that allow for federal oversight over state and local election rules. From a political perspective, the Obama Administration might be under pressure to use every tool available to help its natural political allies—the civil rights groups and minority voters—achieve the goal of creating more districts that give minority voters control over who gets elected.</p>
<p><span id="more-46214"></span>What will the Obama Administration do? One can only speculate, but my guess is that there may be a divergence between how the Obama Administration enforces the Voting Rights Act at the state level and how the Obama administration enforces the Act at the local level. At the state level, I suspect the Obama Administration will be relatively hands-off—primarily signing off on whatever state plans come their way. Indeed, it wouldn’t surprise me if the Obama Administration was less interventionist in statewide redistricting plans this decade than the “W” Bush Administration was in the post-2000 redistricting cycle. On the local level, though, the Obama Administration is likely to be much more active in enforcing the Act and in pushing for the creation of more districts controlled by minority voters.</p>
<p>Why might the Obama Administration treat state and local redistricting plans differently? First, as a practical matter, federal disapproval of a state redistricting plan is more likely to generate the sort of litigation that could result in a very negative result for the Voting Rights Act. Local governments are less likely to take on the litigation giant known as DOJ than state governments are. Second, the conventional wisdom involving enforcement of the Voting Rights Act on the statewide and congressional level is that rigorous enforcement that creates more districts controlled by minority voters is harmful to the interests of the Democratic Party as a whole. If this is the dominant thinking among the political types in the Obama Administration then there will be a political incentive to lay off enforcement at the statewide level. Third, there will be a political incentive to more strongly enforce the Voting Rights Act at the local level because there is not the same sense that strong enforcement on the local level leads to negative consequences for the Democratic Party and because strong enforcement of the Voting Rights Act is something that Obama’s core constituency prefers.</p>
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		<title>An Appeal to Reason</title>
		<link>http://www.concurringopinions.com/archives/2010/10/an-appeal-to-reason.html</link>
		<comments>http://www.concurringopinions.com/archives/2010/10/an-appeal-to-reason.html#comments</comments>
		<pubDate>Wed, 13 Oct 2010 22:20:44 +0000</pubDate>
		<dc:creator>Kaimipono D. Wenger</dc:creator>
				<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Constitutional Law]]></category>
		<category><![CDATA[don't ask don't tell]]></category>
		<category><![CDATA[LGBT]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=35216</guid>
		<description><![CDATA[<p>In good news for LGBT rights, a federal court recently enjoined enforcement of the military&#8217;s &#8220;don&#8217;t ask, don&#8217;t tell&#8221; policy.  However, the government may appeal the decision; a recent New York Times article notes that &#8220;The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.&#8221;  </p>
<p>My colleague Bryan Wildenthal, who teaches constitutional law, disagrees, writing that:  </p>
<p>The article mistakenly claims, in discussing whether the Obama, Administration is &#8220;likely&#8221; to appeal the injunction, that: &#8220;The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.&#8221;</p>
<p>This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice   Department usually defends federal laws against [...]]]></description>
			<content:encoded><![CDATA[<p>In good news for LGBT rights, a <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/10/12/AR2010101203815.html">federal court recently enjoined enforcement of the military&#8217;s &#8220;don&#8217;t ask, don&#8217;t tell&#8221; policy</a>.  However, the government may appeal the decision; <a href="http://www.nytimes.com/2010/10/13/us/13military.html?">a recent New York Times article notes</a> that &#8220;The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.&#8221;  </p>
<p>My colleague <a href="http://www.tjsl.edu/directory/bryan-h-wildenthal">Bryan Wildenthal</a>, who teaches constitutional law, disagrees, writing that:  <span id="more-35216"></span></p>
<blockquote><p>The article mistakenly claims, in discussing whether the Obama, Administration is &#8220;likely&#8221; to appeal the injunction, that: &#8220;The Department of Justice, however, is required to defend laws passed by Congress under most circumstances.&#8221;</p>
<p>This statement erroneously confuses the issue of an appeal with the general practice (not a binding requirement) that the Justice   Department usually defends federal laws against court challenges. The  Department has already fulfilled any claimed duty it may have had to defend the law in this case. The government is under no duty whatsoever to appeal a judicial decision following a full and fair trial. The government makes strategic decisions all  the time about whether to appeal adverse rulings; it need not do so if it concludes a ruling was sound or an appeal would be a waste of time and resources. Both are true here.</p>
<p>If the Obama Administration chooses to needlessly prolong this litigation by fighting to reinstate the gay ban it claims to oppose, it should and will be held accountable for such an inexplicable waste  of taxpayer resources and such an outrageous attack on the rights of gay Americans who only wish to serve our country.</p></blockquote>
<p>This sounds right to me.  The administration has already given this flawed policy all the defense that it deserves.  By choosing not to appeal the lower court&#8217;s ruling, the administration would finally close an unfortunate chapter, and in the process send a message of support for the rights of all Americans, including the LGBT servicemen and women who risk their lives to serve their country.  </p>
