The Watcher Cat

The Watcher Cat

Saturday, August 31, 2013

TEC in Texas: A Setback

I should note the disappointing opinion of the Texas Supreme Court reversing summary judgment in its favor against the breakaway diocese. As I have been myself under the weather, I won't do my usual exegesis, but will cannibalize, contextualize and expand my own comments from earlier today over at Thinking Anglicans, which quoted A.S. Haley, a fellow-lawyer and the "Anglican Curmudgeon" in the blogosphere. Mr. Haley concluded, not without reason, that the prospects on remand for Bishop Iker and his faction were pretty good:
Thus, Texas law will control the issue of who were the trustees of the Fort Worth diocesan corporation on the relevant dates when crucial votes were taken. And that should bode very well for Bishop Iker's chances on remand.

Likewise, the issues of title are to be resolved by examining the various deeds under Texas secular law -- and that, too, should work in Bishop Iker's favor. Title to all of the parish properties is held by the diocesan corporation. Thus if Bishop Iker's trustees are the proper trustees in office, the property will follow the corporation.
Against the temptation of assuming that Mr. Haley's commitments made him unreliable here, I noted that while it is certainly true that A.S.Haley is on "the other side" and is no doubt rejoicing in this ruling--which I most emphatically am not,he does try to keep his legal analyses grounded in the facts and law. While I often disagree with Mr. Haley on the desirability of an outcome, and even on the merits, his opinions are professional, and well informed.

The Texas Supreme Court decision is deplorable, but, in view of the composition of the US Supreme Court now, I wouldn't put it past them to modify Jones v. Wolf, 443 U.S, 595 (1979) to the benefit of the more conservative faction.

Unfortunately, TEC may be paying a price here for its policy of not litigating these matter, canonically or in civil court, at the first act to withdraw property rights from the national church. We'll see how the case comes out on the remand, but the Texas Supreme Court certainly seems to be signaling a win for the breakaway action, assuming they prove the facts they allege.

Now, pre-guessing the results of a merits trial based on a summary judgment decision is hazardous at best. I think Mr. Haley correctly identifies the factors that will militate in favor of the breakaway diocese--a result which I would deplore. However, I think that there are factors he doe snot review--or rather, that he assumes have been shunted to the side by the Texas Supreme Court decision--which should mandate the opposite outcome.

Jones v. Wolf expressly names as a means of securing the property for the "faction loyal to the hierarchical church" the adding of a provision in the hierarchical church's governing documents in almost the exact words of the Dennis Canon. The opinion then states that "the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form" such as those previously listed by the Court. No further requirement appears in the opinion. See 443 U.S. at 606. The full passage goes as follows:
They [members of the ecclesial body] can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

I see nothing in the opinion to suggest any higher showing beyond such a canon's existence in the terms set out in Jones. As to the Texas Supreme Court opinion, it seems to me to be going beyond what Jones allowed as the appropriate role for neutral principles, by presumptively treating the trust as freely revocable, which does violence to the Jones concept that the "burden involved in taking such steps will be minimal." Id. If the trust must comply with the many local variants of formalities required of ordinary trusts, not cloaked by First Amendment protection, then the burden is not minimal, as promised by the Court in Jones.

C.R. Seitz made an interesting argument from the last portion of the most quoted statement from the case: "provided it is embodied in some legally cognizable form." Under Texas law, Dr. Seitz suggested, the Supreme Court had strongly hinted that, under neutral principles of Texas law, the Texas Supreme Court had determined that the trust had been properly revoked, and therefore was no longer legally cognizable. (I'm expanding on his argument, but believe I am doing so faithfully.)

Now, I'd like to disavow this. The problem is that the following section of the Jones opinion creates an ambiguity as to whether state laws that do not recognize the amendment to the church's governing documents are constitutional. I believe that the specific example given in the majority opinion necessarily implies that such a device is sufficient, but I understand his contrary reading. I think, as a matter of legal interpretation, it is the less correct.

That is for two reasons. First, the justification of neutral principles boiled down to, as quoted above, the "minimal" burden it would create on religious bodies to resolve the issue would be rendered nugatory if states could introduce varied and possibly even contradictory requirements of trust law that could lead to conflicting resolutions and even legally contradictory decisions.

Second, on reflection, there seems to me to be a lurking choice of law issue. While choice of law has often been assumed to be a precursor to a "home job" (the favoring of the party who is local to the court deciding the dispute), some scholarship suggests this is overstated. It seems to me to assume that the state law for each local parish or diocese's governs in the case of a nationwide church seems to me to assume a pretty big question the answer to which is not self-evident.

So, no, I am not as sure as is Mr. Haley that the case will come out in favor of the breakaway diocese--though I must stress that his prognostication may well be correct, and is a considered professional opinion, albeit one I am far than pleased with.

Some folks think that getting the case heard by the U.S. Supreme Court might be a reasonable plan, but in view of the personnel changes since Jones, I am unable to be as sure as I would like that Jones would be upheld and properly applied by the current Court.

Good Kitteh News, Part II

My little friend Elspeth P. Kitten is doing much better indeed. La Caterina has been giving her fluids, shots, syringe feeding her food, drugs and vitamins. I've been helping, but while La C has the makings of a pretty fair vet tech I get by on one gift only--I having had Elpers (as we call her) since she was only weeks old, I can, if I make myself perfectly serene (not easy, mind you!), can hypnotize her, and then get the food into her. I'm clumsy, but she relaxes if I'm relaxed, and a murmur little expressions of loving nonsense at her. (With fluids La C gets the stuff into her while I hold her in place and mesmerize her.)

