Weekly Round-Up for March 30th

As always, here are the links to the weeks best and most interesting stories:

There were, conservatively, 74,205 different columns this week on the Affordable Care Act, and I can't link to them all.

Here's Slate's page with ALL their stories on it. 

Salon explains that in landmark cases, ideology often trumps precedent. 

David Franklin suggests Roberts will maneuver the Court into a narrow avoidance of the real issues in the healthcare cases being heard this week. 

The New York Times has a handy interactive guide to the three-day hearing here, if you want background.

Andrew Koppelman gives his take on the healthcare cases. 

As does Rebecca Buckwalter-Poza.

Representative Dave Camp's aide won't give his wife a get (a religious divorce in Orthodox Judaism). Mark Oppenheimer explains why Rep. Camp probably can't force him to do it unless he wants a Civil Rights Claim on his hands. 

Does Congress have the authority to allow Americans born in Jerusalem to claim Israel as their birthplace? The Supreme Court doesn't want to decide, so they're going to let a lower court figure it out. 

At Salon, Linda Hirshman describes the New Hampshire GOP's evolving relationship with gay marriage. 

In Canada, the Ontario Supreme Court struck down restrictions on sex work, legalizing brothels in that province. 

A Federal Judge in Michigan acquitted militia members of sedition.

Andrew O'Heir writes a really interesting piece at Salon about the MPAA's strange decision to give a documentary called "Bully" an R rating, and the fight brewing about it. 

As you may have heard, a conservative organization had official plans to pit gays and blacks against each other. 

Violence, Vigilantes, and the Tragedy of Trayvon Martin

So much has been written and said about Trayvon Martin that I worry I can't say anything new. That the killing is tragic is obvious, that it was senseless seems clear to me too. I have no shortage of opinions on or anger against George Zimmerman. A ton has already been put out there about gun control and racism, more than I can either cover or adequately contribute to. Instead, I'd like to take a few paragraphs to speculate on the circumstances that make us want to take matters into our own hands. If the following seems to forget the inherent tragedy, I'm sorry. Possibly it's because I don't think I can do that part of it justice. But I do think I can say something about our relationships with institutions and how it instructs our senses of crime and justice. What would drive an electorate to enact something as radical as Florida's "Stand Your Ground" law, or to form an armed Neighborhood Watch, or - tragically - kill an innocent person while on that watch's patrol?

Looking to both our history and our fiction, some patterns emerge about vigilantes, self-help, and extra-legal justice. Let me suggest at the outset that, as a general matter, we turn to these measures when we find weakness or fault with our formal institutions. If "The Law" cannot or will not do what we want it to do, we find other ways to get done what we think needs to get done. Let me start with a quasi-historical example. What happens when the police won't take care of your people? If you belong to an ethnic group that gets ignored, that doesn't get fair legal protection? This happens:

I'm not exactly a mafia expert, and there are any number of explanations for the rise of the Italian-American branch (not least being the influx of immigrants affiliated with the Sicilian originals). But part of the emergence of protection rackets is the need for, well, for protection. The Irish in Boston and New York felt cut out of the formal institutions of law and politics, and lo and behold Irish gangs emerge. 

Consider too cases where battered wives kill their abusive husbands. Part of what constitutes Battered Woman Syndrome is a belief that your husband is untouchable, that the police cannot or will not intervene on your behalf. In such situations, with their backs against the wall, abused women take matters into their own hands and kill their husbands. I'm not saying either that they shouldn't have or that their husbands deserved it, but rather that something that contributes is the belief that the formal institutions of law cannot be trusted to bring about the appropriate outcome. 

This doesn't necessarily imply that the institutions are weak. In the case of battered wives, the police department may be quite strong, but (at least perceived as) unresponsive. Moving back to fiction, think about Unforgiven. Gene Hackman's sheriff isn't weak, he runs the town with an iron fist. But his concept of appropriate punishment for the men who mutilate a prostitute at the movie's outset doesn't mesh with what her friends and co-workers consider just or fair. The result?

They get together a purse and hire bounty hunters to track down and kill those responsible. In the face of an institution they believe is unresponsive to their calls for justice, they take matters into their own hands and aim to achieve the result they think best represents justice. 

This is reflective of a fairly common practice in the early days of our Republic and on the frontier, what Larry Kramer has termed "popular constitutionalism." When a judge handed down a punishment that was considered too light, too heavy, or not in accordance with popular perception of the Constitution, mobs would release prisoners from jail, or - in the opposite scenario - hang them. Yes, vigilante justice, but not unprincipled vigilante justice. It was popular interpretation of what the dictates of law and justice demanded, and seen as a corrective for the failures of formal institutions. 

This trope is popular not just in Westerns  - though I could rattle off half a dozen Westerns premised on violence and vigilantism and faulty institutions without batting an eye - but all over fiction. What do the following have in common?

They all responded to corrupt/weak institutions by providing their own brand of justice. In fiction it's tended to be men, but not exclusively:

In movies, fiction, and history, violent self-help and vigilantism are often responses to weak, rigid, corrupt or unresponsive formal institutions. Police can't get the job done? Step into their shoes. 

