Thursday, March 30, 2006

I Direct You Elsewhere To Get Your Rage Fix

I'm sorry for not blogging these past few days--I'm suffering from the flu, and being a big baby about it. I can take care of sick children, but when I'm sick I tend to just lay in bed all day listening to NPR.

But in the interim, may I direct your attention to various writings about Duke Lacrosse team/Rape tragedy. I plan to follow up myself with a discussion of U.S. v. Morrison's prohibition against federal remedies for gender motivated violence when I'm less loopy and off the 'Tussin.

NY Times:

Rape Allegation Against Athletes Is Roiling Duke
(Sports page coverage instead of National?! Amazing that I had to hear of this through the blog grapevine instead of on the front page)

Duke Players Practice While Scrutiny Builds

Feminist Law Profs:

Duke Lacrosse Players Accused of Gang Rape

Ancrene Wiseass:

The Fruits of Entitlement

A fantastic post on the Duke story by a Duke student

AW's post on The Fruits of Entitlement is well worth sharing:

I learned about this horrifying story--the result of a toxic mixture of entitlement and race, gender, and class issues--via medievalist.

On March 13, white members of the Duke University lacrosse team apparently strangled and raped at least one of two black women they hired as exotic dancers for a party after shouting racial slurs at both women and threatening to rape them with a broomstick. The woman who's spoken out is a single mother of two who is working for an escort service in order to pay her way through college at the neighboring, historically black N.C. Central University. The lacrosse team has closed ranks and refuses to offer any information about the incidents: Durham authorities have had to order DNA tests for all team members in order to discover who was directly involved in the crime and are asserting that they'll also bring charges against those who stood by and did nothing.Rachel of Alas, a Blog is urging other bloggers to post about this in order to make sure the news gets out. "Why?" you might ask.

Because, as Rachel points out, major media outlets like ABC are glossing over the most heinous aspects of this hate crime, and as Word Munger notes, are reporting on how it negatively affects Duke's lacrosse team "at the height of its season." Yeah. Because that's what we ought to focus on here.Apparently, this is far from the first illegal incident at the house where the lacrosse players lived. Duke had gotten so many complaints about this house and other off-campus party houses that it simply purchased them--rather than having to deal with the town-gown issues that arose over them--and rented them back out to the misbehaving students. Q Grrrl comments over at Rachel's place about many prior events at the lacrosse house, reportingI lived across from the main lacrosse house for 7 years — and I can no longer count my calls to 911. In fact, a call I made a few years back resulted in 67 citations for underage drinking — the coach didn’t bat an eye. Similarly, I know that at one point, campus women were aware of sexual assault and harassment by lacrosse players. The house they lived in was repeatedly toilet papered — and once, upon seeing the black-clad women tp-ing the house, I asked why. Their reply: to warn other undergraduate women that a woman had been assualted while at a lacrosse party.The Univ. has always rather palidly responded to the actions of the lacrosse team(and other student partiers).

So. There are things we can do about this, folks. To quote Rachel:I encourage people to put up the story on their blogs, and put pressure on the University to investigate the team and level some sort of disciplinary actions, and of course this legal system also needs to do its part to put these men behind bars. I think one way people in the blogosphere may be able to help, in addition to agitating for the full force of the law to come down on these men, is by setting up some sort of fund to help this young woman pay for college (if anybody knows how this can be done).I know blogging communities have been able to set up PayPal funds to help others before: would anybody who knows more about the logistics be willing to do something along those lines? I'm down to the last $23 in my bank account, but you can believe I'll kick some money in once I get my paycheck for next month.Meanwhile, here's contact information for Duke University President Richard H. Brodhead. Let's inundate him with letters telling him precisely how much this image of predominantly wealthy, young white men verbally and sexually assaulting working-class black women does for Duke's reputation. Let's make sure he knows how much of an outrage it is that Duke has helped to so indulge these children of privilege that they believe they're entitled to treat people with less socioeconomic power as their punching bags.

Blogs can be powerful tools for getting the word out on issues like this, powerful organizers of grassroots activity to make the world a better place. Let's prove it.And, for those of us who are university teachers and administrators--or who mentor young people in other ways--may this serve as a reminder of why we cannot allow students to persist in the all-too-prevalent sense of privilege many of us are witnessing in the classroom. It may seem far-fetched to compare students who expect to get high grades for poor work to students who expect to rape women with impunity, but the sense of superiority some of Duke's lacrosse players demonstrated last week doesn't come from nowhere.

We have a moral responsibility, both to our students and to our society, to make sure that young people understand that they are not above reproach and that they do not deserve to be treated as exceptions to the rules by virtue of who or what they are. It's a smaller leap than we might think from students who believe classroom or university policies don't apply to them to students who believe the law doesn't apply to them, either.P.S. I will second Pinko Feminist Hellcat's promise to put the verbal smackdown on anybody who dares to imply that the women involved share any portion of the blame for what happened that evening. "No" always means no. Even if you're a sex worker so desperate to support your kids and get an education that you'll go back into a house full of dangerous assholes to do it.

To this, I say Amen. More to follow later on hate crimes and gender motivated violence.


Tuesday, March 28, 2006

The Almighty Professor Dispenses With Dispensing Advice

Or, Miss Lonelyhearts Strikes Again.

Have you read Miss Lonelyhearts? No? You should. It is a wonderfully clever, brutal and bitter little satiric novella by Nathaniel West. The best description of it I've read is by an reviewer:

MISS LONELYHEARTS [is] short and intense, and presents a horrific vision of American society choking to death on its own mass-media fantasies. Probably West's most powerful work, MISS LONELYHEARTS concerns a nameless man assigned to produce a newspaper advice column--but as time passes he begins to break under the endless misery of those who write to him for advice. Unable to find answers, and with his shaky Christianity ridiculed into destruction by his poisonous editor, he tumbles into a madness fueled by his own spiritual emptiness. First published in 1933, MISS LONELYHEARTS remains one of the most shocking works of 20th Century American literature, as unnerving as a glob of black bile vomited up at a church social, empty, blasphemous, and horrific.

What a colorful description. I like the image of vomiting at a church social. That's pretty much accurate, both about the novel and the futile tragedy of giving advice to the hopeless and having to lie to both them and yourself, day in and day out. I don't know where this compulsion comes from, but I've been reading advice columns ever since I was a little kid. Maybe it was because my parents and family worked for the Los Angeles Times as newspaper stuffers--surrounded by newspapers, I read anything and everything. I read Dear Abby and Ann Landers as a kid, and to this day I read the new Dear Abby (Pauline Esther Phillips died a few years ago, and her daughter Jeanne took over) in my local crappy newspaper. Jeanne really sucks compared to Pauline, and gives out horrible advice. Yet I still read it. I also read Cary Tennis in Salon, and for all of you unhappy office monkeys out there, today's column is particularly great.

I myself have some experience giving out advice. For some reason, despite being barely older (and sometimes younger) than my students, in each class I have TA'd, students have flocked to me for pre-law advice. Maybe because the academic advisors were so brutal, telling them they never could be lawyers with their grades/LSAT scores. Maybe because I used to tell people that if you want to be a lawyer, Lord help you, go ahead and be one--there will always be a way if that is your chosen path. Things have changed in three years. Knowing as I do how difficult it is for a student going to a second tier law school (where after the first year they drop the entire bottom 1/3 and there goes $30K); how difficult it is to pass the Bar; how miserable law school can be socially (and also how wonderful but potentially frustrating grade-wise it is intellectually); and how you must really know why you want this career before you pursue it--I'm not as eager to push young, happy surfer dudes into the law.

And yet people will ask. Unwisely, my real life alter ego has both Myspace and Friendster accounts (mainly to keep in touch with law school friends as their emails extensions change from .edu to But I got the following message today. I don't know why to me, because there are plenty of other alums from Bourgie Metrosexual Law School in my network to ask for advice. But apparently, this dude is interested in my alma mater. Identifying details have been edited out and replaced by pseudonyms:

hey wats i feel stupid asking u this question but, what are the ways to get accepted into Bourgie Metrosexual law school. am barely 17 i am stupid i neevr really though of going to colege but now i am its kinda late to apply now.well i got accepted to Online/Chain-Campus Degree Mill Belle Has Never Heard Of and i am majoring in criminal justice for my bachelors degree. ppl keep telling me i should go to Local Metropolitan Community College and go for political science good idea?when i graduate from there is it possible to transfer to Bourgie Metrosexual law skoo?from Obscure Degree Mill? is it a good major criminal justice?? i am really lost right can u help me out on some info?? on what i should do??? plz any info would be grreat. thnx

I am at a loss for words. I swear to you, I did not make this email up. I don't have the genius for that like others do. I am not very fluent in slang/teen speak/abysmal teen spelling, and so I couldn't possibly have come up with all of this. I didn't know that a proper greeting has been truncated from "what's up" to "s'up" to "hey wats." I didn't know that people think that when you graduate from a degree mill college you "transfer" to a Top 20 law school, or "skoo." I didn't know that being "really lost" is something to "laugh out loud" about. Or that people who never "though" about going to "colege" honestly feel that being "barely 17" is too late to apply. Actually, parsing out "am barely 17 i am stupid i neevr really though of going to colege but now i am its kinda late to apply now" is more than Noam Chomsky could handle. I don't have any personal feelings about "pre-law" majors, and so I don't know what advice I could give to this young man about what he should major in or which school he should go to. And I definitely shouldn't comment on his chances of getting into a Top 20 law school. I could say a lot of snarky things about his level of sophistication, spelling and grammar, but that'd be mean--what's the point?