This afternoon, Elpers rewarded me with a snuggle, and, after she ate her lunch--what has made her sick is not eating, so the fact that we don't have to force-feed her every meal is just a wonderful sign--she was feeling well enough to jump from the bed onto the mantlepiece above it that we use as a headboard. This is something she often does when in health, so, again, a good sign.

Miles to go before we sleep, but....the auguries are good.

Thursday, August 29, 2013

Um, the Court Case Could Be The Least of Your Worries...

I'm genuinely trying not to be crass here, but on earth is this?
Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.


What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws....


Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”

A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”
Yeah, I wouldn't be so much worried, if I was among the good people of Missouri, about a court challenge to the constitutionality of the bill. My worries would stem from the first attempted arrest of a federal official seeking to execute federal law. Because that sounds awfully like insurrection to me. In fact, Section 332 of Title 10 of the U.S. Code seems to agree:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
And section 333:
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
(My italics)

Is it constitutional? Of course; it's called the Supremacy Clause.

Seriously, guys; not so much of a plan.

Wednesday, August 28, 2013

A Voice of Youth

When I was a boy, just 14, I came very close to seeing Linda Ronstadt and Kevin Kline in "The Pirates of Penzance"; after waiting much of the day (with a first-rate picnic, mind) to be admitted, our little group (chaperoned by the aunt of my best friend in those years) just failed to make it into the show. I think I would have liked it enormously, and Ronstadt herself:

(Hell, I enjoyed the excerpt so much I watched the whole production tonight, so...)

Years later, a girlfriend of mine in college, who loved Ronstadt's voice, introduced me to her 70s music. These two stood out for me:

And this, which immediately followed "Long, Long Time" on the record (yes, dammit, record):

Love the contrast between those two songs, even now.

So I am most sincerely sorry to read that she is suffering from Parkinson's Disease, and now "can't sing a note."

She gladdened many with her music, and her gifts will be long remembered and enjoyed.

Tuesday, August 27, 2013

The Joy of the Used Bookstore

Across the gulf of ideological disagreement, let me salute and agree with Gracy Howard's paean of praise to Capitol Hill Books, one of my favorite away-game bookstores. I am also extremely fond of Second Story Books, that rarity of a used bookshop where I have never walked out empty handed. My last visit there, when I was down in DC for a work conference, I found a really lovely modern reprint of the Aubrey Beardsley edition of Le Morte D'Arthur, bound nicely, and at full size.

That's what I love about used bookstores that can't be replaced by online shopping: serendipity. The random finding of, in this case, something I've long desired, but stopped looking for. I'd given up.

And then fate dropped it into my happy, unresisting hands...

Now if fate would find me that complete set of Trollope...

Monday, August 26, 2013

The Scarlet Letter: A is for Activist

Justice Ruth Bader Ginsburg tells it like it is:
With the departure of Justice John Paul Stevens in 2010, Ginsburg became the leader of the four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide, 5 to 4, with the usual suspects,” she said.

The last two terms, which featured major decisions on Obama’s health care law, race, and same-sex marriage, were, she said, “heady, exhausting, challenging.”

She was especially critical of the voting rights decision and the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’ power to regulate interstate commerce.

In general, she said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”

The next term, which begins Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.

The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation, but Ginsburg, who dissented, did not sound optimistic.

“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”
Justice Ginsburg has it right, as I have argued recently, with this past term (October 2012 term) being particularly egregious.

While I agree with Justice Ginsburg on this, though, some perspective is necessary; the sheer number of invalidations has not radically increased, according to Lee Epstein, who writing in 2012, concluded that, overall, while liberal justices have grown more reluctant to strike down conservative laws or liberal laws the converse holds with in terms of the number of cases striking down laws deemed "liberal" the "right wing of the Court ... has grown somewhat more opportunistically restraintist (activist)" and less willing to strike down conservative laws. But numbers do not tell the whole story, and Ginsburg is correct that the right wing of the Court has aggressively overturned precedent and disregarded ordinary mores of constitutional construction in recent years to advance its policy agenda than any Court in my lifetime.

Sunday, August 25, 2013

The Bounty of History

I saw in today's Times that Tom Christian, known as the "Voice of Pitcairn," the South Pacific Island settled by the mutineers of HMS Bounty, died in July.

I must admit that one of my favorite books when I was a boy was The Bounty Trilogy by Nordoff and Hall, comprising the three novels Mutiny on the Bounty, Men Against the Sea, and Pitcairn's Island. I had my 1935 copy, bought used from Barnes and Noble's Sales Annex when I was about 12 or so, until two years ago, when, realizing it was falling apart, I bought one of the same vintage at the Schroon Lake Library Book Sale (which I missed this year, because my vacation plans turned into fine, fine dust). The books were the beginning of a lifelong fascination with the story of the Bounty, and I have a small trove of books relating to it. (A really first rate recent one is Caroline Alexander's account). For years I wanted to go to Pitcairn, and if I ever do hit the South Seas, why, that'll be the prime destination.

