Law

A couple weeks back the estate of Jack Kirby reached a settlement with Marvel, the day before the Supremes were set to take the case. This was a surprise, as the Kirbys were 0-2 in the courts, to that point. I hadn’t paid attention but I figured their case was weak, although they had my sympathy. I had read stuff like this from early NY Times articles:

WHEN the Walt Disney Company agreed in August to pay $4 billion to acquire Marvel Entertainment, the comic book publisher and movie studio, it snared a company with a library that includes some of the world’s best-known superheroes, including Spider-Man, the X-Men, the Incredible Hulk and the Fantastic Four.

The heirs of Jack Kirby, the legendary artist who co-created numerous Marvel mainstays, were also intrigued by the deal. Mr. Kirby’s children had long harbored resentments about Marvel, believing they had been denied a share of the lush profits rolling out of the company’s superheroes franchises.

Marvel made out like bandits, treating Kirby badly. But that’s not a legal argument.

What made Marvel blink at the last minute? The terms of the settlement can’t be revealed, so it’s hard to say.

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The first part of our symposium on Joseph Carens’s The Ethics of Immigration is now concluded. While we wait for Joe to compose his reply, here’s an index of the contributions:

• Chris Bertram Some worries about Carens’s democratic consensus
• Ryan Pevnick The theory of social membership
• Brian Weatherson Movement within and between states
• Kenan Malik Communities, social anxiety and open borders
• Kieran Oberman Right arguments, wrong order
• Michael Blake Social membership and territorial rights
• Patti Lenard Democratic equality and internal movement
• David Owen On social membership
• Speranta Dumitru Is Carens still advocating open borders
• Sarah Fine The argument from democratic principles
• Phillip Cole On method
• Jo Shaw So what does The Ethics of Immigration tell us about the European Union?

Update: Joe Carens’s replies in two parts: Part One and Part Two.

So why did the organisers of this symposium also offer the opportunity to a European Union lawyer – not a theorist mind, but a vanilla lawyer – to make a comment on Joseph Carens’ magisterial book on The Ethics of Immigration? It should have been obvious that I could add nothing to the excellent contributions by other normative theorists who are commenting directly on these aspects of Carens’ work. So it must have been for some other reason.

It was presumably in order to provoke a reflection upon the peculiarities of the EU’s own combined system of internal soft borders (‘free movement’) and external hard borders (‘Fortress Europe’, some might say) in the light of Carens’ arguments about the ethical demands of states in relation to borders and migrants. To that extent, my reflections are less about the book than about the issues which the book is helping me to think through – and for that I am very grateful to Joseph Carens for his wonderful text and also to the organisers for indulging my preferences.
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As I am certain every one of you knows, the extraordinarily talented actor Philip Seymour Hoffman died recently of a heroin overdose in New York City. In what is a very heart-wrenching aspect of the story, he had been clean and sober for over 20 years before relapsing onto prescription painkillers and booze a few months back (people say.) He had been going to 12-Step meetings even close to the time of his death, and he’s leaving three young children behind. A total bummer.

What’s weird is that the police decided to go on a manhunt for the specific people who sold the drugs he OD’ed on, and then arrest those people in particular. Why? People must die of heroin overdoses in NYC all the time, right? More than one a day, surely. Does it matter especially much if a famous person OD’s on your drugs? As opposed to, say, a struggling single mother, or a homeless person? They first tested his body to see if the heroin had been laced with fentanyl, a pharmaceutical heroin analog, which has caused deaths in nearby Pennsylvania. It hadn’t. He had just gotten good old regular drugs, from his dealer, who did him a solid there. The internet briefly hyperventilated about how there were 50 bags of heroin found in his apartment. This also seemed stupid. He’s rich and famous–he’s supposed to walk out in the freezing cold to Avenue C every single day? The man can’t stock up? Isn’t there a polar vortex or something?
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ETA: It has occurred to me only just now that this post would have better had it been titled “America: rRuck Yeah!”