I think this is supposed to be cosmic justice for my making fun of the way Richard Delgado answers his "Dear Mom" advice column. Delgado had to deal with this too, but the only error in that letter was misspelling "comming" twice. Delgado was a little flippant in his reply, but for once I can't blame him. I honestly do not know how to reply to this. I don't even know if I will or should. I have been having doubts about encouraging people who, when asked why they want to be a lawyer, answer "What else am I going to be with my poli sci degree?" or "Show me the money" (I'm not making that up!) or "I like to argue." These people should not be encouraged to go to law school. They should be encouraged to backpack through Europe and find themselves, or to go to business school (where the real money is), or to work out some of their aggression issues.

I am much more careful now about encouraging people to go into the law (I have no such reservations about other professions I don't know about though--go ahead! Be a pharmacist!). Unless you demonstrate either the potential or the commitment to this goal (and preferably both), and unless you are aware of all the soul-crushing negatives, and unless you know what you want to do after law school, I think you should seriously reconsider. Law school is enjoyable on an intellectual level, but man cannot live on jurisprudence alone (unless you're a law professor). Outside of the classroom, I kind of hated law school. I definitely hated the Bar and the worrying about summer employment and post-graduation employment. I definitely hated the clique-y, boozy, gossipy environment. I definitely feel sorry for all my friends unhappy in their big firm jobs and unhappy still looking for firm jobs. I had a different goal (one of job satisfaction and happiness) in mind when I entered law school, and I think that's what kept me from dropping out. So I can't in good conscience encourage someone who doesn't demonstrate at least some level of self-awareness, maturity, and commitment to embark on this very difficult path.

Despite all my advice column reading, my lived experiences tell me that the best advice is sometimes the simple truth. Good advice is not merely the parroting of so many motivational self-help "You can do it!" books, or doing the academic planning for a lost young man. I've had students whose girlfriends chose their classes for them (not making that up!) ask me for advice about law school or the LSAT, and I always wonder how much advice I could give them if they are so incapable of personal direction. And it's questionable whether you should always give advice. I'm always open to giving some advice and guidance to the students I teach. I feel that it's a part of the special relationship between teacher and student, and I myself have benefitted inumerable times from the kindness of professors. In fact, I am so indebted to my professors for encouraging me to pursue law teaching that I am somewhat of a student groupie, bringing them baked goods, buying them expensive presents, and asking them to sign my copies of their law review articles (again, not kidding). But do any of us have an obligation to advise complete strangers who email you on Myspace? There is definitely less obligation to advise in the latter case. Also, having been caught in the vicious trap of "advise me on everything/proofread my personal statement/plan all my classes for me/coach me on the LSAT," I've learned to limit myself to a few general pointers and then calling it a day. Yes, I have actually helped people edit their personal statements. Yes, I actually tutored people (for FREE) on the LSAT. And no, I will never, ever do this again unless it is for a blood relative. What has changed is that in the last three years, I grew a spine and learned to say "no."

There's a lively debate in the legal blogosphere about the proper role of professors. Some advise junior profs (or "prawfs") that they do not have to say yes to every letter of recommendation request that comes their way, and that for sanity's sake profs should remember that they are not obligated to cater to every student. Others advise law profs to never give out legal advice, particularly in states in which they are not licensed. (sound advice) In other words, be a good professor, but be good to yourself--and your students--by recognizing your limited role. Or at least how limited it should be. You are not mother/father/Godfather to your students. There are limits to what you can do, and what you should do. You can say no. It is okay to say no.

Be wary, fellow academics, of those students who ask you to do more than write a letter of recommendation or give a few pointers about their academic/career plans. Be wary of those students who want you to fix their lives for them, and as if by magic give them hope, direction, conviction and potential with one fell swoop of the pen. You cannot do that. You are not the GodProfessor. Do not apotheosize yourself. You can give a few gentle suggestions, and then hope that they find their own way. You are not responsible for every wayward student that you come across. You cannot fix every broken life that you encounter. You cannot determine your own future, let alone the futures of the thousands of students you will encounter in your lifetime.

We think we have great power because we do great things. We write about Big Important Ideas. We stand behind a podium on a stage, dispensing wisdom like Moses from the Mount. We inspire students to learn, and give them Knowledge and Truth. We have the power to determine value, i.e. give out grades. With one stroke of the pen, value is given, and futures are affected.

The pen is mighty. But it is not almighty. Don't kid yourself.


Monday, March 27, 2006

It's A Wonderful Life When Banks Don't Fail

I like reading modern arguments for New Deal programs, and I like it even better when they reference Capra Movies:

From Slate: Why Don't Banks Fail Anymore?

The FDIC was one of those awful, socialistic, anti-capitalistic, doomed-for-failure New Deal projects that has, in fact, contributed enormously to the nation's well-being. "No depositor has lost a single cent of FDIC-insured funds as a result of a failure," as the FDIC proudly notes. And it certainly hasn't inhibited the banking industry from growing.

U.S. banks endured the wretched period between 1980 and 1993, in which 2,500 banks and savings institutions were swept away. FDIC Chief Economist Richard Brown says 1980-93 was "a 100-year flood" for banking. Deregulation in the '70s and '80s led to massive industry expansion without a concomitant rise in risk-management capabilities. And rolling regional problems—woes in the farm belt and New England, manufacturing recessions in the Midwest, real estate speculation on the coasts, and the savings and loan crisis in the Sun Belt—produced gigantic failures.

But the industry learned its lessons. The combination of government oversight, competitive pressures, and improved risk-management has massively reduced the chances of large-scale bank failures.

And for more on the War on Socialism:

The Bushies' War on Franklin Roosevelt:

Why are today's Republicans so hellbent on changing Social Security? Clearly they're not driven by concern over government deficits. After all, they've engineered a taxing and spending regime that intentionally created record deficits. And it can't be that they oppose entitlement programs as a matter of principle. Medicare has an unfunded liability larger than Social Security's, and they just expanded it a couple of years ago with the prescription drug benefit.

Maybe it's because Social Security is an opportunity to refight—and perhaps win—a series of arguments the Republicans lost badly 70 years ago. To put it another way, it's a chance to knock down Franklin Roosevelt, finally. "For the first time in six decades, the Social Security battle is one we can win," Peter Wehner, Bush's director of strategic initiatives, wrote in a memo to supporters in early January.

Dead going on 60 years, FDR still makes self-styled champions of American-stylemcapitalism fulminate, much the same way their counterparts in the 1930s raged against "That Man." Why? The New Deal era reminds national greatness Republicans like Wehner of their party's futility in a time of true national greatness. I also suspect that many Republicans are simply unable to forgive Roosevelt for what may have been his greatest and longest-lasting achievement: saving American capitalism through regulation. And since they can't tear down the Triborough Bridge or the Hoover Dam, these guys act out by going after Social Security.

The theory that new taxes and regulation would inevitably hamper economic growth and destroy America exerted a powerful hold on the minds of the business establishment and the economic right in the 1930s—just as it does today. FDR's proposals seemed to fly in the face of everything these experts knew about how the economy works. In particular, FDR upended the hallowed equation: taxes and regulation equals tyranny and depression.

But a funny thing happened on the road to serfdom. FDR may have gone too far on occasion. He was great, not perfect. And the consumer-based economy that defines our age emerged only after World War II. But the economy did come back to life. Gross domestic product rose 90 percent between 1933 and 1941. Far from turning the United States into a Western version of the Soviet Union or Nazi Germany, the New Deal allowed the United States to function as the world's bulwark against both. The institutions that stood at the heart of the American experiment—representative democracy, the separation of powers, a system of managerial capitalism, liquid capital markets—survived in a world gone mad.

It's difficult to discern the short-term political gain for Republicans to try to dismantle Social Security now. So the payoff must be more psychological or intellectual. Now that they indisputably control all three branches of government, Republicans finally have the opportunity to slay some of the liberal demons that have been bedeviling them for so long.

For 70 years, conservatives have been telling us that the American economy—whether it's in recession or whether it's booming—is laboring under the shackles of the burdensome taxation and misguided regulation placed upon it by FDR and his successors. Somehow, stocks would do better if the SEC were weaker and we'd all be wealthier if seniors weren't guaranteed a minimum income, funded through payroll taxes. But America's economic mastery since 1945 has served as an ongoing and constant refutation of their most dearly held beliefs. It still does today. As George Melloan concedes, "The New Deal basically expanded the reach of government, and things worked out OK." Actually, they worked out great. Some people still can't get over it.

It is strange to be a 21st century New Dealer, but stranger things have happened.


You Can't Take It With You

One of my favorite feel-good movies of all time (I have a list of feel-demoralized movies too) is Frank Capra's You Can't Take It With You. I recently watched it again, and kept thinking of the Kelo eminent domain decision. But that is what law school does to you. It robs everything of its purely aesthetic value as you analogize everything to the law (since law school teaches you to analogize to everything) until you're muttering similies like so many cursed prayers under your breath. Law school also teaches you to go for easy to digest plattitudes like "I may not agree with what you say but I will defend to the death your right to say it" and "with great power comes great responsibility." Oh wait, I learned that last one from Spiderman. But anyway, plattitudes are good. "You Can't Take It With You" is one of them.