The history of the place is, fascinating, a small insular community surviving for over two hundred years, with sporadic contact with the outside world, occasional efforts to resettle elsewhere, and a secluded, peaceful existence. The basic pattern was described by Mark Twain:
Nearly a hundred years ago the crew of the British ship Bounty mutinied, set the captain and his officers adrift upon the open sea, took possession of the ship, and sailed southward. They procured wives for themselves among the natives of Tahiti, then proceeded to a lonely little rock in mid-Pacific, called Pitcairn's Island, wrecked the vessel, stripped her of everything that might be useful to a new colony, and established themselves on shore. Pitcairn's is so far removed from the track of commerce that it was many years before another vessel touched there. It had always been considered an uninhabited island; so when a ship did at last drop its anchor there, in 1808, the captain was greatly surprised to find the place peopled. Although the mutineers had fought among themselves, and gradually killed each other off until only two or three of the original stock remained, these tragedies had not occurred before a number of children had been born; so in 1808 the island had a population of twenty-seven persons. John Adams, the chief mutineer, still survived, and was to live many years yet, as governor and patriarch of the flock. From being mutineer and homicide, he had turned Christian and teacher, and his nation of twenty-seven persons was now the purest and devoutest in Christendom. Adams had long ago hoisted the British flag and constituted his island an appanage of the British crown.

To-day the population numbers ninety persons--sixteen men, nineteen women, twenty-five boys, and thirty girls--all descendants of the mutineers, all bearing the family names of those mutineers, and all speaking English, and English only. The island stands high up out of the sea, and has precipitous walls. It is about three-quarters of a mile long, and in places is as much as half a mile wide. Such arable land as it affords is held by the several families, according to a division made many years ago. There is some live stock--goats, pigs, chickens, and cats; but no dogs, and no large animals. There is one church-building used also as a capitol, a schoolhouse, and a public library. The title of the governor has been, for a generation or two, "Magistrate and Chief Ruler, in subordination to her Majesty the Queen of Great Britain." It was his province to make the laws, as well as execute them. His office was elective; everybody over seventeen years old had a vote--no matter about the sex.

The sole occupations of the people were farming and fishing; their sole recreation, religious services. There has never been a shop in the island, nor any money. The habits and dress of the people have always been primitive, and their laws simple to puerility. They have lived in a deep Sabbath tranquillity, far from the world and its ambitions and vexations, and neither knowing nor caring what was going on in the mighty empires that lie beyond their limitless ocean solitudes. Once in three or four years a ship touched there, moved them with aged news of bloody battles, devastating epidemics, fallen thrones, and ruined dynasties, then traded them some soap and flannel for some yams and breadfruit, and sailed away, leaving them to retire into their peaceful dreams and pious dissipations once more.
The population is down to 51 now, according to Tom Christian's obituary in the NYT; the obituary is fascinating reading both for Mr. Christian's pivotal role in the community, but in updating the Pitcairn story to the Twenty-first Century. A rather nice grace note:
Mr. Christian went about his life, tending his garden, working his radio and continuing to travel and lecture.

At a talk in London in 2005, he had the joy of catching up with an Englishman he first met in 1971.

That November, a cargo ship on which the Englishman was traveling stopped at Pitcairn and, disembarking, he was introduced to Mr. Christian.

The Englishman was Maurice Bligh, the great-great-great-grandson of Capt. William Bligh.

From that day forward, Mr. Bligh and Mr. Christian were fast friends.

Wednesday, August 21, 2013

Military Justice

This has me conflicted:
A military judge sentenced Pfc. Bradley Manning on Wednesday to 35 years in prison for providing more than 700,000 government files to WikiLeaks, a gigantic leak that lifted the veil on American military and diplomatic activities around the world.The sentence is the longest ever handed down in a case involving a leak of United States government information for the purpose of having the information reported to the public. Private Manning, 25, will be eligible for parole in about seven years, his lawyer said.

In a two-minute hearing on Wednesday morning, the judge, Col. Denise R. Lind of the Army, also said that Private Manning would be dishonorably discharged and reduced in rank from private first class to private, the lowest rank in the military. She said he would forfeit his pay, but she did not impose a fine.


The materials that Private Manning gave to WikiLeaks included a video taken during an American helicopter attack in Baghdad in 2007 in which civilians were killed, including two journalists. He also gave WikiLeaks some 250,000 diplomatic cables, dossiers of detainees being imprisoned without trial at Guant√°namo Bay, Cuba, and hundreds of thousands of incident reports from the wars in Iraq and Afghanistan.
From Soonergrunt at Balloon Juice:
I think that once all the factors are taken in, he’ll serve somewhere around 12 to 15 years total, including the 1310 days (+/-) of pretrial confinement credit he is due. Which, given what I know (or think I know) about the case, seems to me to be fair.
I anticipate that he’ll get a sentence reduction from the Army Clemency and Parole Board, and possibly something by the Convening Authority before he orders the sentence executed. I base these assumptions on the statements of knowledgeable people I trust. Defense painted a compelling picture of a troubled young man who made a series of bad decisions, and while I happen to agree with much of that, it’s not an excuse for his behavior, and there must be consequences. If he had driven drunk and killed somebody, we wouldn’t be having this conversation.
Honestly I hope that whatever help or treatment he needs will be given to him, and that he can find a way to live with himself in the world
That's about the size of it for me--not the opinion on the length of the sentence; not my field, where Soonergrunt has demonstrated that he knows his stuff in his coverage--I believe that a stiff sentence was warranted, but not one that would obliterate Manning's chance to build a life in toto.