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		<title>What would LBJ do?</title>
		<link>http://www.concurringopinions.com/archives/2009/10/what-would-lbj-do.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/10/what-would-lbj-do.html#comments</comments>
		<pubDate>Sun, 01 Nov 2009 01:58:44 +0000</pubDate>
		<dc:creator>Spencer Waller</dc:creator>
				<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Current Events]]></category>
		<category><![CDATA[Health Law]]></category>
		<category><![CDATA[History of Law]]></category>
		<category><![CDATA[Politics]]></category>
		<category><![CDATA[Race]]></category>
		<category><![CDATA[filibuster]]></category>
		<category><![CDATA[Harry Reid]]></category>
		<category><![CDATA[health care]]></category>
		<category><![CDATA[LBJ]]></category>
		<category><![CDATA[Lyndon Johnson]]></category>
		<category><![CDATA[Majority Leader]]></category>
		<category><![CDATA[Master of the Senate]]></category>
		<category><![CDATA[Robert Caro]]></category>
		<category><![CDATA[Senate]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=21724</guid>
		<description><![CDATA[<p>I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate.  This is the third volume of his-yet unfinished biography of the life of LBJ.  This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.</p>
<p>All three volumes focus on Johnson’s ambition for power and leadership.  Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design.  Even after Senators were directly elected, the longer terms, the rules of the Senate, the [...]]]></description>
			<content:encoded><![CDATA[<p>I am almost done with <a href="http://www.amazon.com/Master-Senate-Years-Lyndon-Johnson/dp/0394528360">Robert Caro’s <em>Master of the Senate</em></a>, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate.  This is the third volume of his-yet unfinished biography of the life of LBJ.  This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.</p>
<p>All three volumes focus on Johnson’s ambition for power and leadership.  <em>Master of the Senate</em> begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design.  Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.</p>
<p>Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President.  First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power.  Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.</p>
<p>These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957.  Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960.  Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support.  To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.</p>
<p>Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition.  Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible.  The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made.  The Southerners  opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely.  The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era.  Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.</p>
<p>Does this remind you of anything currently going on in the Senate?  We are seeing the same type of struggle now play out in the Senate over health care reform.  Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding.  Some bill, any bill, will probably ultimately pass.  Obviously <a href="http://reid.senate.gov/">Harry Reid</a> is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.  </p>
<p>But the issues of power, leadership, and strategy remain.  Is some bill better than no bill?  Is this the first step to more comprehensive reform down the road?  Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking?  While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?</p>
<p>***<br />
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October.  I look forward to the new group of guest commentators for November including my <a href="http://www.luc.edu/law/faculty/zimmer.html">Loyola-Chicago colleague Mike Zimmer.</a></p>
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		<title>You&#8217;ve lost that Loving feeling</title>
		<link>http://www.concurringopinions.com/archives/2009/10/youve-lost-that-loving-feeling.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/10/youve-lost-that-loving-feeling.html#comments</comments>
		<pubDate>Thu, 15 Oct 2009 22:54:21 +0000</pubDate>
		<dc:creator>Kaimipono D. Wenger</dc:creator>
				<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Constitutional Law]]></category>
		<category><![CDATA[Family Law]]></category>
		<category><![CDATA[Loving v. Virginia]]></category>
		<category><![CDATA[marriage]]></category>
		<category><![CDATA[Race]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=21362</guid>
		<description><![CDATA[<p>An incredible story in today&#8217;s news:</p>
<p>A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.</p>
<p>&#8220;I&#8217;m not a racist. I just don&#8217;t believe in mixing the races that way,&#8221; Bardwell told the Associated Press on Thursday. &#8220;I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.&#8221;</p>
<p>Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, [...]]]></description>
			<content:encoded><![CDATA[<p>An incredible <a href="http://www.google.com/hostednews/ap/article/ALeqM5jy_z-Zo4fvJEf2TK1LCiiPIe9NDwD9BBPMH00">story in today&#8217;s news</a>:</p>
<blockquote><p>A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.</p>
<p>&#8220;I&#8217;m not a racist. I just don&#8217;t believe in mixing the races that way,&#8221; Bardwell told the Associated Press on Thursday. &#8220;I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.&#8221;</p>
<p>Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.</p></blockquote>
<p>It&#8217;s 2009, the Obama era, and some folks (a JP!) still haven&#8217;t gotten the memo on <em>Loving v. Virginia</em>.  Mind-boggling.  </p>
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		<title>The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid</title>