In the movie, Jimmy Stewart plays the heir-to-be of a giant corporation owned by his father, played by Edward Arnold. The corp is in the business of buying up property from poor people and then redeveloping it (see the Kelo connection?). Complicating things is the fact that Jimmy Stewart is not terribly enthusiastic about the family business--he's only enthusiastic for his fiancee/stenographer (ah, the days before sexual harassment prophylactic policies) Jean Arthur (totally different than her role in Mr. Smith Goes to Washington). Complicating things further is that Jean Arthur lives with her zany clan in a house that Edward Arnold wants to buy. The clan is headed by the wonderful Lionel Barrymore (you may remember him as the evil Mr. Potter from It's A Wonderful Life) who collects stamps and plays the harmonica all day. Jean's sister makes and sells candy, which she calls "Love Dreams." Jean's brother-in-law makes explosive fireworks and unwisely decides to market them as "The Revolution" (ah, the Red Scare! The Eugene Debs era!). The zany clan (and the all-but-condemned house) grow to absorb other oddball characters, like a frustrated former bank clerk who leaves his job to make inventions. And this is the family that Jimmy Stewart wants to marry into. And this is the only house on the block standing in Edward Arnold's goal of redevelopment (and millions in wealth). Chaos, hilarity, broken hearts, reunited halves ensue. It's a great movie. The title? It's what Lionel Barrymore (what the heck happened to that great acting lineage) asks Edward Arnold in jail--why do you want to pursue wealth so much? What does it get you, other than bad health? Wasn't there a time of simple pleasures? Do you like playing the harmonica? Do you know Polly Wolly Doodle? And finally, Lionel Barrymore says it: "You can't take it with you, you know."

As you can see, I like Capra movies. They help me feel good again after I watch my feel-demoralized movies like any film based on an Andre Dubus novel. Capra movies are rich in simple morals and political references. Good things for a lawyer trained to remember 1) dont commingle client/personal funds and 2) always try to ruin a good aesthetic experience by comparing it with the law. Yet I am struggling with this particular moral.

It's not that I'm a gold digger or extreme wealth seeker. When a man picks me up for a date, I fail to notice the make and model of his car (I do notice if it's clean, but I figure that's just hygenics). I don't ask the man how much he makes. I don't notice the designer of his watch. Nor do I particularly care. I wonder if I should though, because what if one day I'm kidnapped and dumped somewhere and can't identify the car that took me? But anyway, I watch way too much Law and Order. But my real problem is that I'm a pack rat/bibliophile/clothes horse. Despite the fact (or maybe because of it) that I buy everything on sale or at steep discount, I have a lot of stuff. Most of my clothes I've owned since college, or even before. And growing up poor and with few possessions, you tend to want to keep it all and bring it all with you wherever you go.

I'm moving in 4 months and I am struggling with how much to bring with me. I am pretty well settled on Liberal College Town, despite the fact that this week I am waiting to hear the regrets from Elite Secret Society Law School and WASP-y Privilege Law School. The good thing about Liberal College Town is that it's a manageable road trip. So I can actually drive up a lot of my things rather than ship relatively few of my things. And despite bringing only half of my clothing and 10% of my shoes and purses (I am a girl, who went to bourgie metropolitan law school--sue me) I have a lot to bring up. Let me just make it clear: I'm higher maintenance than many (despite being Buddhist, I am not an ascetic) but a lot lower maintenance than every girl who would have disdained my Old Navy shopping habits (pretty much most of the girls at Bourgie Metro-Sexy Law School). So you know, I have a lot of stuff, and a lot of it I want to take with me.

So what am I bringing? Well, here's a few lists:

Things I never fail to bring with me no matter where I move:
  1. Framed pictures of family, kids, and friends
  2. Photo album with the same
  3. A figure of Buddha
  4. The Collected Stories of Flannery O'Connor
  5. The Collected Poems of T.S. Eliot
  6. David Copperfield by Charles Dickens
  7. The Workshop, a collection of Iowa Writers' Workshop short stories
  8. Books by David Sedaris, Sarah Vowell, and David Rakoff (holla if you love This American Life)
  9. A few Calvin and Hobbes collections
  10. The Casebook of Hercule Poirot
  11. The Concept of Law by H.L.A. Hart
  12. Law's Empire by Ronald Dworkin
  13. The Morality of Law by Lon Fuller
  14. A scarf my sister knitted me
  15. A few pictures that the kids drew in which I made them write "I Love You, Aunt Belle" somewhere in the picture
New additions to this list since law school:
  1. Critical Race Theory, ed. Kimberle Williams Crenshaw et. al.
  2. Critical Race Feminism, ed. Adrien K. Wing, et. al.
  3. Race, Racism and American Law, ed. Derrick Bell
  4. Foundation Press' Turning Point Series books on Equal Protection (Louis Seidman) and The Commerce Clause (Dan T. Coenen)
  5. The Miner's Canary by Lani Guinier
  6. That stupid leather portfolio thing that you use in presentations
  7. A wheeled backpack
  8. A nice pen that costs more than a week's worth of groceries
  9. Something that gives me pure joy, so that I might endure the moments of abject sorrow inflicted by law school
  10. Advil

Of course, I'm bringing loads of research/books I've done this year on federalism and hate crimes laws, but that's too much to list. Besides, this is stuff I would take no matter what I was studying next year.

Movies I'm Packing:
  1. Roman Holiday
  2. Sabrina
  3. Breakfast at Tiffany's
  4. Mr. Smith Goes to Washington
  5. You Can't Take It With You
  6. Kung Fu Hustle
  7. Shaolin Soccer
  8. Mutual Appreciation
  9. Das Boot
  10. The Incredibles
  11. Star Trek TNG DVDs

(I would bring more, but I don't have any more movies, and because I have no money I tend not to invest in this medium since I'm actually trying to cut down on passive entertainment. (most of these movies were given to me) This by no means encompasses my excellent/eclectic taste in film, although it gives you an idea of where my tastes range. However, it does not tell you how much I like old westerns, action movies and Merchant-Ivory productions)

Greatest Invention Ever, Allowing Me to Leave All The CDs at Home:

My Ipod. It may be a first generation 4G mini that they don't even make anymore, but that combined with a decent hardrive and I don't have to buy/bring discs anymore. Again, I'm too poor right now to invest in a new one, and I have books I need to buy. A higher maintenance gal would go for the Gucci shoes or the blinged out Ipod. I demonstrate to you my nerd bona fides.

Signs You Are Growing Up, Or At Least Entering The Oxymoronic Parodoxical Universe of "Business Casual":
  1. You own at least 2 good suits and several button down blouses
  2. You own 6 blazers (outside of the suits) that can make any outfit lecturer-ready.
  3. You own a lot of panty hose. You actually wear panty hose.
  4. You own more slacks/khakis than you do jeans
  5. You own more twinsets than sweats
  6. You can't imagine moving anywhere without packing your suits and a good pair of pumps in case you have a conference/reception/roundtable to attend.
  7. You always pack a black cocktail dress "just in case"
  8. You own jewelry that wasn't purchased from a street vendor
  9. Casual to you means not ironing your jeans after they come out of the dryer.
  10. No one of consequence would ever catch you without brushed hair or subtle, profesional makeup.
  11. You own more than one fancy "I could buy groceries with what this cost" perfume.

Indications I'll Never Be an Ascetic:
  1. "Packing light" means only bringing up three pairs of black flats, one pair of dressy pumps, one pair of stilettos, two pairs of sneakers, one pair of boots, and three purses (from a collection that could multiply every one of those categories by 3)
  2. I can pack 9 pairs of khakis/slacks and still leave 5 at home for when I visit
  3. I am only bringing up 4 coats/jackets, and I own more than twice than that despite living in a very temperate climate.
  4. I have to choose between 5 pairs of pumps in deciding which one to pack.
  5. If a handsome Brit named Seamus offered to whisk me away that very moment to the moors of England to come live with him and be his love, I'd ask if I could go home and pack a few things. Like a few textbooks.


Friday, March 24, 2006

A Post On Duncan Kennedy

(Blawg Week Continues.)

A reader emailed me asking me what I thought of Duncan Kennedy. Kennedy is best known for being a founding member of the Critical Legal Studies movement, writing "The Critique of Rights", arguing that formal guarantees of rights create a repressively tolerante legal atmoshere. In other words, rights are just the state tossing you a bone--they are insuffiicent to give anything really politically valuable--rather they give the impression of fairness while perpetuating patterns of racial, economic, and class subordination by maintaining collective passivity. Kennedy also wrote a very famous piece entitled "Legal Education and the Reproduction of Hierarchy," arguing everything you've ever suspected of the White Man's Country Club. It's not terribly revolutionary, and doesn't use any empirical data or even anecdotal evidence.