Now, granted, I'm an old defender--Legal Aid Society Criminal Appeals Bureau--but while I think that Manning's violation of the flaw, and of the confidence of a military he voluntarily joined warrant the sentence he received (and indeed could have been far more severely treated), I'm not comfortable with this case, for a couple reasons. First, the fact is whistleblowers raise questions of governmental accountability and free speech, and while Manning is a very imperfect example of one, some of his disclosures and his motivation, seem to fit.

Second, the fact that Manning was kept on active duty despite serious problems of fitness to serve, prior to the leaking. Allowing a very troubled young soldier to continue to have access to classified information when that soldier is flying psychological distress flags and providing no support? a serious mitigating factor, to my mind.

Law ran its course. Justice...well, we'll see. The jury is still out on that one...

Tuesday, August 20, 2013

A Pause

So, things have been a bit crazy at Anglocat Central, where one of the three cats I brought into our home has been very sick. I found her as a kitten, abandoned with her sister on a tree stump outside of the cottage I was renting in the winter of 2001.

She early accepted me as her parent, and has, her whole life, curled in my lap and kneaded my leg as a comfort and relaxation method. I believe she found it almost as efficacious as I have over the years.

Two weeks ago, she became a bit withdrawn, and I, busy with life, assumed she was in a mood. Then last Tuesday, when we realized how scrawny she had become, La Caterina made a vet appointment. Elspeth--the cat's name--was jaundiced, with serious liver shutdown. The cause was unclear, but could have been lymphoma. Today we were told it does not appear to be, and that while Elpers (as I call her) is not yet out of the woods, we may hope that she will be in a few weeks, with proper care.

On our way home in the car, she started wriggling, and wanted out of the bag. I took the photo above, and it shows her with her usual, "What are you humans doing?" look of exasperation.

I am greatly relieved.

But not shocked. All her prayers must count for something, along with my own.

Monday, August 19, 2013

The Man Who Wasn't There

The former Archbishop of Canterbury, Rowan Williams, participated in an exchange in which he has managed to raise a few hackles:
Christians in Britain and the US who claim that they are persecuted should "grow up" and not exaggerate what amounts to feeling "mildly uncomfortable", according to Rowan Williams, who last year stepped down as archbishop of Canterbury after an often turbulent decade.

"When you've had any contact with real persecuted minorities you learn to use the word very chastely," he said. "Persecution is not being made to feel mildly uncomfortable. 'For goodness sake, grow up,' I want to say."

True persecution was "systematic brutality and often murderous hostility that means that every morning you wonder if you and your children are going to live through the day". He cited the experience of a woman he met in India "who had seen her husband butchered by a mob".

Lord Williams's years as archbishop of Canterbury were marked by turbulence over the church's stance on the role of gay priests and bishops; gay marriage; and homophobia in the wider Anglican communion – with many members of the church expressing disappointment at a perceived hardening in its position on homosexuality.

Asked if he had let down gay and lesbian people, he said after a pause: "I know that a very great many of my gay and lesbian friends would say that I did. The best thing I can say is that is a question that I ask myself really rather a lot and I don't quite know the answer."
Of course, Dr. Williams retracted that portion his remarks which might have upset conservatives :
n suggesting that some people need to "grow up" before talking about the persecution of Christians in the UK or US (Report, 16 August), I had in mind those who offer what I think unduly sensationalised accounts of the situation – and, to a lesser extent, those in the public eye who have to put up with a certain amount of routine attack. I realise in retrospect how offensive the words might sound to those who suffer bullying for their convictions or whose faith presents them with real and painful dilemmas in their professional lives. I want to make it clear that I'd regard urging such people to "grow up" as insulting and insensitive to a degree, and apologise for giving any impression to that effect.
This really is a re-play of the time he publicly declared that, because of the sex abuse crisis in the Catholic Church--well, here it is in context:
"I was speaking to an Irish friend recently who was saying that it's quite difficult in some parts of Ireland to go down the street wearing a clerical collar now.

"And an institution so deeply bound into the life of a society suddenly losing all credibility – that's not just a problem for the church, it is a problem for everybody in Ireland."
Mark the sequel; within a week of the interview, Williams apologized.

Similarly,Dr. Williams had not once but twice allowed the name of Jeffrey John to go forward for a bishopric, only to back off in the face of criticism.

I fail to see how Dr. Williams' bold pronouncements advance debate when he fails to stick to them for any appreciable period of time. If he does not believe them, he should not say them; if he does believe them, he should not cave in the face of adverse reaction. In each instance, Dr. Williams' inconstancy to his own words raised a problem quite separate from whether his utterances or actions were appropriate on any of the given occasions. It raised the question of whether his positions were thought out and considered, and then lightly abandoned, or whether he just made rash statements of which he then repented. Either way, a large part of the frustration he caused his critics, both left and right, was that his own convictions became ever harder to discern.

Wednesday, August 14, 2013

Null Set?

Leo McKern, as Rumpole of the Bailey, on jury nullification:

I thought of that scene in reading Professor Jenny Carroll's interesting article, The Jury's Second Coming (2012). Professor Carroll argues that jury nullification constitutes an act of legal interpretation by the community itself through its representatives on the jury--the "conscience of the community" in fact, not merely in civics class rhetoric. She sees it as allowing the community to interpret the law in a manner that is consistent with its mores, preventing undue rigidity, and as an opportunity for expansion of democratic principles beyond the formal processes of government.

These arguments are well taken, certainly they resonate with the historical roots of trial by jury, but they do leave out some unpleasant historical baggage.