		<link>http://www.concurringopinions.com/archives/2009/10/the-civil-procedure-civil-rights-class-action-connection-to-the-chicago-olympic-bid.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/10/the-civil-procedure-civil-rights-class-action-connection-to-the-chicago-olympic-bid.html#comments</comments>
		<pubDate>Tue, 06 Oct 2009 16:55:19 +0000</pubDate>
		<dc:creator>Spencer Waller</dc:creator>
				<category><![CDATA[Civil Procedure]]></category>
		<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Constitutional Law]]></category>
		<category><![CDATA[Culture]]></category>
		<category><![CDATA[History of Law]]></category>
		<category><![CDATA[Race]]></category>
		<category><![CDATA[Supreme Court]]></category>
		<category><![CDATA[Chicago]]></category>
		<category><![CDATA[class actions]]></category>
		<category><![CDATA[Olympics]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=21034</guid>
		<description><![CDATA[<p>By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games.  Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last.  I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.</p>
<p>A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil [...]]]></description>
			<content:encoded><![CDATA[<p>By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games.  Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last.  I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.</p>
<p>A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses.  A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon.  The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus.  The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games. </p>
<p> The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work.  At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant.  In the depths of the depression, a white home owner sold to a middle class black family.  The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.</p>
<p>On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in <a href="http://www.oyez.org/cases/1940-1949/1947/1947_72/">Shelley v. Kramer</a>.    But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law.  The covenant was to take effect only when 95% of the owners had executed it.  An action in the Illinois courts held that the requisite percentage of owners had signed the covenant.  Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.</p>
<p>By now, you may have figured out that I am describing the landmark case of <a href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&amp;vol=311&amp;invol=32">Hansberry v. Lee</a>.  In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result).  As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law.  The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.</p>
<p>To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play <a href="http://search.barnesandnoble.com/A-Raisin-in-the-Sun/Lorraine-Hansberry/e/9780679755333.">A Raisin in the Sun</a> by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood.  For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in <a href="http://www.amazon.com/Civil-Procedure-Stories-Kevin-Clermont/dp/1599413477/ref=sr_1_1?ie=UTF8&amp;s=books&amp;qid=1254847868&amp;sr=8-1">Civil Procedure Stories</a>.    </p>
<p>I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few.  But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week.  If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.</p>
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		<title>Knowledge of Jim Crow events:  A quick, informal survey</title>
		<link>http://www.concurringopinions.com/archives/2009/05/knowledge-of-jim-crow-events-an-informal-survey.html</link>
		<comments>http://www.concurringopinions.com/archives/2009/05/knowledge-of-jim-crow-events-an-informal-survey.html#comments</comments>
		<pubDate>Tue, 19 May 2009 06:15:41 +0000</pubDate>
		<dc:creator>Kaimipono D. Wenger</dc:creator>
				<category><![CDATA[Civil Rights]]></category>
		<category><![CDATA[Race]]></category>
		<category><![CDATA[jim crow]]></category>
		<category><![CDATA[survey]]></category>

		<guid isPermaLink="false">http://www.concurringopinions.com/?p=15991</guid>
		<description><![CDATA[<p>I&#8217;m curious as to what level of knowledge people have of some important Jim Crow events.  If you&#8217;ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.   Feel free to do so anonymously or pseudonymously.  I&#8217;m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense.</p>
<p>1.  Demographic questions</p>
<p>a.  What is your approximate age?</p>
<p>b.  What is your gender?</p>
<p>c.  What is your race?</p>
<p>d.  What is your level of education?</p>
<p>2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have &#8220;no knowledge of the event,&#8221; &#8220;little knowledge of the event,&#8221; (you [...]]]></description>
			<content:encoded><![CDATA[<p>I&#8217;m curious as to what level of knowledge people have of some important Jim Crow events.  If you&#8217;ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.   Feel free to do so anonymously or pseudonymously.  I&#8217;m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense.<span id="more-15991"></span></p>
<p>1.  Demographic questions</p>
<p>a.  What is your approximate age?</p>
<p>b.  What is your gender?</p>
<p>c.  What is your race?</p>
<p>d.  What is your level of education?</p>
<p>2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have &#8220;no knowledge of the event,&#8221; &#8220;little knowledge of the event,&#8221; (you have heard it mentioned, but don&#8217;t know what it&#8217;s about), &#8220;some knowledge,&#8221; or &#8220;lots of knowledge.&#8221;  (Yes, it&#8217;s not a great methodology, but it&#8217;s enough for this purpose.)</p>
<p>Okay, here goes.  Please state what you consider your level of knowledge of:</p>
<p>a.   The Colfax Massacre (a.k.a Colfax Riot)</p>
<p>b.  The Wilmington Race Riot (a.k.a. Wilmington Insurrection)</p>
<p>c.  The St. Louis Race Riot (a.k.a. East St. Louis Riot)</p>
<p>d.  The Tulsa Race Riot.</p>
<p>e.  The Rosewood Massacre (a.k.a. Rosewood Race Riot)</p>
<p>f.  The Greensboro Massacre.</p>
<p>That&#8217;s it.  Thanks!</p>
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