In sum, Kennedy is critiquing privilege while in the seat of privilege. This does not mean we should not acknowledge the obvious fact that hierarchy exists and is reproduced by legal education. I can't tell you how many friends I have who are chasing/living that starting $135,000 big firm dream, and how many of them have acquired and refined their bourgie tastes. I myself entered law school not knowing the difference between Zinfandel and Pinot Grigio, and I left it vowing never to drink something labeled "Arbor Mist" or "Charles Shaw." There is of course hierarchy, and rights of course are not incredibly effective means of changing social values and norms or restructuring governmental obligations. (So, when's the last time you've read about the Voting Rights Act violation being prosecuted?) But what to do about it? I agree with Kennedy's basic thesis while questioning his methodology and his proscriptions (or lack thereof).

My response:

I can't comment on Kennedy without going through how I personally experienced Kennedy, so I apologize for injecting myself in the analysis. I promise you though, that I am using my personal experience only to situate Kennedy in modern American jurisprudence as it is taught to American legal scholars, and that my legal analysis will be objective.

I first was introduced to DK in a college Jurisprudence class. I have not read him again until tonight. At the time, it seemed revolutionary. Of course, at the age of 20, EVERYTHING is revelatory and revolutionary. At this age, a young girl like me is getting her first blush of political awareness and activism. Has anyone else ever said out loud "The Personal is the Political, the Political Personal"? It's at this age when you're either pushed or rescued from the edge of Libertarianism, a curious affliction that plagues many Americans reared on a diet of Ralph Waldo Emersonian "Self-Reliance" and Ayn Randian "Objectivism." This is why Americans appear so vehemently anti-socialist, anti-taxes, and pro Reaganomic small government trickle-down economy. This is why we don't have universal health care and why there are so many homeless children. These ideas of course exist in tension with the American desire to pass the buck--which is why we revolt if our roads are unpaved, if our military does not adequate defend us (not that we'd join the military) and why we blame Government whether or not they do something. So for the person straddling the line politically between being socially liberal but raised to be anti-taxes and anti-socialist, libertarianism is very attractive--and Marxism completely revolutionary.

I mention Marxism because that's basically what DK and the CLS scholars were. They "trashed legal rules" (Mark Kelman) and "critiqued rights" and imputed "the hierarchy and hegemony of whiteness and capitalist values" in EVERYTHING. I'm not saying that they were wrong. In fact, a lot of their stuff I kind of agree with to a certain extent. But they were basically marxist deconstructionists, eager to critique and trash everything but offering nothing to replace that which they have declared the valuelessness of.

I haven't read DK for years. Not since college. To me, he isn't that revolutionary or important anymore. WHat he did may have once been revolutionary, but it became stale. Why? Because deconstructionism offers nothing in its wake. Like I said, as a young student it is revelatory and revolutionary, but as you grow older you realize you want something more than a trashing of legal rules. You want to ask, and be answerd "And then what?" You want options and alternatives. You want real politik and not just idealistic abstractionism.

You are probably aware that I did most of my coursework in Critical Race Theory. I did love it once, and yet I am feeling similarly bereft, asking "and then what?" Yet CRT had two important critiques of CLS. Ironically, for all CLS complained about white hegemonic values, they were all old white guys making these arguments. CRT came along asking "and what about us?" CLS had no answer. With respect to the critique of rights, CRT scholars pointed out that we should not just "trash legal rules" and "critique rights"--as limited a vehicle as normative legal rights are, they are important and do important work for minority groups. DK would have you believe that rights are meaningless compared to other forms of social/political change like social norm change (the idea that racism is bad) or regime change (let's toss out the Constitution)--I would agree that while rights are limited and slow in achieving their effect (and severely constrained by interpretation), they are very important nevertheless. No one would deny the importance of the Civil Rights Amendments. They have done incredibly important work, and that is why we should be worried when their power for corrective justice is constrained. (I am interested in the Section Five enforcement power of the 14th Amendment).

When I think of Duncan Kennedy, I inevitably think of my own journey through jurisprudence. From first blush politcal awareness ("Oh my God, Legal Rules are Arbitrary and Meaningless, Reproducing Hierarchy--How Revelatory!) to current dissatisfaction with what is left after everything has been deconstructed. That is, now that I am aware, what am I to do with this awareness? Kennedy does not tell me what I can do. He only tells me what is wrong. And I need more than that.

That said, Duncan Kennedy and the CLS group did valuable work in trying to dismantle the idea put forth by Herbert Weschler--that there are legal neutral principles to be distilled and applied neutrally, like so many exact teaspoons from recipe to recipe (or case to case). Weschler remains one of the most cited authors to this day, despite decades of CLS and CRT arguments to the contrary that the law is neither neutral nor easilly distilled. The law is infected with hierarchy, white hegemony, and racism--and that is the important point to take away from CLS and CRT. What to do about it is up to each scholar in how s/he interprets the project.

I suspect a big problem with DK is his writing style. I know he is a big smart guy and I am a lowly microorganism by comparison, but I don't really like his style. I can't believe he refers to some theorists as "fancy theory"--what is that? Also, he rambles for pages, critiquing and complaining, without offering any hard data (a problem among my kind) for how law school reproduces hierarchy and how rights are meaningless. Hell, he doesn't even offer anecdotal data. He just talks and talks, as if this were all common knowledge. It kind of is, having been through law school, but in an academic treatise you expect more. I think I have the same problem with him as I do Delgado--nice ideas, until you think about them a little more after the moment of revelation passes, and horrible delivery. These are, after all, Big Smart Guys, and as anti-hierarchy as they are, they make sure you know it--so they often sound full of themselves.

Finally, I'll to situate Kennedy in the jurisprudential canon. I am no expert in jurisprudence, although it's an academic hobby of mine. But here are a couple of professor's takes on it:

Larry Solum's list of Immortals in Legal Philosophy:

Oliver Wendell Holmes, Jr.
Karl Llewellyn.
Hans Kelsen.
H.L.A. Hart.
Niklas Luhmann.
Ronald Coase.
Richard Posner.
Joseph Raz.
Ronald Dworkin.

Notice no one from CLS is in there. I know no one from CRT is in their either, but I've never reallythought of CRT as jurisprudence, at least in the legal philosophy sense. DK would probably argue that he should be since he does work theorizing about rights and semiotics and stuff.

Here's Brian Leiter's:

I agree on Holmes, Kelsen, Hart, and Llewellyn; am uncertain about Posner and Raz; and am skeptical about Coase, Luhmann, and Dworkin.

Let's look at the schools of thought among the immortals. Kelsen and Hart are THE greatest thinkers about sovreignty and legal positivism in the past 20th Century. I still go back and read their works each year. Llewellyn represents Legal Realism, the precursor to CLS, and by far more important (ever hear "judges are just politicians in black robes"?) The idea that there is bias and politics in judging is important and still has traction today Posner is Law and Economics. I'm not a huge fan of L&E, but as a person intersted in empirical legal studies I am aware of its importance in introducing the idea that there can be empiricism and rationalism in the law--this is a dangerous idea if misapplied (see work by Richard Sander) but it is always good to remember that abstract theory should acknowledge the usefulness of real world data. Dworkin has fallen out of favor among legal philosophers lately, just because he's not as good as Hart and Kelsen. His work is somewhat incomplete--he wrote great natural law books (Taking Rights Seriously, Law's Empire) but his ideas don't do as well held up against Hart (see the Hart-Dworkin Debates). Raz does work on the character of the law's normativity and the nature of authority, and I think he ought to be immortal--it's amazing work. Coase did a theorem trying to make law scientific and no one uses it. I tried to use it once. It was bullocks.

To this list, if you're interested in legal theory, I would add Lon Fuller--The Morality of Law. If you're interested in deconstructionism, I would try to stomach some more CLS, and then hop over to CRT. Specifically Chuck Lawrence's "Unconscious Racism", and then for a very recent behavioral psychology analysis of the same, try Jerry Kang. I would also read Cheryl Harris' "Whiteness as Property" and Kimberle Crenshaw's "Intersectionality." Just for fun.


Thursday, March 23, 2006

A Young Whippersnapper's Defense of Old Fogies

I'm a young whippersnapper. I just turned 25 last October, and while I'm not one of my friends who's an assistant professor at 27 (and was a fellow/lecturer at 25, without the clerkship, the high-pedigree school), I'm young enough to annoy a lot of people. Most of my friends entered law school after taking a few years off to work, and so I'm always the one who does not own the original LP of "Bad." I get most of their 80's references, but not all of them. I imagine that when I'm a junior faculty member, things will only be worse. It therefore behooves me to add a few more years of experience before I go on the market. So I'm planning on 3 years for the LLM/JSD, and then 1-2 years of clerkship and going on the market at the same time. In other words, I hope to be a professor by 30, 32-3 at the latest (if I don't get any interviews/call backs/offers the first time, I'll try a teaching fellowship). That's pretty young, but normal enough. Most professors come out of practice and start looking for a job in academia in their mid-to late 30s. And considering how happy you are at the best job in the world, you're getting paid to do work you love. Oh, how I would love to be that young whippersnapper a little too eager in the faculty meetings, getting paid to do what I love. I would even listen to the aged senior colleague with exquisite deference. I would gorge myself on really bad hors d'oeurves. I would stifle yawns with delicate grace.

As junior law faculty attain seniority and tenure, it just gets better and better. You get well paid and you're doing work you love and you can't get fired. There's an old professor at my law school who had a cabin in Vail, CO that he auctioned off for a week's vacation at the annual public interest auction. I think that because of the tenure/pension system (I went to a public school), the old fogies didn't resent the huge signing bonuses used to recruit hot new talent. I may be wrong. But I can't imagine much bad blood between Senior Faculty with the Mcmansion (bought from years of practice + teaching) begruding the junior faculty trying to buy a duplex in this real estate market. Generally, I think the senior faculty and the junior faculty get along well enough to survive faculty meetings and receptions without fights breaking out and pacemakers failing.