It is, of course, a tricky fact in the law that juries can nullify, by declining to convict even when the facts support no other verdict. In the United States, it has often been associated with acquittals of "all-white juries during the civil rights movement of the 1960s acquitting the admitted lynchers of African American males from the post-Reconstruction-era South." Id. at 676-677, n. 103. Although she acknowledges this problem, I thin it's fair to characterize her conclusion on the matter as dismissive: "Admittedly, there is a risk that may apply the law arbitrarily in some cases. But this risk appears no more threatening than that a renegade legislative, executive or judicial branch will unfairly create or apply the law." Id. at 695.

I have some intellectual sympathy for jury nullification--or, rather, the right of an advocate to explicitly apply to the conscience of the community for mercy, as Rumpole in the clip does, and as the Supreme Court permitted the federal courts to proscribe in Sparf & Hansen v. United States (1895). But the problem of bias is a deep and intractable stain on its practice in the United States, and I must confess I find Professor Carroll's efforts to minimize the harm done by bias driven nullification to be rather glib, and ultimately unpersuasive. She makes no real effort to address the harm that can be wreaked by a dominant bloc in the community enforcing differential application of facially neutral laws to the disadvantage of non-majority blocs within the community. As this is the dominant paradigm of jury nullification in the United States' history, this failure is telling. This may be a case where Holmes' aphorism that "[u]pon this point a page of history is worth a volume of logic" should govern.

Saturday, August 10, 2013

Othering the Poor

Charles Blow has a strong column in today's NYT. While I agree with his political analysis, though, I think the most important point he makes transcends partisan politics and deserves to be looked at separately:
But another problem may be more broad-based: the way that many Americans look at the poor with disgust.

As Susan Fiske, a Princeton professor who has studied people’s attitudes toward the poor for more than a decade, told me on Friday:

“The stereotypes of poor people in the United States are among the most negative prejudices that we have. And people basically view particularly homeless people as having no redeeming qualities — there’s not the competence for anything, not having good intentions and not being trustworthy.”

Fiske’s research shows that people respond not only to the poor and homeless with revulsion, but they also react negatively to people they perceive as undocumented immigrants — essentially anyone without an address.

If some people’s impulse is to turn up a nose rather than extend a hand, no wonder we send so many lawmakers empty of empathy to Congress. No wonder more people don’t demand that Congress stand up for the least among us rather than on them.

As Fiske so aptly put it: “It seems like Washington is a place without pity right now. A town without pity.”
I am reminded of Mark Twain, specifically of his creation Pap Finn in The Adventures of Huckleberry Finn. Pap Finn is--well, here's a quick summary for you:
Pap Finn in a drunken tirade complains about the U.S. government. Now Pap is what is called “poor white trash.” He is the laziest man on earth. He lives on the charity of others, and if he is forced to earn a dollar he catches a fish on a trot-line—the laziest form of fishing—and trades it for whiskey. (A trot-line consists of a fishing line stretched across a stream with several baited hooks dangling into the water. It is a form of passive fishing. The “fisherman” simply “runs” the trotline every morning by unhooking the catch overnight.) Huck describes Pap’s skin as “fish belly white” because, like a carp or a catfish, he is also a scavenger or bottom-feeder. After he steals Huck and they flee to a cabin across the Mississippi River, he forces Huck to “run” the trotline—the laziest man on earth doesn’t even go to the trouble to unhook the fish.
Here is the drunken tirade:
“Oh, yes, this is a wonderful govment, wonderful. Why, looky here. There was a free nigger there from Ohio—a mulatter, most as white as a white man. He had the whitest shirt on you ever see, too, and the shiniest hat; and there ain't a man in that town that's got as fine clothes as what he had; and he had a gold watch and chain, and a silver-headed cane—the awfulest old gray-headed nabob in the State. And what do you think? They said he was a p'fessor in a college, and could talk all kinds of languages and knowed everything. And that ain't the wust. They said he could vote when he was at home. Well, that let me out. Thinks I, what is the country a-coming to? It was ’lection day, and I was just about to go and vote myself if I warn't too drunk to get there; but when they told me there was a State in this country where they'd let that nigger vote, I drawed out. I says I'll never vote agin. Them's the very words I said; they all heard me; and the country may rot for all me—I'll never vote agin as long as I live. And to see the cool way of that nigger—why, he wouldn't a give me the road if I hadn't shoved him out o' the way.”
I know, reading that language, so casually used--it's shocking today. But note the point Twain is making--Pap Finn occupies the lowest position of the socio-economic hierarchy. But for his race. He has someone to look down on, even though the someone is immeasurably more educated, accomplished and worthwhile than he is. His virulence stems in part from the fact that if he can't look down on the "P'fessor in college," then Pap must confront the truth: He's at the bottom of the scale.

I bring this up, because here's what I think is embedded in the research of Fiske and in Blow's column: We live in a time of profound economic insecurity. Really, we do. And don't look for any sudden improvement. The worldwide shift toward defined benefit retirement plans, and its concomitant negative effects mean that economic insecurity will stretch on for decades, most likely, as (from the first link) "the transition from DB to DC plans in private sector pensions is shifting investment risk from the corporate sector to households. Households are therefore becoming increasingly exposed to financial markets and retirement income may be subject to greater variability." (Love the use of "maybe" there; the underlying assumption of DC that the individual can invest their portion of the retirement fund as skillfully and as intelligently as, y'know, the people whose profession it is to do that--why, how could that go wrong? See Yglesias at the second link for more).

