Law

Ronald Dworkin has died of leukaemia at the age of 81. I can’t speak to his work in jurisprudence, but his work in political philosophy has been some of the most original and creative of the past 50 years. In particular, the first two of his equality essays (welfare and resource), published by Philosophy and Public Affairs in 1981 and then featuring as the opening chapters of Sovereign Virtue had a major effect on the field and paved the way (for better or worse) for luck egalitarianism. I’m sure there will be obituaries over the next few days. In the meantime — though prephylloxera claret may be unavailable — I hope we all raise a glass to his memory.

(Here’s Dworkin talking about Justice for Hedgehogs, starts at about 12 minutes in.)

Obituaries: The Guardian, New York Times, Financial Times, Oxford Law Faculty (with links to radio), Daily Telegraph, Atlantic, Independent

Discussion of those badminton players seems to divide into two camps: those who think it is fine to exploit the letter of the law to gain strategic advantage and therefore can’t see a problem, and those who don’t. Bracketing off for a second the embarrassing fact for those in the first camp that there does actually seem to have been a rule against deliberately losing, it’s plain that this is just a particular instance of a more general syndrome. There are people who devise and employ elaborate schemes to evade or avoid (I never know which is which) their taxes whilst staying just within the law. There are bankers who stay technically within a literal interpretation of the banking regulations, whilst engaging in dubious practices which undermine the regulator’s intention. There are employers who try to evade workplace regulations by reclassifying their workers as independent contractors. There are states which harp on about the technical details of the laws of war as they happily murder civilians. Well sometimes we need to punish the technically innocent but morally culpable. And it helps _encourager les autres_ to internalize the ethos behind the laws rather than seeing them as being just an inconvenient system of traffic control.

Rule-of-law fetishists, Hayekians, and the like tend to think this is just appalling. Legislators, regulators, sports administrators and similar, should devise watertight systems of rules within which people are entitled simply to go for it. But it is highly questionable that such watertight frameworks are possible, even in principle. So we need to give the enforcers some discretionary power to zap the bad people: people who knew perfectly well that what they were doing was at or over the moral and legal boundaries but didn’t care. (On the tax front, the UK’s plan to introduce a General Anti-Avoidance Rule is designed to punish just these characters.) Such power is, of course, liable to abuse. But that’s just the way things unavoidably are. The solution is not to pretend that we can make the rules work perfectly, but to make sure the enforcers are genuinely democratically accountable and removable.

After nearly 10 years, military trials at the Guantanamo Bay Detention Camp have produced a total of six convictions. One of those was Australian David Hicks, who agreed to a plea bargain under which he would be sent back to Australia to serve out his sentence. On his release, he wrote a book about his experiences. Under Australian “proceeds of crime” laws, the earnings from books about a criminal career are liable to confiscation, and the Australian government accordingly froze the proceeds and took action to have them forfeited.

The news today is that the Director of Public Prosecutions has abandoned the actions and paid Hicks’ legal costs[1]. Although no rationale was given, the general presumption is that the US conviction would not stand up in an Australian court, either because (as Hicks alleged) Hicks’ guilty plea was extracted by torture, or because the whole system failed to meet basic standards of due process. Most simple of all is the fact that, unlike the usual case of plea bargaining, the options aren’t pleading guilty or going to trial. Rather those who plead guilty get a definite (and usually relatively short) sentence on top of their detention, while those who do not are held indefinitely without trial.

All of this is relevant now that the Obama Administration is trying to “normalise” the plea bargaining process, by getting those who have pleaded guilty to testify against others accused of more serious crimes. The idea that the state can torture someone, imprison them indefinitely, and then use their “voluntary” testimony (given in the hope of release) against another, then claim that this is an improvement on using confessions extracted by torture of the accused is more reminiscent of the legalisms of a totalitarian state than of anything that could be described as the rule of law.

fn1. The only other Australian detainee, Mamdouh Habib, was threatened with similar action, but this did not proceed. He eventually received a substantial (but secret) settlement in return for dropping claims against the Australian government for its alleged involvement in his torture.

Oh Christ. IMAGINATIVE EMPATHY FAIL. The imaginative empathy fail button at CT headquarters is turning around and blaring and stuff and I am sick so I don’t have time to deal with this plus it’s an annoying sound. Everyone, please try to imagine you are a poor person for at least 45 seconds at a minimum. Also, if you look at an 80-comment thread and only one commenter with a visibly female handle has said anything, would you please just, go get someone off the street or something, or like maybe the woman next to you at Starbucks, to comment? Don’t tell her it’s about libertarianism!! Don’t be hitting on her either. Unless you’ve got mad game like Kells. Tell her I asked you to. Anyway.

Do you know how becoming a Jesuit differs from taking on a job that is unpleasant? You don’t need to become a Jesuit to get money to buy food and clothes for your family! For real! You’re not even supposed to have a family! So is there an issue there, about whether one can potentially contract oneself to SeaOrg or the Holy Catholic and Apostolic Church and come out missing your freedom? Yes, and that is what separates cults from churches in most people’s mind. This could be an interesting sidebar discussion but it has nothing to say about the “putting up with awful things to have a job” issue.
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Oh, I know what y’all are going to say. You’re going to say it’s wrong to like R. Kelly because his music is bad. No. Unnnh huuh. “But it’s got T-Pain in it!” You like “I’m on a Boat,” don’t you Sherlock? Further, “I’m a Flirt” is insanely catchy. Now you object that the Venn diagram of insanely catchy and bad has a large overlapping area, because you wrongly hate hillbilly-from-the-future Carly Rae Jepsen’s “Call Me Maybe,” but nonetheless, “I’m a Flirt” is just a good song. No. You know why else? Because I told you so. Also, everything silly you wanted in a video. Expensive cars? Stupid big jewelry? Honeys up in the VIP room? So many honeys. I’m gay for this video.

But it might seem as if it’s wrong to like R. Kelly’s music because he’s committed statutory rape on multiple occasions.
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[This post was co-written by Chris Bertram, “Corey Robin”:http://coreyrobin.com/ and “Alex Gourevitch”:http://thecurrentmoment.wordpress.com/ ]

“In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” —Alexander Hamilton, Federalist 79

Libertarianism is a philosophy of individual freedom. Or so its adherents claim. But with their single-minded defense of the rights of property and contract, libertarians cannot come to grips with the systemic denial of freedom in private regimes of power, particularly the workplace. When they do try to address that unfreedom, as a group of academic libertarians calling themselves “Bleeding Heart Libertarians” have done in recent months, they wind up traveling down one of two paths: Either they give up their exclusive focus on the state and become something like garden-variety liberals or they reveal that they are not the defenders of freedom they claim to be.

That is what we are about to argue, but it is based on months of discussion with the Bleeding Hearts. The conversation was kicked off by the critique one of us—Corey Robin—offered of libertarian Julian Sanchez’s presignation letter to Cato, in which Sanchez inadvertently revealed the reality of workplace coercion. Jessica Flanigan, a Bleeding Heart, responded twice to Robin. Then one of us—Chris Bertram—responded to Flanigan. Since then, the Bleeding Hearts have offered a series of responses to Chris and Corey.

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Like Kevin Drum, I haven’t really been following this Fast and Furious thingy. (I didn’t like the movies either.) And, like Drum, I’m amazed at the Forbes CNN Fortune piece he links to. If this is right, everything everyone has been saying about the case is wrong. Unlike Drum, I say it’s possible to extract the nub, like so: [click to continue…]

I’ve blogged about this before, but the UK Coalition government’s proposals to restrict the immigration of spouses of British nationals just came a step closer to being enacted. Though packaged as a measure against forced marriage, this is a proposal that will drive into exile or separation many people whose personal income falls below the £25,700 threshold and who happen to have been unlucky enough to fall for a non-EU citizen. Sheer evil. The Guardian:

bq. British citizens with foreign-born partners are to be given the choice of indefinite “exile” in countries including Yemen and Syria or face the breakup of their families if they want to remain in the UK, under radical immigration changes to be announced next week, MPs have been told. The home secretary, Theresa May, is expected to confirm that she will introduce a new minimum income requirement for a British “sponsor” without children of up to £25,700 a year, and a stringent English speaking test for foreign-born husbands, wives or partners of UK citizens applying to come to live in Britain on a family visa. Immigration welfare campaigners say that the move will exclude two-thirds of British people – those who have a minimum gross income of under £25,700 a year – from living in the UK as a couple if they marry a non-EU national. They estimate that between 45% and 60% of the 53,000 family visas currently issued each year could fall foul of the new rules.

It is hard to have any hope that the Liberal Democrats might decide this is a line they cannot cross, but they have to be put under pressure. People have to write to their MPs of whatever party and make their disgust known, as well as trying to get the Labour Party in the shape of Chris Bryant and Yvette Cooper to take a stand (rather than trying to be more nationalist than the Tories). I wonder also whether the academics who are members of the UK Border Agency’s Migration Advisory Committee shouldn’t be being asked tough questions by their academic colleagues and urged to resign.

I wish people would stop being so confused all the time. If someone is “a racist” it is not because he is a like a Nazi with a uniform and everything, and pledges allegiance to the flag of racism, and goes around shouting “I hate Mexican people!” Well, to be fair, he might shout that if he were drunk and had smoked some of the cottonmouth killer, or were on MySpace. And those dudes in Stormfront exist. And racist skinheads too dumb to join Stormfront. Nonetheless, in ordinary speech one only means “hey, he said a thing that was racially prejudiced,” or “she told a racist joke,” or “he threw a crumpled-up beer can at that broke-ass African-American gentleman walking right beside the road (South Carolina doesn’t hold much truck with sidewalks) while shouting ‘f%cK you n1gger!,'” or “she collects these weird racist yam crate-labels from Louisiana in the ’30s and I am not sure her motives are entirely pure.” (May God help me on this one, a collector sells them in Takoma Park at vintage fairs and sometimes I succumb. They’re so cool! She’s a 65-year-old Black lady, so she’s off the hook. OR IS SHE?!).

Anyway, otherwise very intelligent people such as Radley Balko go weirdly off the rails on this one. (Whom you should all read all the time, even though libertarians annoy you, because he is the only person in the history of blogging to ever get anybody off of death row by blogging about it. We arrange some excellent book events, and we make nice covers and John typesets’em all purty, but I’m pretty sure Radley’s got us beat ten ways to Sunday on useful blogging and we will never recoup, not with a thousand book events. Anyway he’s not the annoying kind of libertarian. Er, rather, he’s one of the least annoying kinds. He actually cares about the rights of poor people and has noticed that corporations as well as governments can infringe upon your rights, although he doesn’t focus upon this latter point as much as a left-libertarian would. Did I mention he saves people’s lives? His blog is rushing into burning buildings and dragging people out, and then it wants to go back in, and the chief’s trying to hold it back, because it’s inhaled all this smoke and all, but it busts free and saves three more children, but it just has three cute smudges of soot on its face, and then it kisses Natalie Portman. Then maybe it links to Ilya Somin, and you think, the hell he did?! Our blog is just drinking a cup of coffee, and making plans to kiss…Clive Owen? I may need to re-do the polling on this one.)
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Hey, look who isn’t bleeding from the back of his head! At all. Moms isn’t going to have to get out the Thomas the Tank Engine band-aids. Who doesn’t have a grass stain on his jacket? More importantly, who doesn’t have a broken nose? George M.F. Zimmerman, that’s who.

I consider myself something of an expert on the subject of broken noses. Mine first got straight-up broken in a random mugging by a 5’10’-6 ft tall black guy in a black hoodie and jeans. Actually, for real, not lying here. (Needless to say I didn’t bother to report it to the police. I seriously couldn’t have picked him up out of a line-up, and what, I want them to wander along Amsterdam Ave looking for 6 ft tall black guys in hoodies to hassle? What’s the point there? This was a long time ago, at the peak of NYC crime in the early 90s) Not really a mugging because they didn’t end up taking my stuff, more like a freak-out because I was walking too close to him or something and he was high. Whatever. Since then it has been broken numerous times, but because the initial break weakened it, I think, in a number of the cases. I mean, that one time a guy just hit me in the face by accident, that was a plain old hard hit. (Really an accident, not “I’m being abused” an accident.) The later breakages definitely produced less blood/trauma; maybe Zimmerman is in Fight Club?

Anyway, when someone hits you in the face hard enough to break your nose, you look rather distinctly awful. You are pale*, with bruises starting under your eyes, and the place where the break happened is busted open, and there is blood all over the damn place. Coming from the wound on your face, pouring out of your nose: blood everywhere. Now, maybe there’s some other more manly way to get your nose broken I’m not aware of, and that’s just the ladyway of getting the lady-noses broken. Or I’ve been the victim of some particularly bad nose-breakings? That’s frankly not unlikely. In any case, annoying as the video is (the ABC news EXCLUSIVE banner overlays the interesting part of the image for 90% of the running time), it clearly shows a man who was cuffed (so I was wrong about his not being cuffed!), but did not just get the beatdown from Trayvon Luke Cage Martin. He doesn’t even look shook up enough; dude just shot and killed a kid! If I had done that by accident I would be in agony. So, dear readers, a) don’t believe everything you read, and, b) the Sanford police should really have arrested this asshole at the time and their decision looks worse and worse in retrospect.

N.B. in re: trolling. I myself am mildly pro-troll on principle. I would prefer that there was no one trolling. However, if someone has to troll, they should damn sure be doing it right. Piss everybody off at once. Suddenly advocate nuking Japan for no reason. That’s why, when confronted with the weak-ass “trolling” of…bjk? I can’t even remember; I was inclined to call in the big guns and say if someone’s going to derail my thread it’s going to be a high-quality troll like Bob McManus. I know, you’re all thinking “when the hell are you going to tire of his demands that other people’s blood flow in the streets and so on?” I don’t know. He’s strangely almost exactly like my dad along certain axes, so he’s got a gilt-edge pass from me. We all know he would never abuse that by…what? He just? Oh, well.

*Even very dark-skinned people can look ashen or sallow–fundamentally unwell. In white people this expresses as blanching to paper-white, but there are analogues for the majority of the world that is not white.

N.B. I say “disgrace” because it’s not a tragedy, precisely.
I am officially not allowed to look at the internet, as it is likely to give me a terrible migraine. More terrible than the one I already have. All the time. So this will have to be brief (lol srsly). I just scanned the front page to see if there was anything else, but didn’t see it, so I feel as if I have to say something about the shameful, quasi-state-sanctioned execution of Trayvon Martin.

Trayvon Martin was 17, and was staying with family in Sanford, Florida, in what is referred to by the obligatory monicker “mostly-white gated community.” He walked out to buy some candy and a can of iced tea at a local convenience store, and was tailed back by a self-appointed neighborhood watchman, who deemed him “real suspicious” and “probably on drugs or something.” This joker George Zimmerman then got out of his truck to (perhaps) scuffle with Trayvon, and then shot him in cold blood, as far as anyone can figure, while Trayvon was pleading for his life. This (the pleading) can be heard in the background of neighbors’ 911 calls. I have to say it’s a little odd none of them stepped out on the porch with a shotgun to say “I’ve called the cops already, cut it out!” The number of people committing crimes who will just run away if you say “I see you down there, knock it off” is high IME. Zimmerman claims it is his high-pitched voice we hear begging for his life between the firing of the first and the second shot, after which there is silence. Take a look at a picture of the man. I don’t even know what to say.

UPDATE: I place this above the fold so everyone will see. I was sort of taking it for granted that people were reading Ta-Nehisi Coates‘ blogging on this, which has been copious and excellent. But if you haven’t, you should.
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Some reviewers have complained that Corey Robin’s The Reactionary Mind seriously overreaches when he writes stuff like this:

Conservatism is the theoretical voice of … animus against the agency of the subordinate classes. It provides the most consistent and profound argument as to why the lower orders should not be allowed to exercise their independent will, why they should not be allowed to govern themselves or the polity. Submission is their first duty, agency, the prerogative of the elite. (7)

He digs up fun quotes from old, odd sources.

“In order to keep the state out of the hands of the people,” wrote the French monarchist Louis de Bonald, “it is necessary to keep the family out of the hands of women and children.” (15)

At this point conservatives get ticked off: Louis de who?

Can’t pin us to some dead monarchist! Guy was French! Robin is guilty of tarring all of conservatism with the broadest, blackest brush. It’s paranoid stuff. Nasty sniffing around in the alleged id. No respect for the superego.

This sort of dispute is hard to adjudicate, because the only way to do so rigorously is with specifics – examples and counter-examples. But really Robin isn’t claiming that there are no counter-examples to his claim. He is saying his model is the paradigm. He is modeling the typical, not the invariable, conservative. The conservative response is that – today – only conservative extremists think in this bad way. It’s no accident that Robin has to run off to Old Europe for the juiciest quotes. The rest he gets from more contemporary conservatives when maybe they slipped in an interview and said something they didn’t quite mean, or they exaggerated for effect and … taken out of context …

Let’s take a crack at defending Robin, like so. Ross Douthat’s latest column in the NY Times is a good fit for Robin’s thesis. Douthat is no one’s notion of a radical conservative. He’s a squish (well, that’s what lots of conservatives think of him.) His job is to make conservatism sound reasonable to urbane liberals. None of that seamy underbelly, talk radio-style stuff.

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One hesitates to use the term, because it is so often misused, but it’s genuinely applicable here. Brazil just passed a law requiring every pregnant woman to register with the State. The alleged reason is to improve pre-natal care, but since no such provisions exist in the law it seems an exercise of raw power.

On December 27, while most Brazilians prepared for the New Year by bleaching their whites and gathering flowers to toss into the Atlantic for the goddess Iemanjá, Dilma Rousseff, Brazil’s first female president, was gathering a group a conservative legislators to stealthily assist in drafting and enacting a CeauÅŸescu-like law requiring all pregnant women to register their pregnancies with the state….
So what is going on? Brazil, the most populous Catholic country in Latin America, finds its politics intrinsically tied to the hierarchy of the Catholic Church. Dilma, who won a last-minute reprieve from the church’s negative onslaught in the 2010 presidential elections once she disavowed any suggested support for abortion, is to a certain extent beholden to that base. Indeed, Dilma’s cabinet includes an unofficial church representative who was responsible for brokering an agreement between the Vatican and Brazil during President Luiz Inácio Lula da Silva’s administration. For years Catholic and evangelical parliamentarians have been trying unsuccessfully to establish a registry for pregnant women, with Dilma’s support they’ve finally succeeded.

The obvious actual intention of the law is to prosecute women who have abortions or induce miscarriages. It’s hard to imagine anything more painful than losing a wanted fetus and then being grilled by the police about it, and possibly sent to jail for up to 3 years. Oh wait, except being forced to carry a fetus to term when you are the victim of a rape but there was no successful rape prosecution. That would be worse. Will the cops walk around stopping pregnant women and checking whether they are registered? If anything this seems likely to worsen access to pre-natal care, as women who are undecided about whether to carry to term at first, but end up staying pregnant, decide to give birth at home to avoid getting in legal trouble for failing to register the pregnancy earlier. Or when teenage girls who are ashamed of their pregnancy don’t want to register, and then won’t go see the doctor for any pre-natal care whatsoever. I hope when Brazil’s congress returns to session they will overturn this law. This is just evil and wrong.

UPDATE: Thanks to Witt in comments below, a link to an English-language article explaining the law in greater detail, by Brazilian women’s health activist and human rights advocate Beatriz Galli. (Additionally, those curious may want to know that the woman’s doctor will be compelled to register her with the government when he knows she’s pregnant, which might well be before she does!) Excerpt:

In fact, PM 557 does not guarantee access to health exams, timely diagnosis, providers trained in obstetric emergency care, or immediate transfers to better facilities. So while the legislation guarantees R$50.00 for transportation, it will not even ensure a pregnant woman will find a vacant bed when she is ready to give birth. And worse yet, it won’t minimize her risk of death during the process….
Last but certainly not least, MP 557 violates all women’s right to privacy by creating compulsory registration to control and monitor her reproductive life. In fact, it places the rights of the fetus over the woman, effectively denying her reproductive autonomy. A woman will now be legally “obligated” to have all the children she conceives and she will be monitored by the State for this purpose.

This excellent article from Mother Jones’ Beth Schwartzapfel details how a guilty rapist tried repeatedly to confess to a crime of which another man had been convicted, only to succeed after the innocent man had died. The ensuing exoneration was so complete that then-Governor Rick Perry had to issue a pardon to the dead man, not something Texas governors are generally inclined to do. Rick Perry’s faith in Texas’ system, however, remains serenely unshaken.

A string of devastating stories has put Texas justice, in particular, under a cloud. In addition to Cole’s postmortem exoneration and the execution of Cameron Todd Willingham, chronicled in The New Yorker in 2009, there is also the case of Anthony Graves, who served 18 years for a gruesome murder while the true killer confessed again and again. Graves was finally freed in 2010 following a Texas Monthly exposé.

Cole, Willingham, and Graves were all convicted under prior Texas governors. But Perry has done little to improve the state’s criminal-justice system, which has almost a million people in its grip. In 2001, he vetoed a bill banning the execution of the mentally disabled. In 2003, he cut the prison system’s budget by $230 million, slashing education programs, drug treatment, and food; when an independent auditor warned that was untenable, Perry cut the auditor’s office too. In 2007, his administration backed a bill making some child sex offenders eligible for the death penalty. While Perry has signed legislative reforms covering eyewitness identification and access to DNA testing, the system still offers scant options for the many people imprisoned for crimes they did not commit.

Radley Balko’s blog The Agitator remains an indispensable source of information on cases like these, as well as the uncountable cases in which the War on [Some People Who Use Some Kinds] of Drugs* has metastasized into a cancer that gets untrained local law enforcement rolling out in surplus military gear to perform ill-advised and pointless SWAT-style raids. (With tanks. No, really.) And shoot everybody’s dog when they get there. And maybe their grandmother. Seriously, don’t read the blog if you don’t want to hear about the cops shooting someone’s dog every goddamn day. His recent coverage of the OWS movement has been…how shall I say this…not all I would have hoped from a lover of liberty, but no one’s obliged to agree with me all the time, and it’s not as though it’s rendered the blog unreadable or something.
*Courtesy of Lawyers, Guns and Money. Like Sadly No!, we are aware of all internet traditions.