You have probably already read about the horrible chemical spill in West Virginia last Thursday, which the New York Times has a stunner headline: Critics Say Chemical Spill Highlights Lax West Virginia Regulations. Oh, really? (You can read lots of good posts on this and previous environmental and labor disputes at Lawyers, Guns and Money–you can start looking at Erik Loomis’ posts as he also has great series along the lines of ‘this day in labor history’.)

300,000 were left with poisoned drinking water (coming out of the tap!) after specialty chemical-producer Freedom Industries spilled some 5,000 gallons of 4-Methylcyclohexane Methanol into the Kanawha Valley’s water treatment intake near Charleston. The water remains clear although poisonous, but smells helpfully like licorice. Also, boiling it doesn’t help.

Obviously this logo is but a minor blot on the company’s record vs. its actual malfeasance but uh…it’s a crime against good design, since my daughters looked at it and asked, “what’s rReedom Industries?” Also really looks as if it should have the smoking twin towers photoshopped into the background, and perhaps a big glistening tear into the eagle’s eye, and it would be a good blog header for Pamela Geller. Hey, remember her? (She doesn’t follow good trigger safety at all, I totally just learned this. But she’s a teetotaler also, so.)

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U.S. District Court Judge William Pauley has ruled that one of the NSA’s mass metadata collection programs is lawful. On p.25 of the ruling itself, there’s a nice Appalling Vista moment:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

Of course this specific claim, this particular ruling, and this one case are all located in a much broader legal and political crisis. But the logic is striking all the same. “To hold otherwise would spawn mischief”, indeed.

Here’s a piece by me from earlier this year on the power of metadata.

I suppose you’ve heard that a kid got off by pleading ‘affluenza’. It just occurred to me it’s a Liar’s Paradox (and a travesty, of course.) The kid, through no fault of his own, falsely believed rich people can do stuff like this without suffering serious consequences. It turns out this false belief is true (hey, this is still America.) But obviously having a true belief is not going to keep you out of prison. (There’s no such thing as the sanity defense.) So he has to go to prison. So his belief is false, and he doesn’t have to go to prison. So his belief is true, etc., etc.

It’s kind of like the Paradox of the Court.

Not from a parody account, it would appear:

The foreign workers in Singapore are divided by gender into two tasks and two entirely different ways of life. I talked below about the men, who do mainly construction, but also work on the oil refineries off the south coast. Women who are guest workers almost all work as domestic helpers, who live with the family for whom they work, and do a variety of tasks: cleaning house, cooking, taking care of children, taking care of elderly or disabled family members, washing cars, shopping at the wet market for fresh food like fish and tofu and eggs and fruit and vegetables, shopping at the grocery store for rice and noodles and frozen chapati and Marshmallow Fluff, etc. etc. Most are from the Philippines, but many are from Indonesia and some from Myanmar or Thailand–some must be from mainland China but I feel I never hear of them. Expats like me would hire them if they were from Beijing and spoke even rudimentary English, because then they could help our children better their Mandarin. Women from the Philippines are paid more, because they are likelier to speak better English and be better educated (not so uncommonly with a post high-school degree, like our first helper, who worked for us for nine years.) They are also paid more because the government of the Philippines has negotiated a minimum wage for them, as I understand it. Indonesian helpers are sometimes 18-year-old girls who have literally come straight from a village where they lived in a house with a packed earth floor, and then they are screamed at because they didn’t use the right setting on the washing machine. They go through training courses paid for by the maid agency, allegedly. I think this is more a spurious reason for the agency to make the fee paid by the workers higher (as in many places, the women often pay a multiple of their eventual monthly salary to the Indonesian agency that gets them a job in Singapore.) The government of Singapore requires employers of helpers to pay a levy of–mmm–$380? (One of those convenient internet banking things). Domestic helpers are now guaranteed one day off a week but only if contracts were signed in 2013; previously Filipina workers were guaranteed one day off a month–oooh, lavish innit–and workers from Indonesia and Myanmar…none.
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There was a truly unprecedented riot in Singapore’s Little India neighborhood last night. (Video report from the BBC, Channel News Asia, Al Jazeera’s good report.) Our family just moved house, out to the wilds of Bukit Batok (a lovely apartment, actually, next to the Bukit Gombak MRT). Up till October, though, we were living right up the road from the spot where it took place, like 700m away; we would have been able to hear the yelling no question, and the bus exploding with what I imagine would have been rather startling ease. The riot started when a private bus, driven by a Singaporean, struck and killed an Indian worker while backing up. The bus driver was injured in the riot, and the bus itself destroyed completely. There is video of the windshield being smashed, and later footage of the bus completely aflame, suddenly punctuated by the gas tank bursting. Ambulances and, later, police cars (?!?!?! there aren’t enough interrobangs to express my feelings about typing this sentence) were also turned over and torched. A number of policemen were injured in the riot, as were some rioters, but the police never fired on the crowd, and got things under control within two hours, and happily no one else died. The cops were able to get there in a hurry because the Tanglin Police Post (bigger than a station, and more important) is about 500m away. They’ve had a big photo on one of their recruiting ads for ages, on a banner on the side of the building, that shows a bunch of ethnically diverse police officers armed with riot gear and huge plastic shields. I used to think, whenever I rode past in the taxi, so exhausted from work and in terrible pain, at the end of a thirty minute drive, with my head fallen to one side and my cheekbone pressed flat on the glass like skinless chicken breast against the cold plastic in the butcher’s section, “well, they ain’t never going to get the chance to do that.”
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What I am curious about in the Singer/infanticide/ending the life of the disabled vein is, what do those who are totally opposed to every form of infanticide think about anencephalic babies (and babies who have similarly non-survivable, severe birth defects)? I don’t think that, as a formerly pregnant person who has given birth to healthy children, my opinions on these questions have any extra merit, but I do think others not so situated may share my opinions without feeling so strongly about them, or in the same way. Perhaps the situation calls for some epistemic humility? The terrifying prospect to me, and to many mothers, of “late-term” abortion bans, is that pregnancies which are terminated after 20 weeks are almost all wanted pregnancies in which something horrible has occurred or been discovered. (And, in those cases where the baby is unwanted, there are almost certainly serious problems in the woman’s life that have led to the delay in getting an abortion sooner.) So, in a situation of supreme horror, the fetus might die, but the mother might be forced to carry the dead fetus inside her and have labor induced, to struggle in pain and blood to bring her dead baby into the world. She would feel the liquid inside her, and the lax ligaments, and all the other things she felt in pregnancy, but she would know the baby was dead. I have heard of mothers knowing right away. So close to you then, infinitely close, but infinitely far, and a rotting thing now, a poison for the rest of your body. So awful.

My first pregnancy was easy and wonderful. I felt and looked glowing, and although I was in labor for more than 40 hours (remind me not to do that again) I gave birth vaginally to a healthy girl who latched onto the breast just a few minutes after she was born, and fed well and naturally. In my second pregnancy I had unexplained bleeding starting at 19 weeks. Bright pink fresh blood in the toilet bowl. I thought my heart would stop. I thought her heart had stopped. They couldn’t figure out what was wrong. I was in terrible pain (I often am; but it seemed like she was tap-dancing on the worst bit of me.) I kept bleeding on and off. I knew how many movements she was supposed to make in an hour and I counted, and counted, and counted, hour after hour, so scared, and then another hour. The doctors were determined to deliver her surgically as soon as they felt she was cooked up right, so, 37 weeks. It turned out to be nothing serious, placenta previa (the organ grew over the cervical os, the opening to the birth canal, blocking the baby’s egress.) She was fine.

But sometimes when the doctors check, they find that the fetus, which has appeared to be developing fine, has no brain at all, that the blackness inside her skull on the scans is only water. This is not even a fetus, really–certainly not a future infant. It will never feel pleasure at a mother’s touch, or pain from being pinched by a crib mattress, or see anything, or hear anything. It is empty. Laws that would force a woman to stay pregnant and nourish and grow that wrongly-made creature inside her, and to suffer the agonies of childbirth, and to bring forth this…not-baby–laws like that are torture. I would go mad. I would try to abort the fetus myself. I would try to kill myself. I would want to be put to sleep then, there, in the doctor’s office, and wake up, not pregnant, and with a little coffin to bury my hope and love inside. With ashes inside, only, because I would want not to look, but I would look, and I would always wish I had not.

But let us say an unjust, oppressive, Christian regime forces me to endure, and to deliver this severely deformed baby. Does anyone think we should use artificial life support to keep the baby alive? Almost all fetuses of this type are stillborn, and those that are not usually die on the first day of ‘life.’ Even the Catholic Church has some hand-waving about letting God’s will take its course. That is, they are not insistent on providing hydration and nutrition–no one even considers artificial respiration. Reading on it, three children have lived a year or so. There are pictures of course, and now I wish I hadn’t looked at them, and I am so sorry, the poor little things, and so sorry for the parents. For the mothers! When I think of those oscillations inside you, feeling movements you didn’t make, the mysterious gliding of blood-wet surfaces over each other in the absolute black, the not-you inside you…what if you knew in the end there was nothing? Some kind of seasickness of death? At the last you would be holding a newly hatched chick, naked and grey and dead, grey and jerking with dying? But back to the matter at hand, we all think a form of infanticide is appropriate here, right? No one’s on team ‘drastic measures for resuscitation?’ Artificial respiration for 80 years, for something that can never feel you hold his hand? A rough golem on whose forehead no glyph has been inscribed? So isn’t there a small number of real-world, continuously-occurring cases in which we are all pro-infanticide?

UPDATE: so misinterpreted! Obviously my fault also. I didn’t jump in to give Singer crucial moral support. I’m not totally sure how I did…I guess I’m implying all his critics are disingenuous and have parked themselves at the top of a slippery slope with some dubious wedge. I apologize to sincere Singer-critics for insulting their position in this way. That wasn’t actually what I was trying to do at all. I was genuinely curious. There was a case maybe eight years ago now, but I can no longer find it in the welter of anti-abortion and pro-abortion articles, in which a woman’s 24 or even 26-week-old fetus died, and the laws of her state required a waiting period before you could get a late term abortion (Texas IIRC?). The removal of a dead fetus is done via dilation and curettage, i.e., via abortion. So she had to go talk to some doctor, and then go stay by herself in a motel with her dead baby inside her for two days. She wrote about her experience and I remember thinking, I don’t know if I could live through two days of that. A responsible, thoughtful doctor would have deemed the dead fetus a threat to her health and her ability to have future children and had it removed on those grounds, but in this particular case, it was a Catholic hospital and none of these things happened. So I did mean to say, I think there are a number of infants born each year whose lives everyone agrees cannot go on in any way. That doesn’t mean that–HAHA! now everyone is obliged to accept all Singer’s positions; I was honestly curious, not mock-curious, and I honestly don’t know what all Singer’s positions are. But I also meant to describe to people who haven’t been pregnant the terror of something going wrong, and how you hope you would be a good enough person to accept your baby any way she came, but you fear you’re not brave enough, not really, not truly brave enough. And that as long as she was inside maybe you could pretend it would be alright somehow? But even then there is only one feeling that is ever like this, of having something inside you that is alive, that isn’t you, that you are waiting for, and how would it be if you were waiting for nothing? That’s all. I really don’t know enough about Singer’s positions to arbitrate on any of these questions; I was just thinking, we need to hear from severely handicapped people who were written off as a total loss before we know whether he can be right. We might also be interested to hear from mothers. And I’m only the mother of perfectly healthy babies! That’s it. I’m not laying down my life for in-group sacrifice.

Greetings from the road. I’ve been chivvying little girls around the globe for a few weeks, which interferes with keeping up one’s CT duties. So our text today is taken from one of the few literary works I’ve had a chance to read with real discernment, at leisure. The August issue of the Delta inflight magazine! 