What we have, therefore, is a world in which anxiety, both social and economic, have become dominant threads in the lives of many Americans. And one way people deal with profound anxiety is by convincing themselves that the system works for those who work hard and play by the rules (to use every politician's favorite cliche) even when it is clear that it does no such thing--that there is a significant level of randomness and arbitrariness built in. And to do that, it helps to "other" those who do not make the cut--as Pap Finn "othered" African-Americans, free as well as slave, as all too often, we "other" the poor.

I volunteered in a homeless shelter run by my church for some years. Those who were our guests came form all walks of life--some life-long professionals who had medical issues, some people who had just had appallingly bad luck, and some who made terrible mistakes, but had no safety net but that which we provided. They were us.

And, if we do not pay attention to where our society is headed, instead of rationalizing the problems we have away, we may all too easily be them.

Friday, August 9, 2013

The Common Good and the ACA

What does this say about us as a society?
Karen Black an actress whose roles in several signature films of the late 1960s and ’70s included a prostitute who shared an LSD trip with the bikers played by Dennis Hopper and Peter Fonda in “Easy Rider” and a waitress unhappily devoted to the alienated musician played by Jack Nicholson in “Five Easy Pieces,” died on Thursday in Los Angeles. She was 74.

The cause was complications of cancer, her husband, Stephen Eckelberry, said. Ms. Black’s battle with ampullary cancer, a rare form similar to pancreatic cancer, became public in March when she and Mr. Eckelberry sought contributions on a fund-raising Web site to pay for an experimental treatment.
Think about that a second. An actress important enough to rate an extended obit in the NYT had to crowdsource her cancer treatment. The ACA should, if it isn't completely subverted by the efforts to sabotage it, ameliorate this problem to a large extent, but here's my question to all the ACA opponents: What's your alternative? Because Karen Black was famous and successful, and this is what illness did to her. What's the solution for the non-famous, non-successful people? We hear a lot about "replace and repeal" but replace with what?

The problem is that the "market"for medical care cannot be free or for that matter an efficient market because of the disparity of bargaining power between the person who needs treatment or will die, and those providing treatment. Worse,the use of insurance distorts the market even further, because the insurer's is incentivized to delay or deny meritorious claims while profiting off premiums.

While the Affordable Care Act is far from perfect--I'm a supporter of single payer, myself--it in fact improves the situation of many:
ObamaCare Pros: New HealthCare Benefits

ObamaCare gives Americans access to hundreds of new health care benefits. There are too many to count, and would make for a pretty unbiased (looking) list. However these benefits,(aside form ones mentioned elsewhere on this page, include: No annual or lifetime limits, children can stay on their parents plans to 26, FDA can approve more generic drugs driving prices down and breaking monopolies and protections against discrimination for gender, disabilities and domestic abuse. Check out our ObamaCare Health Care Reform Timeline for a comprehensive list.

ObamaCare Pros: preventive and Wellness Services

Millions of Americans now have access to preventive and wellness services with no out of pocket costs. The specific benefits can be found on our Benefits of ObamaCare page.

ObamaCare Pros: Consumer Protections

ObamaCare regulates insurance, referred to as the "rate hike" review, enacts the "80/20" rule that makes health insurance providers spend at least 80% of their income on health and marketing expenses or must be returned as rebates and being dropped from coverage for being sick or denied from a preexisting condition are all out the window in the next few years. ObamaCare has a long list of protections that are protecting your new rights, including a mandate on fast food restaurants to display calories to promote wellness.

ObamaCare Pros: Cost Assistance for the Middle Class and Small Business

Those under 400% of the federal poverty level (Roughly 88k for a family of 4) could save up to 60% on their premiums via tax credits and subsidies on the health insurance exchanges. Small businesses with less than 25 full time employees have this advantage as well.

ObamaCare Pros: Medicaid Expansion

Those under 133% of the poverty level will (in states that have not opted out of Medicaid Expansion) will be able to be covered now that ObamaCare is expanding Medicaid to low income Americans who were left without enough money to afford insurance and too much to qualify for Medicaid.

ObamaCare Pros: Improvements to Medicare

ObamaCare does a lot for Medicare. For the most part these things are great and have already benefited tens of millions of seniors. ObamaCare closes the Medicare drug 'donut hole', provides improved preventive and wellness services with no out of pocket cost and reforms aspects of Medicare to improve overall care for seniors.

ObamaCare Pros: Quality Over Quantity

Doctors and hospitals will be moved to a system where they are rewarded for providing quality care, instead of being reward for quantity. May of the provisions to enforce this punish high turnover rates, this however has some unintended consequences. Some doctors and health care institutions are getting hit hard from this, although the overall reform will create a better health care system for all Americans.

ObamaCare Pros: Oversight Committees

159 new boards, agencies and programs are created by ObamaCare to oversee spending and to ensure ObamaCare is working correctly. Though sometimes listed as a con, having oversight on a reform of this size is mandatory to ensure to program works. It's important to note that ObamaCare doesn't ration healthcare, rather it regulates the health insurance industry who have been rationing our health care for years. Your health care is still between you and your doctor and determined by your private insurance.
Again, none of this is to say that the ACA is perfect, but it's a damn sight better than what we had before it.

I'm for allowing some room for market forces. In the UK, you can "go private" and pay a doctor or a clinic or a hospital. You have to pay your taxes, and remain entitled to be covered by the NHS, but if you have the resources and want to spend them on private care, live and be well.