I say this, not because I'm a young whippersnapper seeking to ingratiate myself to my future old fogie tenure-determining senior colleagues (xoxo), but because there can indeed be bad blood and tension between older and younger workers in other markets. Just watch In Good Company, where the Dennis Quaid 52-year old ad exec is replaced by 26 year old MBA whiz kid Topher Grace. It's a lot harder in the at-will employment market.

And all the players be hatin'. Just look at these two articles from Slate:

From "Fire Grandpa! Hire Junior!":
The typical young person is worth more than he or she is paid. Young people who feel that the odds are stacked against them turn out to be right.Older workers, on the other hand, tend to be overpaid relative to what they produce. This is not because they are less productive than the young—although many important skills do start to decline at the age of 30, or even earlier—but because they are paid so much more. Decades of economic studies have produced the conclusion that average wages increase with age almost until retirement, yet average productivity seems to be flat or perhaps even declining after the age of 50. (The studies are not unanimous, because productivity is very hard to measure, and, of course, the averages hide huge variations from job to job and person to person). Age discrimination is much more of a risk if older workers are indeed paid well relative to young ones: It means older people are the ones managers want to sack to save a bit of cash.

And from "Bygone Age: Old Age is Changing. So Should Social Security":

Don't get me wrong. I hope you have a long and happy life. I just hope your kids don't end up paying one-fifth to one-third of their incomes to subsidize your retirement and mine. Because that's what awaits them: more and more boomers living to age 65 and beyond, perfectly healthy but collecting checks for decades. To head this off, we need a radical change in Social Security. I'm not talking about privatization. I'm talking about rethinking, and possibly abolishing, the whole idea of payments based on age.

The problem is grimly detailed in "65+ in the United States," a report released last week by the U.S. Census Bureau. Five years from now, the boomers will start hitting age 65. By 2030, we'll have more than twice as many old people as we did three years ago. As a percentage of the population, this increase is enormous. In 1935, when Social Security was established, about 6 percent of Americans were 65 or older. Since then, the percentage has doubled. By 2030, it will have tripled. Not only are more people reaching 65—they're living well beyond it. The experience of being 65 to 74 has changed so radically that the Census Bureau now calls this group the "young old."So, all these young old folks are working longer, right? Wrong. In 1950, more than 45 percent of men 65 or older were still in the labor force. By 2003, that percentage had plunged below 20.

It's wonderful that Social Security brought so many old people out of poverty. But the point was to subsidize those who couldn't work, not those who could. The program's founding document said it would support old people who were "dependent," "beyond the productive period," and "without means of self-support." In 1935, that described people around age 65. Today, it more accurately describes people a decade older. The intuitive remedy is to raise the retirement age well beyond the measly increases currently scheduled.There are four obvious problems with this proposal. The first is that if we ask the young old to keep working, somebody's going to have to hire or retain them. This won't be easy. We all know
that age discrimination is rampant in our economy and our culture. But we've seen this problem before, and we've shown it can be dealt with. As the census report notes, the 1967 Age Discrimination in Employment Act and subsequent related legislation raised the employment rate among older workers.

The final objection is that Social Security is a trust fund; you made your deposits, and you're entitled to your withdrawals. But if you think the reason you'll live longer than your grandparents is that you're a better person, think again. Programs such as the ones Congress debated this week—Medicare, public sanitation, and biomedical research—bought you longer life and better health. Maybe, instead of asking what your country owes you at 65, you should ask what you owe your country.

I think these articles are incredibly interesting for a number of reasons. First, I loved my employment discrimination law class, and it's always interesting to me to see how often employment related news/controversies come up in the mainstream media (I say that not in opposition to the blogosphere, but rather as opposed to legal academia, listserves, etc.) For another, it's an area I want to pursue in my scholarship--federalism issues in welfare distributive programs and how they impact a disadvantaged group--in this case, the aged. And finally, the value arguments expressed in both articles are interesting if representative of the changing sentiment towards older workers. I believe that they are, despite AARP's best efforts.

For one thing, guaranteed penions have been declining as major corporations switch to employee contribution/investment plans like 401(K)s. The era of "put in your time, clock out and collect" is over. So while the preceding articles make a compelling argument that older workers collect too much pay for too little productivity and are rewarded even after they stop working--well, that's changing. And I fear that changing the Social Security system (what is up with the animosity in the past 25 years against New Deal and Great Society programs?) will result in an ever expanding class of poor, pension-less seniors who can't afford their drugs (especially with the current debacle of reforming prescription drug coverage).

Like I said, my favorite class was employment discrimination. ADEA helps, but it's not an impenetrable shield against age discrimination. There's plenty of pretextual business necessity, bona fide occupational qualification reasons employers can use to justify age discrimination in the workplace. Moreover, ADEA only applies to employers with 20 or more employees. Thus, it's not hard to imagine a small, local paint supply company letting go of that nice old Henry that you like to make room for Hank. Moreover, these articles ignore the question of how much experience Henry has over Hank. Old age may be mean less productivity, but think of how many hours are wasted training Hank, or covering for Hank's newbie mistakes? Don't get me wrong, as a young whippersnapper I am begging for employment and will be grateful for it. But like I said, I'll listen with deference to my senior colleague. As many good ideas as I can bring to the table, it's innovation combined with experience (which whippersnappers don't have) that makes companies hum.

Thus, I believe these articles make problematic arguments that are in concert with one another--they're basically the same thesis of "Screw Old People, Because They Are Screwing Us." Maybe it's my cultural background, as my people venerate our elders and suppor our parents through old age (your children are your Social Security in Vietnam). Oh wait, I hate that "my people" identity politics kind of argument, and said that I would try to avoid that when building my own argument. No, I say this as a olde school FDR-style New Dealist who believes in the Second Bill of Rights--don't throw away the social contract we have with our aged workers. One day you'll be old too. Don't blame everything on overpaid older workers. Blame it on CEOs who make 400 imes the salary of their average employee. It's surprising to me that in talking about how much corporate benefits have swollen, the authors are not talking about the conditions that gave rise to the Sarbanes-Oxley act. Blame it on the corporate youth culture that tries to attract "new talent" with excessive signing bonuses that reward "promise" not "performance." It's not just pensions. It's the entire system--employer provided health care, globalism, outsourcing, etc. Curious, isn't it, that the solution in our "Fuck the New Deal" not-so-great society is to privatize everything--we're switching from defined benefits to contribution plans, we're trying to privatize Social Security in our "ownership society," and we're trying to privatize health care as we retract employer-provided healthcare rather than take on universal health care.

The most interesting line to me is "Maybe, instead of asking what your country owes you at 65, you should ask what you owe your country"--see how far we have come from our New Deal/Great Society/Social Contract days? Is this what the "ownership society" is all about? Not only to own and control how much you put into/receive once you retire or get sick, but to own the responsibility for the decisions of bureaucrats to shift the system of distributive welfare from their shoulders to yours? You're not just owning your 401(K) accounts--youre owning the government's accountability.

Atlas shrugged, indeed.

(I am a lapsed member of the Objectivist Society, having won the essay contest at 14, and being a card-carrying, newsletter-reading member till 16, when I realized Ayn Rand's books had no old people or children in it--no one who would be in everyone's idea of social responsibility--so I can make that reference/joke with authority).


Wednesday, March 22, 2006

Ex Ante Separation Anxiety

(I did all the girls' hair.)

So I don't actually have kids of my own, although I frequently refer to my 8 nephews and nieces as "my kids." They're not my kids, although by God I have helped raise them. They're my sibling's kids, and only the three oldest siblings. The three youngest siblings (myself included) are unmarried and childless, and at this point I think my parents don't particularly care anymore whether or not they get more grandchildren.

I've been an aunt since the age of 11, and when I wasn't taking care of kids for free I was getting paid (very poorly by they way, day care workers are exploited) to do so by a licensed family day care. I have changed so many diapers I think I have the modern day version of white lung disease (only this time with baby powder and not flour). I am the one that teaches them manners and how to read, and so I worry that when I leave, they'll suddenly become rude and dumb. I have one 14 year old, one 12 year old, two 5 year olds, two 3 year olds, one 2 year old, and an 8 month old. A lot of kids. Many of them still in diapers or potty training which is oh-so-fun for me, their daytime nanny 3 days a week. My weekends are not spent living it up at pharm parties or shopping at trendy boutiques. I live in the REAL OC--in a mixed income and mixed-race suburban track home community (although two of my siblings live in those gated McMansion communities and I don't see them at coke filled swinger parties either), and yes, it's all about the chain restaurant. (See you at the Cheesecake Factory. I'll be the one with the sensible haircut in a a boatneck, capri pants, and back-less loafers with a child at my waist).

So, months before I am to leave for my LLM progam, I'm already worrying about when to apply/how to get in/who to ask to be my faculty dissertation advisor. I figure, this is not good, productive use of my over-planner, prone-to-anxiety energy. So I'm planning my vacations. I have week breaks in both Fall and Spring. This, I think, is calming, constructive use of planner energy. I am fantasizing about taking a vacation to Montreal, Canada, or any other country with a good exchange rate. Then I am thinking, maybe I'll take one of my breaks to go home and visit the kids, since I'll probably miss not seeing them everyday so much it hurts like 8 of my fingers have been ripped off. Then I think, I should probably stay at Liberal College Town and work on my master's thesis, since I can never get any work done at home. The kids pretty much demand that I be with them every hour of the day, such that I look so forward to nap time (when I can do a little bit of work) I consider putting a thimble full of rum in their milk to drug them to sleep. (Just kidding! Don't call Child Services!) Then I think, man, it sucks, deciding whether or not to visit your kids or work on your thesis.

But this is the exact same decision I should have thought seriously about all throughout law school, when I sacrificed personal freedom, my social life, and yes, my grades to be with these kids. Taking an extra hour to sit in freeway traffic on Friday afternoons just to give them their baths and feed them dinner. Not studying all of Friday (spent in traffic) or Saturdy (spent changing diapers) or half of Sunday (spent driving back up) so as not to miss these moments of growing up. I don't regret it. But it was a sacrifice--one that I have to seriously think about making again.

I have the choice, the option, for the first time in a lifetime, to put myself first. And I feel regret even before I make the choice. There will always be regret for every decision. But this truly is a quandary. I used to look with envy at those law students who could take each weekend for him or herself, and use breaks to relax or catch up on work. I should probably take my breaks and work on my masters, or take a real vacation. But I feel guilty for even thinking about not seeing my kids if I had the option to do so. What if they died in a horrible car crash and I never got to see them because I was joie de vivring in Montreal?

I don't know what I'll do with my breaks. I'm just doing some ex ante worrying. See my over-planner tendency? I want to give myself the option to do whatever I want, but I want to remind myself that the time could be best spent two ways, both compelling: 1) finish thesis, rock the LLM, get into the JSD or 2) sing songs about Rollie Pollies with the kids. Is this maturity? Realizing that the choices one makes shouldn't be between hedonism and responsibility, but rather between two different and similarly compelling responsibilities?

Maybe I'll save Montreal for Summer 2007.


Tuesday, March 21, 2006

Don't Do Drugs, or "Be Cool and Stay in School"

So I lied about not "blawgging"--haven't you realized by now that my word is meaningless?

Anyway, interesting tidbit from the NY Times about a class action lawsuit against the Department of Education:

"Federal Aid is Focus of a Lawsuit by Students":

A student organization is suing the United States Education Department over a law that denies federal financial aid to 35,000 students a year because they were convicted of drug offenses while receiving the aid. The class-action suit, which the American Civil Liberties Union is to file on Wednesday in federal court in South Dakota on behalf of an organization called Students for Sensible Drug Policy, names the secretary of education, Margaret Spellings, as a defendant.The named plaintiffs are three students who lost financial aid after misdemeanor drug convictions. They represent 200,000 students with drug records who also lost financial help since the first version of the law was passed in 1998.

The suit contends that the law is unconstitutional because it amounts to double jeopardy, further penalizing students who were already punished by the courts. The suit also argues that the law violates the students' right to due process, and disproportionately hurts African-Americans, who are more frequently convicted of drug offenses than whites.

Interestingly, I entered college at the time the law was first implemented, and remember that FAFSA question (and remember it every year as I beg for money to fund my over-education). While I support these plaintiffs and their legal arguments, I just don't think they'll fly. Especially with this court.

First of all, it is not unconstitutional for Congress under its spending powers to enact constraints on how its money can be used. This is why those living in federally subsidized housing have to be drug free and not share the house drug-using family members at the risk of eviction. This is why you have no right to a federally funded abortion, and why federal Medicare programs are not compelled to cover abortions that are not medically necessary to protect the life of the mother or fetus. Often, this power is used for good as much as evil--this is why states and universities receiving federal aid may not discriminate on the basis of race, gender, national origin or religion. But notice, only those groups, as gender is not a suspect class, it is analyzed under "intermediate scrutiny. Forget about sexual orientation. This is why the recent FAIR v. Rumsfeld case said that the military may not be barred from recruiting on campuses that receive federal aid despite the fact that the military's "Don't Ask, Don't Tell" policies violate the school's own anti-discrimination policies. If you want federal aid, you have to play by the federal government's rules. (see why Federalism is relevant to your life?) So if Congress in its legislative judgment deems the Drug War to be a sufficient reason to attach a few strings on its financial aid so as to ensure that it doesn't subsidize the education of addicts who may further promote the sale and use of drugs--well, that's their legislative ability to do so.

Moreover, the argument about "double jeopardy" sounds just silly. It's true that you can't be prosecuted twice for the same crime (but don't watch that Ashley Judd movie for legal pointers), but it's not true that you can't have enhanced penalties. Just think of doctors who have their licensed revoked for drug use--twice punished for the same crime, yet it's in the public interest so it's okay. The same public interest argument could be made here. It's why we have enhanced penalties for hate crimes, drug-related crimes, etc.

Also, even though this law disproportionately affects blacks and minorities, the Supreme Court has in essence said "So what?" Absence an intent to discriminate (Washingtion v. Davis), disparate impact is not sufficient to strike down a law if it has a legitimate governmental interest (here, to control how federal funds are used to discourage the use and sale ofdrugs) and that the interest is furthered by means rationally related to that legislative goal. I don't even think there's a strict scrutiny test here--there's no suspect class being invidiously affected by this legislation ("drug users" doesn't cut it like race and national origin does) and so under the rational basis test, the government could do anything rationally related to the goal of curbing drug use. If they affect the rights of drug users, who just happen to be mostly black, well then, that's too bad for them.

With respect to the due process argument, I don't buy that either. There is no constitutional right to an education, and thus no right to a federally funded education. The federal government is depriving the students of a property interest to be sure, but one that they have no fundamental right to. Plus, the students arguably have sufficient notice--when they applied for financial aid, eligibility was predicated on whether or not they had been convicted for drug possession. Thus, it's not hard to figure out that any drug conviction would then cancel their eligibility and financial aid.

I'm not saying I like our drug policies. I respect the views of many of my friends who argue that our drug policies are draconian, excessively punitive, and overwhelmingly impact minorities. I don't like them either. But these arguments aren't going to work. I applaud those who try to change our drug laws, but after Gonzales v. Raich, the Supreme Court has indicated that it's willing to set aside it's anti-big government position to allow the DOJ to prosecute those who merely use (not even sell) marijuana for personal, medical purposes despite the lack of evidence that such use affects interstate commerce (see why the Commerce Clause is relevant to your life?). So despite the fact that this law is counterproductive, leading to thousands of young men and women who are denied the opportunity to change the direction of their lives because of prior drug convictions who are then fed back into the system of drug addiction addiction and welfare-dependency--I just don't think it'll change. I may be wrong. I hope I am.

I don't have complete sympathy for the college students (while I support reforming our drug policies, I don't support drug use), but I'm sympathetic to their arguments and what they're trying to achieve through this litigation. I just don't think it's going to work.


Monday, March 20, 2006

You Say Delgado, I Say No Thank You

I should begin with an admission: I'm not a huge fan of Richard Delgado. I used to feel very conflicted about this (and some of you know I'm always conflicted and overwhelmed with existential guilt), because he's one of the "founding fathers" of Critical Race Theory. So when I say I'm not a fan of Richard Delgado, I feel like I'm just adding one more stab of betrayal at CRT. But you know, enough self-flagellation. I've made my apologies to CRT, andI may one day find my way back to it. But I'm actually not sorry at all that I don't like Delgado's work. I'm done with it.

As a terminally-conflicted person, I am usually most conflicted between my populist values and my elitist tendencies. On the one hand, I grew up poor, where even Doritos were a luxury. We slowly got into the middle class as each kid graduated thanks to federal grants and got well-paid jobs, supporting each other through school and paying into this mutual family fund that supports our parents. I thus have an appreciation for all things middle--middle class and middle brow. On the other hand, I'm well educated in the liberal arts, and so I have a definite hierarchical, canonical thinking mind. I won't say "Applebees is the root of all base, American gluttony"--if you like Applebees, and if it's a treat for you and your family the way McDonalds was for mine when I was child, good for you. Treat your family, and enjoy being together no matter where you go to celebrate that Student of the Month award. At some point, my family outgrew McDonalds (we now go to fancier chain restaurants to celebrate things), but we still try to keep things we do as a family more about the family and less about where we go. So I'm not one of those people that says when you're all excited about where you're going to go to celebrate that 3 month anniversary "oh, that restaurant wasn't highly Zagat-rated. I wouldn't go there." Why rain on someone's parade? If you're excited to go, go. I think negative comments can be kept afterwards, and each experience (and palate) is entirely subjective. I rarely ever inform someone of my plans in order to get a rating. I hate it when people say "Oh I've been there, done that, didn't think much of it, but go ahead, go and see if it works for you." That said, I'm not so forgiving when it comes to literature, film, art, and scholarship.

Just as I would bitch-slap someone for saying that Oprah's Book Club obstacle-triumphalizing treacle is as good as say, the lyrical brutality of any book by Ian McEwan or J.M. Coetzee (not to mention Nathaniel West), I would highly question any scholar who thinks that (prolific as he is) Richard Delgado is the best representative of CRT out there. I think the best work has been done, and is being done, by Derrick Bell, Devon Carbado, Cheryl Harris, Angela P. Harris, and Charles Lawrence. Between theorizing about the legal construction of race, (e)racing the 4th Amendment, whiteness as a property value, critical race feminism and unconscious racism-- these are the superstars of the CRT movement. I read these articles and wanted to go to law school and study CRT. I still love reading these articles. They're just amazing pieces of scholarship. They may begin with a personal narrative contextualizing the project, but the actual article itself is just solid legal scholarship. This is another weird conflict of mine--I'm as post-modern deconstructivist as the next lefty academic, but I generally like to keep my own narrative voice distinct from my analysis. In other words, I can inject enough of myself into my work to make sure the reader is aware of my perspective, but I make sure to let that normative narrative voice go when I do the analysis. This has nothing to do with whether I believe in objectivity or identity politics--it's just I like to keep my voices separate and clear. There's preface voice, and then there's the actual article that is supposed to be drawing from more than personal experience or perspective to make its arguments. It's like the book jacket/acknowledgements part of the book, where you learn of the author's journey in writing the book about these Nazi camp survivors, who turn out to be her grandparents, versus the actual narrative voice of the book, which may be omnicient, a third-party, or one of the grandparents themselvs.

Richard Delgado doesn't really like my separate narrativity argument. He likes to confuse things. He writes entire articles in a narrative fashion, writing in the voice of a fictional academic talking to a fictional student. Here's the book jacket blurb: "Delgado (law, U. of Colorado) creates a challenging dialogue between two African-Americans (a brilliant law student and a disheartened legal scholar and activist) whose conversations traverse critical race theory, the black left, the rise of the black right, feminism, and the economics of racial discrimination. "

I can't stand these pieces. For one thing, the professor comes off as a pretentious blowhard, chuckling at his own professorial cleverness, clucking his tongue as he tries to guide his brilliant young protege. Plus, for all the anti-discrimination theorizing Delgado does, he comes off as remarkably elitist and patronizing--these are just two dudes having Grand Conversations about Big Important Things in a cushy teacher's office over pizza. I know they talk over pizza. Delgado writes that in as a part of a scene, I suppose to add some verisimilitude. (I for one have never had pizza in a professor's office, they never seem to have anything to offer)

I can't stand this work! I can't believe it was published in the major law reviews in the country! You don't believe me? Here's the intro to the first of six Rodrigo Chronicles:

"Excuse me, Professor, I'm Rodrigo Crenshaw. I believe we have an appointment."Startled, I put down the book I was reading [ and glanced quickly first at my visitor, then at my desk calendar. The tall, rangy man standing in my doorway was of indeterminate age-somewhere between twenty and forty-and, for that matter, ethnicity. His tightly curled hair and olive complexion suggested that he might be African American. But he could also be Latino, perhaps Mexican, Puerto Rican, or any one of the many Central American nationalities that have been applying in larger numbers to my law school in recent years."Come in," I said. "I think I remember a message from you, but I seem not to have entered it into my appointment book. Please excuse all this confusion," I added, pointing to the pile of papers and boxes that had littered my office floor since my recent move. I wondered: Was he an undergraduate seeking admission? A faculty candidate of color like the many who seek my advice about entering academia? I searched my memory without success."Please sit down," I said. "What can I do for you?"

(turns out Rodrigo is an Italian student seeking to enter an LLM program and the American academic market)

From the section entitled "In Which Rodrigo Begins to Seem a Little Demented" (I am not making that up):

But now, as you can see"-Rodrigo gestured in the direction of the window and the murky airoutside-"Saxon-Teuton culture has arrived at a terminus, demonstrating its own absurdity."*

"But let's suppose for the sake of argument that you have made a prima facie case, at least with respect to our economic problems and to issues concerning race and the underclass. I suppose you have a theory on how we got into this predicament?""I do," Rodrigo said with that combination of brashness and modesty that I find so charming in the young. "As I mentioned a moment ago, it has to do with linear thought-the hallmark of the West. When developed, it conferred a great initial advantage. Because of it, the culture was able to spawn, early on, classical physics, which, with the aid of a few borrowings here and there, like gunpowder from the Chinese, quickly enabled it to develop impressive armies. And, because it was basically a ruthless, restless culture, it quickly dominated others that lay in its path. It eradicated ones that resisted, enslaved others, and removed the Indians, all in the name of progress. It opened up and mined new territories-here and elsewhere-as soon as they became available and extracted all the available mineral wealth so rapidly that fossil fuels and other mineral goods are now running out, as you and your colleagues have pointed out."

"Rodrigo, you greatly underestimate the dominant culture. Some of them may be derivative and warlike, as you say. Others are not; they are creative and humane. And even the ones you impeach have a kind of dogged ingenuity for which you do not give them credit. They have the staying and adaptive powers to remain on top. For example, when linear physics reached a dead end, as you pointed out, they developed relativity physics. When formalism expired, at least some of them developed Critical Legal Studies, reaching back and drawing on existing strands of thought such as psychoanalysis, phenomenology, Marxism, and philosophy of science." What about the exploitive capacity of the colonizing conquistadors? Wasn't the rise of commercial city-states in Renaissance Italy a central foundation for subsequent European cultural imperialism? Most ideas of Eurocentric superiority date to the Renaissance and draw on its rationalist, humanist intellectual, and artistic traditions.""We've had our lapses," Rodrigo conceded. "But theirs are far worse and more systematic."

"What about Rembrandt, Mozart, Shakespeare, Milton? And American popular culture-is it not the envy of the rest of the world? What's more, even if some of our Saxon brothers and sisters are doggedly linear, or, as you put it, exploitive of nature and warlike-surely you cannot believe that their behavior is biologically based-that there is something genetic that prevents them from doing anything except invent and manufacture weapons?" Rodrigo's earnest and shrewd retelling of history had intrigued me, although, to be honest, I was alarmed. Was he an Italian Louis Farrakhan? "The Saxons do all that, plus dig up the earth to extract minerals that are sent to factories that darken the skies, until everything runs out and we find ourselves in the situation where we are now." Then, after a pause: "Why do you so strongly resist a biological explanation, Professor? Their own scientists are happy toconjure up and apply them to us. But from one point of view, it is they whoseexploits-or rather lack of them-need explaining."

These are not even the best examples of Delgado's patronizing tone (wow, how did Radical Rodgrigo get so good at online research, such that he surpasses the Professor? How could he have learned that in Italy? Wow, is Radical Rodrigo racially ambiguous!) , nor his effluvia of highly dramatized personal observations about Radical Rodrigo. The Professor is constantly alarmed, charmed, taken aback by, and amused by his young protege. Oh, and at least he concedes that his Saxon brothers and sisters are capable of producing more than linear derivative thought and warfare. But can you read much more of this?

I was forced to read it in CRT, where I first learned to hate Delgado. I hate the Chronicles, I hate his tendency to over-cite himself, I hate his heavily redacted, simplistic CRT "coursebooks." Much better are books by Derrick Bell, Juan Peres, Kimberle Crenshaw. I just can't say it enough. Delgado sucks. If you ask other current CRT scholars privately, they'll say that they hate his books and dislike the Rodrigo Chronicles too. Problem is, he is one of the "founding fathers" of CRT (although THE Godfather is Derrick Bell), so it's hard to come out and say it. So as a young, brash, aspiring scholar after Delgado's own heart, I'll be brave enough to come out and say it. I'd say it under my own name too, if I thought there was any point to it. It's not that I think Delgado does particularly shoddy scholarship. I just hate his use of narrativity in the Rodrigo chronicles. His "plea for narrativity" I dislike for other reasons (mainly, how to avoid identity politics and extra-legal, personal anecdote in one's legal analysis), but I think it's an argument for inclusion made in good faith, and I won't hate him for that. No, I just hate his patronizing, condescending, elitist, egocentric narrative tone that he seems to employ in everything.

He uses it in his "advice column" for aspiring academics and academics of color at one of my favorite blogs, BlackProf. It's not always bad advice (usually, I agree with the basic conclusion)--I just can't stand the tone in which it is written:

From "Sex in the Stacks:

Javier (fictitious name, real person) writes that he is falling in love with his research assistant, Hermione, a top law student and member of the law review. Javier, who received tenure after a divided vote last year, is afraid that some of his colleagues who voted against him in the tenure decision will come out of the woodwork if he acts on his impulses with the beauteous and smart Hermione, and try to get him, this time for good.
So far, Javier and Hermione have kept their relationship within bounds. But the other evening, after the two of them worked until late in the night in Javier’s office, editing his law review article, Javier drove Hermione home. The moon was full, their hearts beat as one, they exchanged meaningful looks—and Hermone dashed out of the car door mumbling, “Oh, Javier, sweet Javier, what are we to do?”
Javier fears that the next time they are together, they will know what to do, and will do it. She is 25, he 31. Both are single. What are they, indeed, to do?
MOM SAYS that Javier and Hermione must run, not walk, to the faculty manual, which is probably on the university’s website if not gathering dust on Javier’s shelf, and use their highly developed research skills to find out the university’s position on amorous relationships between students and faculty. That position will almost certainly look askance at romantic relationships between professors and students who are currently taking their courses or under their wing as, for example, research assistants.