The article in question is a celebration of the 50th anniversery of King’s “I Have A Dream Speech”. A number of prominent Atlantans reflect on its significance, generally and personally. (Hey, you can read it online. Who knew? Who ever links to articles in inflight magazines?)

It’s the sort of feel-good, unlikely-to-offend fare you expect from an inflight magazine. But the fact that MLK, his legacy and most famous speech, are fodder for such fare is noteworthy. In 1963, who would have expected that, a mere 50 years on, MLK would be not just a moral hero to many, but a non-polarizing, nominal hero to nearly all. Democrats love him, of course. And Republicans – although they may vote against MLK day and try to chip away at his pedestal every couple of years – are really more interested in making out, rhetorically, how they, not Democrats, are the true heirs to his legacy and philosophy (which has been so cruelly betrayed by the Democrats). As Orwell said about Dickens: MLK is a figure well worth stealing.  [click to continue…]

After my posts on Shelby, a few weeks ago, I decided to see what the Volokh folks have had to say about that particular decision. Not a lot, it turns out. But here’s Jonathan Adler, explaining how he thinks left and right tend to view the issue differently. Seen from the right, the decision makes sense (although Adler does not endorse it explicitly): [click to continue…]

I’m not a big believer in ‘heighten the contradictions’. Too Lenin-meets-slatepitch. But I wonder to what extent the Shelby decision will prove disadvantageous for Republicans because the party will now pursue measures that are inconsistent with making any credible attempt to not be a regional, ethnocentric party. Because they have to at least try this new stuff, as a solution to the problem that demographics are shifting. But surely everyone is going to notice them doing that.

Maybe it will backfire, as voter discouragement measures seem to have backfired in 2012. Or maybe it will work, at least in the near term. Minorities will vote in smaller numbers. That will help Republicans. But it seems like doom for Republican moderates, hence death for tender green shoots of Republican moderation (were one to believe such a delicate blossom could ever compete with that hardiest of conservative perennials – the extremist spasm.) No Republican is allowed to call a fellow Republican a racist, obviously. That’s beyond the pale (no pun intended!) But that means no moderate Republican will be able to talk, critically, about what their fellow Republicans are going to be up to, thanks to Shelby. Because anything the least bit negative they say about anything Shelby has made possible will be construed as a charge of ‘racism!’ by other Republians. So the most ethnocentric elements of the party will loudly drag the rest quietly along for the rightward ride. But no one along for that ride is going to look moderate in the least. The overall optics are going to be terrible.

Read this column by Matt Lewis. It’s about immigration, not Shelby. But the dynamics are the same. Just apply Lewis’ discovery that dog-bites-man – yep, it happens – to the Shelby case. The Supreme Court has made it legal to do stuff you couldn’t do before. Hence there is a practical point to Republicans talking about doing that stuff. But the talk is going to get ugly. But no one on the right is allowed to notice it getting ugly. No one who aspires to office, anyway – even though this is precisely the same lot who most appreciate that you need to keep the ugly talk to a minimum. Lewis is a Rubio fan, and I can see him worrying: in 12 years, is it going to be possible to have a figure like Rubio in the party? Or will he have died the death of a thousand cuts from both sides. He will look to minority voters like a profile in putting up with increasing amounts of crap. (At best, it will be largely symbolic stuff, intended to signal to whites that Republicans think they’re still tops. At worst, it may be much worse than that. We’ll see.) Rubio-types will look to white Republicans like a liability waiting to happen. When is he finally going to call us racists, which will have the Times all over us in a New York minute, costing us more than all the good he ever did for us, in terms of minority outreach.

You might say this only affects Republicans in the regions affected by Shelby. But other Republicans will have to comment on it, and ‘it’s not my district’ isn’t going to sound very moderate to ticked off minority voters.

Going back to my first point: it’s too clever by half to argue that vote suppression measures will surely backfire, having the opposite of the intended effect. So let’s just ask: to what extent will Shelby discourage the Republican Party from mending its ways (by liberal lights, of course)?