The difference is that under the UK system, those who cannot afford to do that also have a chance at living and being well.

[NB: This post builds on an online discussion I had earlier today with several friends, two of whom offered critiques of my first blush analysis, and helped me sharpen my own thinking. Which is not to say that we ended up on the same page, though we all moved substantially closer by the end. I want to thank them for the engagement, which forced me to think the issues through a little more closely than I had done at first.]

Thursday, August 8, 2013

Who's Missed Opportunity?

Right, wading into the waters of a classic internet controversy, here: high flammability, low stakes. By which, I mean, the casting of 55 year old Peter Capaldi as the Twelfth Doctor in Doctor Who. Now, my first reaction was to cheer the show for shaking up the trend toward younger actors, and going back to the eccentric older uncle-vibe of the first four incarnations of the character.

Not that I haven't enjoyed David Tennant and Matt Smith--quite the contrary, they each took the role in unexpected directions. For example, here's Smith using his very youthfulness to express the depth of the anger the very old soul in that body is capable of feeling:

These two younger Doctors in succession have both worked. But three? Probably a bit too much of sameness about it. So when they skewed more old school, and also got a terrific actor in the process, yeah, sign me on.

Plus, we got all these great "Malcolm Tucker is Doctor Who" trailers of which the finest is, to my mind this one:

But then I began noticing a boomlet of criticism, founded on the notion that Steven Moffatt had blown it, by casting yet another white British male in the part. From Zap2it to Jennifer Finley Boylan in The New York Times, a consensus of dissident voices have lamented a lost opportunity. In Ms. Boylan's words:
Mr. Capaldi is a capable actor, and come his debut, I’ll be right there with my teenage boys, drinking Mountain Dew and cheering him on. But imagine if we were cheering for Helen Mirren instead, or for the comedian Miranda Hart, or for Emma Watson, the former Hermione Granger. If the Doctor can regenerate into any form, it seems, oh, just a little dispiriting, that time after time he invents himself as a white British male.


But unlike presidents or popes, we may not get that many more chances at a glass-shattering Doctor. According to long-held Doctor Who mythology, the character’s 13th regeneration could be his last. A few years back, the BBC overturned that theory, suggesting that the character is immortal. Regardless, even the most die-hard fans can’t expect the show to last forever. As the producers think about whom they want to take on the role next, they should keep in mind the way people’s hopes are lifted when they see someone breaking the glass ceiling, even when it’s for something as seemingly trivial as a hero on a science-fiction program. Equal opportunity matters — in Doctor Who’s universe as well as our own.
Now, that's not nothing. And, I agree that the right woman could excel as the Doctor--the brief period when Helen Mirren evinced a desire to play the role? My automatic response was that was just awesome, and they should cast her forthwith. Likewise, I could see Gina Bellman in the part as well--her work in Leverage and in Moffatt's earlier show, Jekyll, convinced me that her take on the part would be credible, fun, and compelling. (Alex Kingston would've been a natural, too, but she's been too integral to the show as Dr. River Song to play another part, let alone the lead, alas.) And Doctor Who has strong women deep in its DNA; Verity Lambert was the very first show runner, from 1963-1965, and companions from Jacqueline Hill as Barbara Wright to Romana and beyond gave as good as they got. So, a female Doctor could be a great thing for the show, and poses no continuity violation (see: the Corsair).

Same for a non-white Doctor. Not sure about all the Idris Elba booming, though, even if he was the non-white actor who turned down the part; he's a great actor, but seems to me to be rather too straightforwardly a leading man for the Doctor; who underestimates the formidableness of any Idris Elba character? I could more easily see Paterson Joseph or Lenny Henry, who's been a fave of mine since Chef! in 1993-1996. And, in fact, non-white artists have played a huge role in Doctor Who from the very beginning; the very first episode was directed by Waris Hussein, and the show pioneered race-blind casting as early as the Hartnell era.

So, I get the frustration. The show could work with a non-male, non white lead, so why not do it? Shatter a glass ceiling, change up the world a bit, and rock-and-roll.

Moffat's explanation for why not a woman doesn't tell us very much; he said merely "It's absolutely narratively possible [that the Doctor could be a woman] and when it's the right decision, maybe we'll do it...It didn't feel right to me, right now. I didn't feel enough people wanted it." Now, the second part seems pretty thin to me. But Moffatt has also said--well, here, you read it:
Asked whether the list of potential actors to play the Doctor was a short one, Moffat told The Mirror: “Yes. The list went ‘Peter Capaldi’. It was a very short list.”

He said: “I happen to know he’s a big fan. There’s something very seductive about an utterly brilliant, arresting looking leading man actor- one of the most talented actors in Britain- who you happen to know is a big fan of the show.”
Yet he had previously not chosen Capaldi.

But maybe something about the actor has generated a new take on the character, a new story Moffatt feels impelled to tell. I hope so. For now, like Ms. Boylan, I'm prepared to enjoy Capaldi's run, just as I have enjoyed Smith's. But I also look forward to the day the glass ceiling is shattered by the TARDIS careening through it.

Saturday, August 3, 2013

The Imp of the Perverse

In today's anecdotes, I do not come out particularly well, but, well, that's blogging for you.