Which, in a roundabout way, brings us back to Trayvon Martin. I don't want to speculate too much about George Zimmerman, but his history of 911 calls and the specifics of the call he made before ignoring the advice of police and shooting Trayvon Martin strongly suggest that he felt the police were not doing what he felt they ought to do. In this case, it seems clear - at least to me - that Zimmerman's view was uninformed, inflected by racist beliefs, and amped up by delusions of grandeur. That he didn't even have to spend a night in jail is utterly inexcusable, and that Florida's law claims to be incapable of punishing such happenings tragic, misguided, and dangerous. We should be having the conversations we are having, about racism, gun-control, self-defense, etc. 

I hope, however, that we don't lose sight of the institutional angle. I suspect that many people who supported the Stand Your Ground law in Florida did so because they felt they needed to be able to take matters into their own hands more. I think the Neighborhood Watch to which George Zimmerman belonged was formed in part because its members felt the police weren't doing enough to protect them. And I feel certain that George Zimmerman felt the police weren't doing their jobs (whether he's wrong, and whether his views are as impacted by racists beliefs as I suspect doesn't change the fact that his perception of this truth contributed to the tragedy).

In political science, we tend to define "the state" as the monopoly holder of legitimate coercion and force. But anecdotally and historically, this isn't especially clear; I don't think it passes theoretical muster, frankly. And we ought not to ignore the fact that people step in to correct perceived institutional problems. If we do, we ignore the motivations of the world's George Zimmermans, and run the risk of more tragedies like that of Trayvon Martin. 

Weekly Round-Up for March 23rd

Some of the best and most interesting stories from the last week:

Emily Bazelon writes about the end of the Dharun Ravi/Tyler Clementi tragedy at Rutgers. 

Becky Supiano at the Chronicle of Higher Ed gives her take on the same case. 

At Salon, Amy Benfer reviews Jeannette Winterson's new book that touches on the social assumptions we make about male and female authors. 

At The Atlantic, a critique of Kenneth Arrow's famous critique of free-market healthcare. 

In Northern California, the Yurok tribe tries to maintain and rebuild it's own society (in a space created by our laws, but there's bound to be conflict, sadly).

Brian Palmer on neighborhood watches, crime rates and Trayvon Martin.

The New York Times on Trayvon Martin and the national response. 

More New York Times: "Stand Your Ground" and the Trayvon Martin killing. 

Salon on society, sexuality, and female power in Twilight and The Hunger Games, 

A lawsuit against law schools for inflating employment rates has been dismissed, reports the Chronicle of Higher Ed.

The Root argues that the Trayvon Martin tragedy ought to spur debate - and action - on stricter gun control. 

Lies! LIES I say!

I missed my opportunity to write about US v. Alvarez and the Stolen Valor Act when the Court heard oral arguments about a month ago, but I'll take a swing today at the idea of penalties for lying, more broadly. In keeping with the spirit of this page, I'd like to take some space to write about the ways in which we variously punish, tolerate, and even valorize lying in different social contexts. This is - obviously - an enormous topic, but let's give it a quick go.

[Background: The Stolen Valor Act criminalizes lying about military honors. Alvarez is a case before the Supreme Court wherein a California man lied about receiving the Medal of Honor, was convicted, and is now challenging the law on First Amendment grounds. Dahlia Lithwick did a really excellent job writing about it at Slate.]

Lies We Hate
As a first cut, it seems to me that the lies we truly despise are the ones that are aimed at either intentionally injuring someone, or are at least told without consideration for others. In the criminal context, we call it fraud.

When you intentionally deceive another for the purpose of your gain (or another's loss), the law may get involved (perhaps not as much as many wish it did...) But not all malicious lies are actionable, and even those that are don't usually result in suits. How many dirty rumors have been spread without a slander suit?


The dividing line doesn't appear to be hurtful/harmless. We can imagine lots of very hurtful lies that either aren't actionable or are at least rarely actioned. You could cruelly deceive a child - or adult, but child feels more visceral - into any number of things (I started typing some examples and just got depressed). This would make you an unquestionably terrible person, and anyone who was caught doing something like this would be ostracized. They would be duly socially punished for their lies, even though the formal law wouldn't deign to be involved.

Nor, as the previous example also illustrates, can we say that the formal law jumps in when lies reach some sort of morally repugnant Rubicon. Again, lying to a child with intent to disappoint or emotionally harm is - to my mind - obviously morally appalling. And yet many of us would shy away from criminalizing it.


Lies We Begrudgingly Accept
I'm certainly not breaking any new ground when I suggest that people may not be entirely honest when they are... let's say amorously motivated. I'm actually not sure if such lies are better put in this section or the next; after all, we went en masse to a movie entirely about lies two men tell to get women into bed and made heroes out of them.

But more to the point, we seem to accept the lies and exaggerations that make up singles bar flirtations as part of the cost of doing business. We discount what people say in situations where they have an incentive to bend (or break the truth)

We punish these lies, but not all the time nor often severely. A cad who develops a reputation as such will be punished by having the efficacy of his or her lies diminished, by having the veracity of even true statements questioned (pretty sure there's a story about this... a boy, a wolf, crying about it... something), and by just generally being considered a sleazebag.

Particularly in the age of instant information, big lies about things like the Medal of Honor (the issue at the heart of Alvarez) are just so easily caught out. If you tell me you won the Presidential Medal of Freedom, I'm going to ask what for, act impressed, and then google it when you go to the bathroom. The point is that these lies are treated like the fisherman who tells you she caught the big one.

Whenever someone tells you the size of the fish they caught, you subtract inches. (Whether we subtract inches from other boasted figures is... come on: this is a family blog.) But we don't think less of the fisherman most of the time, we just treat it as par for the course; it's an accepted lie. But it's not that these "accepted" lies don't hurt anyone. Maybe not the fish, but I think a compelling case could be made that telling some sorts of lies to get someone into bed "hurts" that person. I don't think that's the appropriate dividing line. As we'll see below, we occasionally valorize lies that hurt others.

No, I think we mostly draw the line at motivation. It's when a lie aims to hurt someone - or to enrich yourself with wanton disregard for others - that we judge the liar for his or her malicious intent, rather than for the lie itself. The lies we accept I think we accept because we understand the self-interest of the liar but don't attribute a devious or malicious intent to hurt others. We would judge Owen Wilson and Vince Vaughn's characters a lot more if they lied to women to get them into bed with the express intention of breaking their hearts later, rather than in an effort to find some no strings attached sex.

Lies We Like
There are times when lying is socially acceptable, even the preferred path. Lies to spare someone's feelings - white lies - might save someone needless angst. There are lies with noble purposes; few people - with apologies to Kant - would say it is never morally acceptable to lie.

Two final examples. First - and with an admittance that this is trite - bluffing. Because it's sanctioned by both the official rules and informal practices of poker, intentionally deceiving others with the aim of self-advancement is an admired skill.

On a more serious note, the ability to mislead others as to your aims and needs to secure an advantage is a taught a valued skill in the business world. Negotiators assume that not all is revealed and that misrepresentation will be a part of the game. And yes, fraud and negotiating in bad faith may lead to concrete legal action. But a certain degree of artful misrepresentation can be an admired - and lucrative -  trait.



The Problems with Alvarez
Just a few points to recap and tie this all to Alvarez. First, not all lies were created equally. Some are good, some are bad, some are really bad; some are illegal, some are irritating, some are celebrated. But the law at issue in Alvarez doesn't really do much to say why we ought to put lies about military decorations in one box rather than another. Much has been made of the fact that it doesn't hurt others, as we require of other criminalized lies like fraud and slander. But I'm not totally convinced this is a fruitful angle. While that does seem to make the Stolen Valor Act an anomaly, it skates right over the fact that there are hurtful lies we don't criminalize. Things are more complicated that might otherwise appear.

Congress seems to have just assumed that lying about such honors is a repugnant enough act that we would all agree it out to be outlawed. This is certainly debatable, but even assuming it is that repugnant, it seems pretty clear that mere moral repugnance isn't usually enough to criminalize speech. In fact, we have a pretty long, storied tradition of free speech in this country that indicates the contrary. Without getting any deeper into the tangled web of First Amendment jurisprudence, let me leave it at this. Lying about military honors seems to fall into the category of speech that we find troubling enough that we punish it socially, something akin to rampant lying at the bar that is bound to catch up to you. We also tend to err on the side of allowing speech when we aren't sure about criminalizing it. I'm not as concerned with the line-drawing that's consumed the legal commentariat, but I do think the conversation is lacking awareness of the social rules that surround lying. Take this as a small step in the other direction.

Weekly Round-Up for March 16th

As always links, to some of the most interesting stories from the week:

Stanley Fish writes a great, provocative piece in defense of double standards at the New York Times.

At Salon, an interview with author Julie Berebitsky about her new book on the future of sexual harassment. 

Richard Zack's new book details Teddy Roosevelt's efforts to clean up vice in New York, and the usually futile efforts of moralistic legal crusades.

Dahlia Lithwick takes Virginia to task for dragging its heels in failing to tell ex-cons that DNA evidence exonerates them after all. 

David Brooks explores some of the challenges we face with an aging world population. Surely some legal challenges loom as well.

Why do corporations fight disclosure regulations so hard? David Sirota tells you. 

Fascinating exhortation from Patrick Hruby for NCAA players to go on strike. Very provocative.

Law and Society in a microcosm: Amanda Erikson explains how rules and attitudes around playgrounds shape us.

Eight law firms added 20 new law schools to the list of those they are suing for deceptive practices in reporting job placement rates. 

Irin Carmon discusses the law, rhetoric, politics and society surrounding contraception. 

At the Atlantic, Julie Barnes explains how our laws are making us sick - not just of politics, but actually sick.