First of all, do you think "Hermione" would say "Sweet, sweet, Javier" (and how on earth did he pick this name combo?)

From "A Bird in the Hand"

Dear Mom. I have offers from two law schools and must reply by next week. One, from regional school A, would enable me to teach in the city where I currently live. This would greatly please my wife, who is a medical resident at the local university, and two children, both of whom are in school and would hate to move. The other offer is from school B, which is over 600 miles away and would force me into a commuter relationship with my family. School B is higher ranked than school A and has better research support. But if I took the job at school A, I would have more opportunities to write, since I wouldn’t be commuting all the time, and might be able to move to a better school after a few years and a few law review articles.What should I do?
Dear Julian. Mom thinks that you are right to be perplexed. You stand at a genuine crossroad. If you take the offer from school B, your family life may suffer and your children may come to hate you. Your wife may take up with a dashing young surgeon and you will spend cold nights alone in City B, wishing that you had stayed home and tended to first things.
On the other hand, if you accept the offer from school A, you may find yourself weighed down with a high teaching load and the myriad of committee responsibilities that regional schools seem to impose on young scholars. You may have more time to write but find that that time goes to endless busywork and conferences with students who didn’t get it the first time. If your plan to write your way onto a better faculty doesn’t work out, you may spend the rest of your career at School A, pining for the toney shores of School B that you gave up in a rash, youthful decision.

Wow, the choices seem really draconian. Your wife may leave you, and your children may come to hate you. Or, you'll suffer neverending regret and dissatisfaction over a "rash, youthful decision." Sucks to be you!

I can't stand this anymore. I think I need to stop reading Delgado, period for a while. Maybe this is contributing to my frustration with CRT at present, although reviewing all the good CRT authors I've read makes me feel a little nolstalgic for "the way it could be." But the problem in any scholarly movment is that there are the good apples, and there are the overly-fragranced, dyed-red, noxiously sweet and cloying apples. The genetic frankenfood in the bin that seems too fabricated and waxy to be appealing. As much as I support CRT's anti-discrimination project and its theorizing about race, I just can't stand behind conflicting, counter-productive uses of narrativity anymore.

I need to find my own voice, I can't be bothered trying to separate a dozen in one article.


Saturday, March 18, 2006

The Death of Theory, Part II

So, I'm looking over my CV, which it is now technically called since I'm no longer just some law monkey looking for a summer associateship where they pay you to eat lunch. (I'm now a grad student with a few TA'ships and guest lectureships under my belt begging for a free lunch) Um, I haven't published yet, but I'm preparing an article to shop for fall submission deadlines (I missed the spring deadline because of the much hated Bar). The problem is, the article is no longer really a part of my research interests.

But I realize, nothing I've written in the past three years is something I want to keep writing about. Here are a few seminar papers I'm not too excited to try to make publishable (mainly because they're no longer very timely):

  1. From Bakke to Grutter: Diversity as a Compelling Interest (hmm, a few years too late to the debate)
  2. The Myth and the Metonymy of the "Oriental Woman" in Graham Greene's The Quiet Man (uh, my contribution to the field of law and literature)
  3. Different Kinds of Diversity: What is a Compelling Interest? (again, uh, too late to the debate)

So the article I should probably clean up and shop around for publication?

The Struggle to Maintain a Critical Pedagogy: Mediating Issues of Race, Gender and Professorial Authority in the Classroom

It's not as though I'm wavering in my belief that scholarship abouut anti-discrimination law and race-consciuos pedagogy is important and necessary. It's just that I've kind of lost the passion to write about it. This is weird, people. It's making me feel tremendously conflicted and guilty (and many of you know I'm pretty much prone to flights of dramatic introspection, nostalgia, conflict and regret). I remain proud of my Critical Race Studies notation on my diploma and transcript. I remain supportive of Critical Race Theory scholarship and I believe firmly in its project. I'm just not so sure I'm the person to continue this project.

This doesn't mean that I'm no less committed to a project of anti-subordination in my legal research. It's just that, rather than explain how the property value of whiteness has changed over time and how it will change as it becomes ever transmuted to respond to different "others," well, I'll be focusing on federalism as it affects intergovernmental relations, distributive welfare programs, and civil rights. So I won't be totally abandoning the CRT anti-discrimination project. I'll just be focusing that effort in a different way--mainly towards administrative law and public policy. At least for now, that's the direction I want to go. My most immediate project will probably involve the analysis of the current federalism decisions' potential effect on minority rights, particularly in the areas of civil rights and remedies, hate crimes laws, and federal criminal sentencing laws. So while not straight up CRT, that does have a clear anti-discrimination project. But in the future, I want to branch out to study welfare reform law and bankruptcy reform law. I want to become really knowledgeable about administrative law and public policy. I'll always be aware of the race, gender and sexuality discrimination aspects of the law--but I no longer want to focus exclusively on that.

So what am I going to focus less on? Well, the following central premises of CRT:

  1. story telling is a significant part of the law and disenfranchised people have different stories and ways of telling them than enfranchised people(s)
  2. racist behavior is not an aberration, but is normal practice
  3. elites act against racist behavior in society only when it serves them--the Derrick Bell interest-convergence theory
  4. race is a social construct, not biological
  5. characteristics ascribed to a particular race will change (for example, African American people have been called "happy go lucky and childlike" historically in order to rationalize slavery, but are now most commonly called "threatening and criminal" in order to rationalize increased control through police, etc.)
  6. people have intersecting identities, i.e. there is more than one way that they are affected by disenfranchisement or inequality. We all have multiple lenses through which we experience the world (and are experienced by others).

Writing about federalism, intergovernmental relations, and distributive welfare programs does not lend itself to analyzing race as a social construct, the changing of racial constructs, etc. I may get my one last CRT-tinged project writing about hate crimes and federal sentencing laws. But it's still not straight up CRT. In fact, I'm getting away from CRT methodology. In particular, I will probably be employing less narrative in my scholarship--particularly the personal storytelling method, in which the scholar situates him/herself in her project. Patricia Williams, a black scholar, recounted her experience being denied service at Benetton (ironic, I know) to show how everyday racism is still the norm. One of my own professors told his story of being racially profiled by police in his article about race and the 4th Amendment. In my own papers, I've talked about my own racial and gender experiences in the academic setting.

I just don't want to do this anymore. Do I have to explain why? I don't know myself. It just doesn't appeal to me personally anymore. I don't discredit such work, and I read it with interest still. I am not one of those academics that disdain storytelling and narrativity as being faux scholarship. I think it is valid scholarship. I just don't want to do it anymore. I want to get away from narrative and personal storytelling and do some statutory analysis. And this is a betrayal of what I learned.

I feel really guilty. Rejecting narrative and storytelling, one of the central methodologies of CRT--that's a betrayal of my program and my professors. Not continuing their work and continuing the project of theorizing about race, identity, and legal construction of race--that too is a betrayal. In fact, it is the ultimate betrayal. I know what I'll do in the future will be good, important work, but it won't be CRT. It won't be using interpellation to analyze the racial constructs in Plessy. It won't be theorizing about Asian Americans as the perpetual foreign other even as they are called the "model minority" and "honorary whites." It won't be about intersectional gay-Asian identity and the dual pressure to cover and assimilate. It won't be about cultural defenses to crimes and whether they can be analogized to battered woman syndrome as a carving out of the legal defenses based on identity. I really feel like I'm betraying all my old professors. I entered the CRS program as an aspiring academic. My professors probably had hopes that I'd continue this kind of research and keept eh CRS project alive. The CRS program's goal is to create a class of future academics trained in CRT and able to carry on it's project. Either I failed it, or it failed me.

I honestly don't know. For the most part, I enjoyed my CRT classes, but I can't deny that they were incredibly emotionally draining. You can only spend so much time reading about sexism and racism before you feel like someone has beaten the shit out of you. In the end, while I think the program was important to me and the project valuable, I just don't have the energy to continue it. Whatever enthusiasm I had in the project at the beginning of my second year has dissipated somewhat. A part of it is questioning the utility of theory and its relevancy. Another part is that my interests have broadened, and I'm interested in the larger picture of the law--intergovrnmental relations--and not just the minutiae of analyzing a legal opinion, line by line, sussing out the racial implications. I'm not going to deconstruct the law a few lines at a time anymore. For some reason, by the end of third year, I found the work to be personally unsatisfying. I'm fine reading CRT, with its Spivakian analyses of the law--but I can't do it anymore.

And I don't know why. All I know is that by third year, I was more excited about Corporations, First Amendment Law, and Employment Discrimination than I was by my Race Conscious Remedies class. I liked Employment Discrimination not just because of its anti-subordination project, but because it combined so many interesting fields of law--federalism, preemption, administrative law, and remedies. I found myself hungry to study non-traditional anti-discrimination law. I always like to try to understand the racial/gender implications of the law--but right now I like not having to talk about reparations, identity politics, personal racial experiences, and whether or not people will ever think that I'm assimilated. I'm just tired of writing about that.

Maybe this is just fatigue. Maybe this too, shall pass. Maybe one day I'll return to it and start writing about "Race and the Law." Goodness knows that with my background, I'll probably teach it one day. But for now, I'm laying down my pen for it.

I don't know if this makes me less committed to the anti-subordination project. Maybe I'm just tired. Or maybe I'm selling out.