So, la Caterina likes on a Saturday evening to listen to Oscar Brand's Folk Song Festival, a show with which I have a love-hate relationship (actually, more of a love-snicker) relationship. Now, don't get me wrong, some of the stuff he plays is quite good, but there's a fair amount of curiosities and some stuff that just hasn't dated well. And then there are some songs that rouse in me what Edgar Allen Poe famously diagnosed as the Imp of the Perverse.

You don't know the term? Let me give you an example. A few years ago, a good friend of mine, who will remain nameless here, forevermore (hey, I'm explaining a concept from Poe, remember?), attended a revival of a dark, brooding drama by Leo Tolstoy, at the Mini Theater (aptly named; the small house made what happened patently obvious to the entire audience). We were in the first or second row, dead center.

Now, here's how the New York Times described the play:
This deeply religious play follows a man who has lost his way: a philandering servant, Nikita (played by Mark Alhadeff as a somber brooder) conspires to kill his boss, marries the man’s wife and then sleeps with his own stepdaughter. And he’s just getting started. Tolstoy doesn’t search for psychological explanations for this behavior or bother to posit that all of us have the capacity for depravity. He seems instead to blame desperate poverty and greed.

Translation is always tricky, and while Mr. Platt doesn’t shy from the ugliness of these characters — he describes violence with a frankness that may shock some people — he is unable to escape the stilted, museum-piece feel of the play. Nikita’s noble father, Akim (Steve Brady), seems more like a collection of tics than a real character, and some of the exposition will remind audiences that the playwright was better known as a novelist.

Then again, there’s so much drama (adultery, drunkenness, poisoning) on the march toward redemption that there’s no time for Chekhovian discussion, character development or any ambiguity. Tolstoy just keeps increasing the stakes of the immorality until he reaches a climax with a powerful, unsparing scene in which Nikita, prodded by his mother, Matryona (played with great √©lan by Randy Danson), kills his newborn child.

It is a jolting moment, one that brings to mind Edward Bond’s baby-killing scene in “Saved,” written almost 80 years later.
Now, I am sorry, but I saw that play, and my friend were guffawing openly all through that "powerful, unsparing scene," which was the most melodramatic fustian I have seen since D.W. Griffith retired. And you can write me off as a philistine, if you will, but my friend? She's a Literature MA with an abiding love of Russian Literature and Tolstoy in particular, and she was howling, if anything, more loudly than I was. I swear to you, I thought for the first half hour or so that the thing was a spoof. When I realized it wasn't, I was too far gone--it made the whole thing funnier.

Quite understandably, the cast glared their hatred at us, as tears streamed down our cheeks and, oh, the horror, we kept laughing at the "jolting moments" being enacted before us. The whole show struck as some Vincent Price Grand Guignol black comedy, a la Theater of Blood. I am quite sure that we spoiled that performance, but we just couldn't help ourselves--no words of mine can convey how ludicrously overblown the self-impressed reveries of the various characters came across, and every time we regained control, and swore to behave, another Monty Python moment sent one or the other of us up again.

Which brings us back to Folk Song Festival.

One night, Oscar cues up this little gem:

Now, this strikes me funny--riotously so, I have to confess--because of its striking similarity in arrangement, progression, and overall gestalt, to "Secret Agent Man." No, really:

So, I'm imagining Patrick McGoohan as the narrator, enacting (60's action show style) the metaphorical struggle between the two wolves for la C's amusement, and generally being a grinning ass over the whole thing. The very next day, a good friend of mine is giving a talk, and making a point about human nature, and illustrates it with the story of the two wolves.

I was, of course, doomed.

Thursday, August 1, 2013

First As Tragedy, Second as Farce

Karl Marx is famously quoted as glossing Hegel's dictum that a"ll great world-historic facts and personages appear, so to speak, twice [by adding that] He forgot to add: the first time as tragedy, the second time as farce."

Anthony Weiner's political fall from grace may not have quite measured up the first time around, but the farcical elements are certainly predominating this time around. Between Carlos Danger (which has led to an internet meme allowing the reader to obtain a similar nom de Twitter), to his spokesperson's obscenity laced tirade against a former intern, the Weiner campaign has gone where, previously, Uncle Duke has gone. (the "Nothing to Lose" campaign that promised Duke would be "the ferret in the pants of government" can still be viewed.)

But this? Performance Art:
Jimmy McMillan, a perennial candidate whose “The Rent Is Too Damn High” anthem and political party has made him a household name, rolled out his support for Mr. Weiner and urged the scandal-scarred candidate to stay in the race.

“I told him don’t quit,” Mr. McMillan told Politicker in an interview. “We didn’t talk about politics, I just told him clearly, ‘You do not quit. You can’t stand the heat in the kitchen, you shouldn’t have got in this race.’”

Mr. McMillan said he and the former congressman “met accidentally in a restaurant in Harlem called IHOP.” The brief breakfast that the two pols shared was enough to convince Mr. McMillan that Mr. Weiner was the right candidate to win the Democratic primary. Indeed, he said that if he wasn’t running for mayor on his own line, he would have applied to become Mr. Weiner’s campaign manager.

“We all are freaky. He just exposed his freaky-ism in the wrong way,” Mr. McMillan said of Mr. Weiner’s sexually explicit photos. “I think Anthony needs someone like me to tell him, ‘Don’t be afraid to go get help if you need it.’”
Oh, as usual dear.

If your don't know who Jimmy McMillan is, uh, here:

Yeah, he really did run for governor; here he is with Andrew Cuomo, in an iconic moment: