Lincoln's Legacy

Maybe we'd be better off without American heroes, but as far as I know, Abraham Lincoln is as good a choice as any. David Armacost disagrees, and I responded to his character assassination attempt. I guess that pretty much makes me an American hero, too.

Plug - The Core of the Case Against Judicial Review

"The Core of the Case Against Judicial Review" by Jeremy Waldron

The Constitution According to Akhil Amar - Class 6

Fear not: there was no class last week, and we now return to our regularly scheduled programming.

Class 6 (Chapter 6)

Laurence Tribe Invented Flowing?

You can't make this shit up.

Maybe Because You Choked?

Vanity Fair on George Lucas on Indiana Jones and the Kingdom of the Crystal Skull:

Whatever, Lucas is convinced he won't please everyone. "I know the critics are going to hate it," he says. "They already hate it. So there's nothing we can do about that. They hate the idea that we're making another one. They've already made up their minds."

At least the legions of Indy geeks will be pleased, right?

"The fans are all upset," Lucas says. "They're always going to be upset. 'Why did he do it like this? And why didn't he do it like this?' They write their own movie, and then, if you don't do their movie, they get upset about it. So you just have to stand by for the bricks and the custard pies, because they're going to come flying your way."

Idioteque - Trialogue About Climate Change, or Just Disco?

"Idioteque" by Radiohead

Who's in a bunker?
Who's in a bunker?
Women and children first
And the children first
And the children
I'll laugh until my head comes off
I'll swallow till I burst
Until I burst
Until I

Who's in a bunker?
Who's in a bunker?
I have seen too much
I haven't seen enough
You haven't seen it
I'll laugh until my head comes off
Women and children first
And children first
And children

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

Ice age coming
Ice age coming
Let me hear both sides
Let me hear both sides
Let me hear both
Ice age coming
Ice age coming
Throw it on the fire
Throw it on the fire
Throw it on the

We're not scaremongering
This is really happening
Happening
We're not scaremongering
This is really happening
Happening
Mobiles skwrking
Mobiles chirping
Take the money run
Take the money run
Take the money

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

Here I'm allowed
Everything all of the time
Here I'm allowed
Everything all of the time

A Dialogue on Mandatory Abortion

Preface
This potentially ongoing exchange grew out of an earlier post in which I offhandedly defended the horrible-sounding practice of mandatory abortion (in the case of even more horrible, and incurable, diseases and conditions, that is).

Dialogue
Anonymous
I had a question or two about your stance on mandatory abortions. If all babies with a certain disease (for example, Tay-Sachs) are aborted, doesn't that completely destroy the incentive and ability to find a cure for that disease? Forget drug trials for that disease. Also, let's say that there's a 2% chance that the disease will not kill the person whom it afflicts, and a 98% chance that it will result in a terrible horrible death. Is that a high enough probability to require abortion? If so, isn't that probability still lower than what the judicial system should require for imposing non-lethal punishment upon a criminal defendant?

Me
It seems clear that aborting everyone with a given incurable disease would almost certainly prevent a cure. But I don't think it's worth it in certain cases. Many people would suffer and die in the costly search for a cure. On the other hand, many families would have to get abortions. Certainly the latter is a painful process - but not necessarily more painful overall than the search for a cure. I think it depends a lot on the specifics.

I'm not sure about the point of your criminal punishment analogy. In my view, a mandatory abortion requirement would depend on the expected value of a life with a given disease or condition. It would only apply in extreme cases and at the discretion of state-appointed experts who reviewed the findings of the primary ob/gyn doctors (who would be obligated to report certain diseases and conditions that met a some high standard). I'm not sure what, if any, exceptions would apply. I'm inclined to think that ideally there would be none - what could justify creating a life with something along the lines of infantile Tay-Sachs? I'm also realizing that it would be quite difficult to craft a mandatory abortion requirement, aside from the obvious objections of certain groups of people. Anyway, my response to your punishment analogy is that the relative harms of false positives and false negatives are different in the punishment and mandatory abortion contexts. I think it's worse to convict an innocent person than to mandate the abortion of a fetus that wouldn't have led a sufficiently bad life. And I think it's often more harmful to allow the birth of a baby with a sufficiently bad disease or condition than it is to let a guilty person go free. Note also that the mandatory abortion provision would only apply when a test indicates that the fetus has a disease or condition; perhaps the provision should only rely on tests that are virtually flawless. Then the only question is the expected value of life with the disease or condition. Now that I think about it, the implication of my position - which I'm fine with - is mandatory euthanasia for the incompetent in some cases (e.g., infanticide as an alternative to mandatory abortion when no sufficiently reliable prenatal test is available). To me the real problems are practical; this would be some statute to draft.

Anonymous
You're right that people would die painful deaths while humanity searches for a cure. But once a cure is found, then most -- if not all -- of the people with that disease henceforth will be able to lead full and, I assume, relatively painless lives. That condition will last forever, meaning that potentially countless lives will be saved by the cure. I agree that you have to consider the expected value of a life, and that a horrifically painful life will have quite a negative expected value. But if you really want to aggregate expected values here, don't you think that the value added by a cure, multiplied repeatedly for as long as mankind exists and uses that cure, would be quite large, and would probably result in a net positive value? I suppose you can make the argument that you're then subjecting the disease-afflicted children, who are born before a cure is found, to immeasurable suffering for the sake of speculative children in the future. And perhaps you can't add expected values of different people together. I haven't taken the time to think about my intuitions on this, but to me, something feels wrong about simply acquiescing to a disease instead of trying to find a way to cure it. Of course, this assumes that a cure can be discovered at all, let alone in the reasonably near future. In that respect, you're correct that it depends a lot on the specifics.

I'm going to leave alone your response to my criminal punishment analogy. Not only was your response effective, but also all this talk about Tay-Sachs and mandatory abortion....

Me
I take issue with the way in which you're valuing the cure. You implicitly assume that the alternative to the cure is countless afflicted people over time. But mandatory abortion/infanticide would prevent these people from coming into being. Thus the relevant cost (broadly speaking) is the cost of the mandatory procedure, which is certainly significant but pales in comparison to innumerable cases of suffering and death. It may be better to abort a diseased fetus even if a cure is readily available, because the cost of not having a child or of conceiving another child may be lower than the cost of treating the child (especially if treatment is risky or limited). In short, a cure doesn't necessarily have net positive value in the case of diseases that make lives not worth living and can be detected before or at birth.

I can see why one would view abortion as a form of acquiescence, but that's a matter of perspective, not a normative point. Besides, there's no inherent value to "fighting." It may feel better (more noble or whatnot), but does it do the most good?

I also want to note the undesirable implications of treating the values of lives as incommensurable. This may be attractive, but the alternative to measurement, however flawed, is no rational basis for decision-making. Consider environmental goods, such as the existence of bonobos, for example. Some may consider them "priceless," but this is belied by these people's willingness to trade them off for other goods. The real issue is valuation. (Should it be based on willingness to pay? Willingness to accept? Something else? How, if at all, can differential levels of wealth be accounted for?)

Plug - Mother Earth Mother Board

"Mother Earth Mother Board" by Neal Stephenson

The Limits of Litigation

This week's readings in my Culture and Law seminar focus on the shortcomings of law's standardization, ritualization, and creation of disputes. The articles invite us to reflect upon why some people deem legal redress inadequate or even inappropriate, and how the legal system should respond to these concerns.

A natural question is whether civil litigation should be more accessible, and, if so, how this can be accomplished without undermining its goals. Society enshrines litigation as the preeminent method of dispute resolution, but it is only realistically contemplated by a narrow set of people with a narrow set of disputes. Many people find it too daunting, too onerous, and too formal. (For every example of pathological litigiousness, there are surely hundreds of aggrieved individuals who found the barriers to entry to be too high.) But these reactions are, to a large extent, necessary byproducts of litigation's extensive procedural requirements; litigation is a mechanism designed to deal with the most significant bilateral conflicts and as such must go to great lengths to achieve accuracy, fairness, the appearance of propriety, and other values. In short, the rules of litigation must presume that there is a lot at stake. Society's recent response to the inaccessibility of litigation has been to provide an abundance of alternative means of dispute resolution, both inside (e.g., small claims court) and outside (e.g., arbitration) of the judicial system, as opposed to streamlining the process or reducing its costs. This strikes me as the appropriate response. I don't know of any major procedural reforms along the lines of notice pleading that would uncontroversially open the courtroom door to more plaintiffs. (As far as I know, the Federal Rules of Civil Procedure and the like are quite effective and are unhindered by political concerns or undue formalism.) In my view, therefore, significantly improving the accessibility of the civil justice system would require providing litigants with substantial financial assistance (e.g., by capping litigation expenditures or providing court-appointed counsel). I don't see why this would be preferable to the use of cheaper, less involved methods of dispute resolution. Is there anything wrong with full-fledged civil litigation being reserved for cases in which both parties expect to win big? What matters is that people recognize when they have been illegally injured and know that they have a feasible means of redress. This is consistent with William L. F. Felstiner, Richard L. Abel, and Austin Sarat's concern that "the study of the emergence and transformation of disputes may lead to the judgment that too little conflict surfaces in our society, that too few wrongs are perceived, pursued, and remedied."

This leads to the question of what should be done to facilitate the redress of relatively minor legal grievances. How should alternative dispute resolution mechanisms be designed? To what extent should they be promoted? In answering these questions, it's useful to consider what dissuades people from litigation aside from its costs. Austin Sarat's analysis of The Sweet Hereafter illustrates that litigation is an inherently adversarial process, both between and within each side of the "v." Indeed, the very definition of a side, as in a class action, is a process fraught with conflict. Even a team of one lawyer and one client must agree on a single narrative and strategy; as the parties multiply, so do the potential disagreements. A central difficulty is the disparity between the lawyer's and the layperson's conception of dispute resolution. Inexperienced litigants have to come to grips with counterintuitive aspects of litigation that lawyers take for granted, such as formality (e.g., rules of evidence), artificiality (e.g., witness coaching), and extensiveness (e.g., discovery). Ideally one's lawyer should counsel her about unrealistic expectations, but some lawyers are more concerned about retaining clients, and some clients are obsessed with vindication. Regarding the relationship between the opposing sides, Sarat makes it clear that civil litigation, like its criminal counterpart, entails one party blaming the other. I'm sure that even in cases of strict liability, many people view the defendant as having done something immoral. After all, it's always in a party's interests to demonize its opponent and glorify itself if it can get away with it. Understandably, many people don't want to partake in such a process, especially, as in The Sweet Hereafter, when the alleged wrongdoer is remote and any amount of damages would be fundamentally inadequate. Under such circumstances, all that a trial would do for some victims' families is keep their wounds open. This brief discussion suggests some dimensions along which it may be important to distinguish alternative dispute resolution proceedings from litigation. Such proceedings should generally be less formal, less ritualized, more open to individuals' natural narratives, and more flexible about assigning fault and remedies. In sum, what works for litigants often does not work for aggrieved parties who are turned off or intimidated by litigation's ceremony, stiffness, combativeness, and structure.

Overall, it's important to investigate what causes people to have a lack of faith in litigation. We can then ask whether the aspects of litigation that are to blame are worth it, and whether they should be maintained in alternative proceedings intended to resolve different types of disputes among different types of disputants.

The (In)Famous Vietnam War Professor Case

Preface
By my junior year this debate case was more stale than a dead horse stuffed with old chestnuts. But that didn't stop me from running it against increasingly inexperienced opponents. In the wise words of Vin the Retard, "A win's a win."

While I am almost entirely responsible for the case's overuse, you can blame James McDonnell and Seth Yohalem for coming up with the idea, which is based on a discussion in Tuesdays with Morrie, which I have yet to read. I have no respect for my elders.

The case was only called tight (it's not!) on two occasions, unsuccessfully of course. I ran it opp-choice once; they picked the wrong side.

Can you beat it?

The Case
We're taking you back in time to the Vietnam War and putting you in the position of a liberal college professor who is opposed to the war. The government has instituted a military draft, but college students are legally exempt from it. Some professors have decided to give their students all A's in order to prevent them from failing out and to protest the war. We think this is a bad form of protest. We propose that you give your students the grades they academically deserve.

I. Your Academic Obligations

• As a professor, academic integrity and effective education matter a lot to you, even if they're not your paramount concerns.
  

A. Fairness

• Grades are only meaningful if they indicate academic merit. Rewarding success and failure equally undermines the grading system and has harmful consequences. Keep in mind that institutions will treat your grades as legitimate. Your students – some of whom don't even deserve a diploma – will have an unfair advantage over others in the grad school and job markets. They will take positions that others deserve and are presumably more qualified for.

B. Student Incentives

• Grades motivate students to study and work; without them, you're simply less able to educate.

C. Class Quality

• Bad students will be attracted to your classes to get free A's (either after you announce your policy or after the word gets out). This harms the entire class' educational experience (class size, quality of discussion, etc.).

II. The Social Consequences of Giving All A's

• Even if your grading policy only directly affects a few dozen students, it has important moral implications.

A. Unjust Discrimination

• No lives are saved on either side; there's a draft either way. The issue is whether your students should be saved at the expense of those who will be drafted in their place.

• On a basic moral level, college students don't deserve a second chance out of the draft when they haven't earned it. Student draft deferment is a privilege, not a birthright; students' lives shouldn't be given intrinsic preference over the lives of others. You shouldn't effectively use others as human shields for failing students who don’t deserve to be in college.

• Moreover, colleges now are largely socially and racially discriminatory. The people who will be sent to war in your students' place are more likely to be poor minorities who never even had a chance of getting into college. As a liberal, you should be particularly opposed to perpetuating such discrimination.

B. The Anti-War Cause

• One of the points of a random draft is for society to more equally bear the cost of war. But when college students are kept out of the war no matter what, their generally privileged parents won't have as much of an incentive to protest. People with clout won't be as fired up when the sons of the disadvantaged are dying for them, so policymakers can more easily justify a prolonged war. Don't perpetuate the war by further shielding elites from its reality.

• You need to appeal to the masses in order to change social consciousness. If you abandon your academic integrity and preach to the leftist choir, the bulk of society will write you off as an extremist. You should use your credibility as an academic to write to Congress, speak out, and join larger demonstrations. Don't become just another campus radical. Don't become fodder for the Right.

He Must Have Tenure

A friend observes: "This is not necessarily the endorsement one would like: 'Mike DuHaime, a Republican consultant who managed Rudolph W. Giuliani’s campaign, said Mrs. Clinton was making the right decisions in trying to make the most of her strengths.' I love how he's still in the punditocracy."

The wheels on the Clinton bus come off, off, off. Off, off, off. Off, off, off.

Plug - Akhil and Vikram Amar on the Electoral College

"History, Slavery, Sexism, the South, and the Electoral College" (part 1)

"A Critique of the Top Ten Modern Arguments for the Electoral College" (part 2)

"How to Achieve Direct National Election of the President Without Amending the Constitution" (part 3)

The Constitution According to Akhil Amar - Class 5

Class 5 (Chapter 5)

Sample quote: "Hamilton was a total boy genius. So it wasn't entirely an insult to Hilary Clinton when I compared her to him."

The Side Effects of Ritual

Oscar Chase thoroughly and concisely spells out the ways in which ritual, particularly in the American trial, helps legitimize dispute resolution processes and reinforce social values. I'd like to build upon his discussion by considering a few other ways in which legal ritual can both serve and disserve a society.

To begin with, meaningful legal practices are sometimes rendered ritualistic by repetition, in that they become divorced from the ideas they are supposed to represent and take on hollow lives of their own. As far as I know, this has become true to some extent of Miranda warnings; their ubiquity seems to have swallowed their meaning. I recall a friend of mine mentioning that he read that arrestees in other countries sometimes demand, on the basis of American TV shows, that police officers read them their Miranda rights. Leaving aside what this says about the perception of American law among certain foreigners, it's obvious that these arrestees haven't really thought about the purpose or content of the Miranda ritual. One can't help but be amused at the implicit suggestion that police officers are granting suspects certain rights by speaking them into being. And one can't help but be troubled at the prospect that the understanding of the average American arrestee, recidivists excluded, is not much more accurate or sophisticated. After all, how many suspects "waive" their rights to silence and counsel by acting on their natural impulses to deny or explain their behavior? More to the point, how many could explain more or less what Miranda entitles them to after suddenly hearing the list of rights formulaically recited by an antagonist in a stressful situation? I know I was confused when I first heard a policeman (on TV) forcefully declare "You have the right to remain silent!" to an uncooperative suspect; curiously, it sounded like a command, and I wondered whether suspects would be inclined to talk back to the assertion of authority. My purpose is not to criticize the Miranda decision but rather to observe that ritually induced ordinariness, in leading people to take practices for granted, can lead them to misconstrue, or fail to construe, them. Sometimes this unconsciousness is essential to the power of a practice, as in the various devices for elevating and depersonalizing the American judge, but sometimes it undermines a practice's purpose. In such cases the difficulty is avoiding ritualization and the mere formalisms that it begets.

Similarly, consider how ritual can mask the full significance of a practice or at least divert attention from it. Sally Falk Moore provides an excellent example of this in her analysis of the broader social function of Chagga disputing and dispute resolution. She observes that the common practice of instigating and "settling" a series disputes stemming from one underlying incident creates, or rather entrenches, social "losers," who are eventually forced to relinquish their land, a very scarce resource in Chagga society. These losers tend to be individuals who were already in disadvantaged positions in the Chagga social structure and were thus prone to being cheated, manipulated, or simply dissatisfied. Naturally, such people are more disposed to envy, ill-will, and illegal activity, which further degrades their status and credibility. This makes them ideal targets for accusations and conflicts culminating in ostracism and land-grabbing. Of course, the Catch-22 of the Chagga underclass is not a recognized phenomenon. Moore writes: "It is important...to recognize that the long-term significance is not at issue when a hearing is under way. From the point of view of the elders, what they are doing is instance-by-stance settlement." Thus the ritual confinement of Chagga dispute resolution to the matter at hand serves to ensure that harsh realities remain unspoken and perhaps unseen. Furthermore, the practice of morally blaming the loser assuages the conscience of the prevailing party in these typically internecine conflicts. Surely there are those who are aware of these inequities, but they cannot give institutional voice to their concerns. The upshot is that reform is impeded. It is worth exploring the parallels, however general, between the deficiencies of the Chagga system and those of our official dispute resolution mechanisms. For example, fairly strict rules of evidence – particularly those designed to protect litigants from the shortcomings of juries – provide that many considerations are off-limits in court despite being de facto relevant and, if known, inevitably taken into account. The "case or controversy" requirement, along with other judicial canons, narrows, sometimes artificially, the scope of decisions and can make a constitutional question the elephant in the courtroom. As Chase argues, concerns along these lines are partially behind the modern rise of alternative dispute resolution in the U.S.

Lastly, I'll note that ritual can distance people from the law, particularly those who are already socially removed from the elites who generally shape and practice the law. For instance, the rhetoric and conventions of appellate argument and decision-making surely engender more confusion than reverence among many observers, litigants themselves not excepted. This is not to suggest that it's worth sacrificing sophistication for accessibility, just that there's a nontrivial trade-off. An esoteric and formal legal system makes many people feel as if the rule of law, a hallmark of democracy, is rule from on high – from a different world, in a different language, and with a different way of seeing things. There's something to Chase’s observation that "[u]nlike the Roman Catholic Church the American courts have yet to abandon Latin in their regular public discourse."

The Value of "Going Meta"

This week's highly theoretical readings in my Culture and Law seminar impressed upon me the practical benefits of consciously attempting to scrutinize our social institutions from an outsider's perspective. Needless to say, the Western academic tradition has facilitated a great deal of good by enabling and encouraging honest inquiry within our culture and practices. If anything, as frequent charges of relativism attest to, the problem is that there are too many acceptable answers; some sectors of academia seem dogmatic in their repudiation of dogmatism, seeing their enemy everywhere but within. But it's far better for a society to err on the side of generating too much criticism. The same goes for theory: at worst critical distance results in opacity or incoherence; at best – despite disavowing a reformist agenda – it engenders reforms that would not otherwise have been embraced or even contemplated. At least, this seems like a strong possibility to me. (Perhaps most Western legal and ethical paradigm shifts are really primarily the result of something else, such as the correction of factual mistakes – e.g., unlike Descartes we know that animals feel pain – or changes in material circumstances – e.g., the women's suffrage movement in the U.S. caught on when women became instrumental to the World War I effort.) I will discuss two ways in which an external examination of our legal culture can lead us both to better understand, and to better, ourselves and our society.

First, taking the perspective of a cultural outsider can enable us to discern the values that our institutions and practices are actually serving. Often we overemphasize the symbolic meaning of traditions that retain significant functional force. In turn, our unreflectiveness enables these traditions to have greater sway over us. For instance, I suspect that most people, legal professionals included, take for granted the pervasive ritualization of judicial practice. They may simply accept or dismiss most instances of it as historical holdovers, mere evidence of law's fundamental inertia – or stodginess. After all, doesn't a Latin maxim say the same thing as its English translation? Aren't judges' robes just a formality, like wearing a suit? The problem with such presumptions, of course, is that they only tell part of the story. In order to fully understand the purpose of our rituals, it helps to make an effort to view them through an a-cultural lens. The idea is to dispel their ordinariness by analogizing them to practices that are alien to us, as Oscar Chase does by treating the American fact-finding process as oracular. This makes it easier for us to subject our evidentiary system to the same analysis as, say, the benge oracle. In doing so we can discover counterintuitive parallels between the procedures and appreciate the cultural contingency of the distinctions – however real – between them. For example, I suspect that most laypeople believe that the overriding purpose of the adversarial jury trial is to get at the truth, given the primacy of rationality and empiricism in our secular culture. This is not to say that the average person isn't at least somewhat cynical about whether trials live up to this ideal; the point is that people are conditioned to emphasize this dimension of the trial and judge it exclusively on these terms. Because people are inclined to have faith in their traditional, celebrated institutions, we probably overstate the accuracy of jury trials and underappreciate the fact that they serve other important values. Accordingly, most proposals for trial reform probably suffer from a myopic failure to explicitly weigh increased accuracy against the potential disservice to other, less apparent goals. (At college debate tournaments, one of the proposals that I liked to argue for was that the American justice system would be better off if jurors were trained, professional civil servants instead of random citizens. Most of my opponents also rested their case on truth-seeking; the only "cultural" argument that they commonly made is that jury duty is educational.) Cultural analysis facilitates the consideration of these other goals; I was struck by Chase's example that "the introduction of the jury in a society in transition from totalitarianism would be profoundly expressive of a new era of popular participation in government. It would symbolize the relocation of authority and could even change the way individuals conceptualize their relationship to authority." In short, the cultural study of law seems to me to be a step beyond legal realism. Legal realism reveals that judicial adherence to precedent is often illusory; cultural analysis explains why this is so.

Second, we can ask whether, and to what extent, the principles implicit in our legal culture are worth upholding. Consider David Kertzer's claim: "Successful ritual...creates an emotional state that makes the message uncontestable because it is framed in such a way as to be seen as inherent in the way things are...beyond debate." Similarly, Chase argues that even judicial dissents reaffirm the oracular status of law because, like majority opinions, they claim to speak with the true voice of the law, as opposed to that of their author; they claim that the majority failed to divine the real meaning of the law in question. Paul Kahn also explores this theme: "[The] myth of recovery operates in every overruling of a precedent: without a conceptual space for novelty, every new act must be made to seem a recovery....To interpret the law is to make explicit what has been there all along." Reformers have criticized these conventions as rendering law too arcane, artificial, and abusable. Cultural analysis sharpens such critiques by highlighting the underlying purpose of these conventions, which is to legitimize the law in the eyes of its primary audience: the people, not the practitioners. We can then question whether this purpose is being served. One source of doubt is that people seem to increasingly feel as if the esoteric and formalized (and resource-intensive) nature of legal practice is a barrier to redress, not a basis for reverence. As Jerome Bruner suggests, legal proceedings that sanitize and stylize people's stories in order to assuredly fit them into legal categories alienate people who want to have their voices heard; appellate courts' dry and laconic recitations of facts are an obvious example. Thus Bruner maintains that the practice of pleading civil complaints in narrative form "remains Everyman's portal into the arcane realm of law," a bastion of "the common sense of justice." Along the same lines, Chase argues: “Doubt about the accuracy and hence the validity of modern dispute resolution oracles helps explain the rise of alternative dispute-resolution techniques, particularly mediation, that promote agreement as preferable to judgment." Maybe the short version of the story is that modern media have exposed more people to legal proceedings, people haven't liked what they've seen (gamesmanship, "technicalities," formalism, "wrong" outcomes, veiled politics), and they've lost faith in the oracle; they no longer want to subject themselves to it. This is in line with Kahn's speculation that "it is quite possible that the rule of law is already a dying practice." Cultural analysis, despite being a purely descriptive enterprise, can help us save it.

The Constitution According to Akhil Amar - Class 4

Class 4 (Chapter 4)

Hope

"While the people retain their virtue, and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government, in the short space of four years." - from Abraham Lincoln's First Inaugural Address

Virtue and vigilance.

Vote Obama.

Laws and Sausages

"Think of the Constitution the way you might think of a machine designed to make sausages. We want a sausage-making machine to provide us with food, but we also want to ensure that the sausages the machine produces are wholesome and untainted by disease. Because we do not want to have to inspect each and every sausage to see if it is wholesome, we want a machine whose design gives us confidence that it produces good sausages." - from Randy E. Barnett, "The Relevance of the Framers' Intent"

Selective Abortion

Preface
This post is largely culled from an old email I wrote. (Now it can be ignored by the public.) Please regard any deficiencies in reasoning as youthful indiscretions - but don't hesitate to crucify me for them.

Body
I once faced the following debate case: There's an average American family with one young kid. The wife is pregnant, and the couple is certain that the baby will be seriously autistic. Should they abort?

I unhesitatingly picked yes. I maintain that position, but it got me thinking about how the decision to carry a fetus to term should be regulated. To begin with, it's clear to me that abortion should be mandatory in some cases. For instance, one shouldn't be allowed knowingly to have a kid with infantile Tay-Sachs. People often seem to lose sight of the fact that child-bearing is far from a self-regarding action. I also think it's unquestionable that abortion should be discretionary otherwise. To me, the interesting, and intertwined, issues are (1) what information parents should be allowed to have access to in making the decision to abort (information is the engine of discretion); and (2) how robust the mandatory provision should be (should it encompass AIDS? Deafness? Dwarfism?).

My initial inclination was that parents should be able to learn whatever they want about the fetus. I suppose I had three reasons for favoring fully-informed discretion. First, because the parents will presumably raise the child, it's better for both them and the child if the child doesn't possess traits that the parents find objectionable. Second, it's best for parents to be able to deal with cases at the cusp of the mandatory provision. Because it's so severe to require an abortion, the mandatory provision should err on the side of leniency; doctors should be required to satisfy stringent criteria, subject, of course, to state review. Consequently, the provision won't apply to fetuses that almost all pro-choice parents think should be aborted (e.g., deaf ones); these parents should be able to step in. Finally, given that it's impossible to bar access to all fetal information, there are reasons for favoring equal access. This isn't an argument about a black market in fetal trait screening (not that it wouldn't exist). What I mean is that parents inevitably have some idea of how likely a fetus is to possess a trait, depending on the nature of the trait (e.g., two genetically deaf parents have a good idea of the likelihood that their offspring will be deaf, whereas fat parents have a slimmer notion of how fat a given child will be inclined to be). Why allow the vicissitudes of genetics to determine the extent to which parents can select for or against certain traits?

Now I'll attempt to argue against my intuitive stance. In response to my first reason above, consider that the harms of parental expectations would be exacerbated if parents could engage in selection, however crude, of children's traits. For an extreme example, parents who abort whenever the child would be insufficiently athletic (assuming this could be screened for) might put even more pressure on their kids to be good at sports. Another plausible concern, for what it's worth, is that kids with particularly bad traits might resent their parents for not aborting them. Turning to the second point - the heart of the debate - maybe it's simply bad if parents can be selective. Maybe the world is better off with "healthy" numbers of short, socially awkward, and depressive people (especially if these traits are correlated with beneficial ones, such as hyperintelligence and being Woody Allen). One may retort that children shouldn't be born worse off for the good of society, but the implicit parallel to punishing innocent people doesn't necessarily hold. Children who would have been aborted had their parents been aware of their impairments aren't being made worse off, and their lives have some value. The point is that personal utility is largely relative. Sure, some conditions, such as chronic pain, are just bad (and are largely addressed by the aforementioned mandatory provision). But other conditions are only bad if one acquires them, not if she's born with them (e.g., being of slightly below average intelligence, or even, arguably, deafness). In light of this distinction, the issue can be framed as whether it's acceptable for parents to be able to shift and/or compress traits' bell curves via selective abortion. Shifts are often pointless because of relativity (e.g., if everyone were an inch taller, the only benefits would be minor and incidental, and may be offset). Of course, this point is harder to defend when it comes to traits for which meaningful absolute gains are possible (e.g., suppose everyone were smarter). Regarding compression, imagine a world in which almost all men are between 5'11" and 6'3", or in which almost everyone's IQ is between 110 and 130 (apparently a fair amount of people believe in the pop psychology notion that too much intelligence necessarily precludes healthy social development). Compressing the range of a trait can be sterilizing and risky. We can be bereft of meaningful diversity - and its often unforeseeable benefits. Perhaps this would be the primary consequence of widespread, fully-informed selective abortion.

Almost

"It's almost a given that other players will rank lower when Tiger gets first place...." - Slate

The Astronomy of Joanna Newsom

In "Emily," Ys 1 (2006), Joanna Newsom writes: "[T]he meteorite is the source of the light, and the meteor’s just what we see; and the meteoroid is a stone that’s devoid of the fire that propelled it to thee. And the meteorite’s just what causes the light, and the meteor’s how it’s perceived; and the meteoroid’s a bone thrown from the void, that lies quiet in offering to thee."

Poetic, yes. But is it true? The American Astronomical Society has yet to issue a statement. Naturally, I abhor a vacuum; allow me to fill this void.

According to the venerable Dictionary.com, "meteorite" has two definitions, the first of which is understandably paramount, the second of which may be a common-law-esque ratification of enduring misuse: (1) "a mass of stone or metal that has reached the earth from outer space; a fallen meteoroid;" (2) "a meteoroid." A "meteoroid" is "any of the small bodies, often remnants of comets, traveling through space: when such a body enters the earth's atmosphere it is heated to luminosity and becomes a meteor." Accordingly, a "meteor" is: (1) "a meteoroid that has entered the earth's atmosphere;" (2) "a transient fiery streak in the sky produced by a meteoroid passing through the earth's atmosphere; a shooting star or bolide."

This does not bode well for Ms. Newsom, even within her conceptual universe. Of these three terms, the best candidate for "the source of," or "just what causes," "the light" is "meteoroid." A meteoroid is the only non-contingent entity - a good property for something that's a source and a cause. This usage is rendered decisive by an analysis of the other two terms. A fallen meteorite (pardon the redundancy) is the only thing that could accurately be described as a "stone" or a "bone" that, having completed its atmospheric journey, has lost its heat and luminescence. And Newsom is quite correct, albeit vague, in referring to a meteor as "just what we see," or "perceive[]."

What to make of this? On the one hand, we could view Newsom's cosmic confusion as evidence of what she herself has proclaimed: "[T]here is nothing would help me come to grips with a sky that is gaping and yawning." But this is unsatisfactory, in light of her inquisitiveness, her meticulousness, and the presence of her astrophysicist sister, Emily, who provided backing vocals on the eponymous track. The better, or at least more appealing, interpretation is that she was being endearingly ironic. After all, before launching into her first quasi-chorus about the meteoric distinctions, she reminisces to Emily: "You taught me the names of the stars overhead, that I wrote down in my ledger. Though all I knew of the rote universe were those Pleiades, loosed in December, I promised you I’d set them to verse, so I’d always remember..."

...that the meteorite is no longer in flight, but the meteor is flying free; and the meteoroid is in orbit devoid of occasion for reaching thee. And the meteorite is a stone without light, but the meteor's how it was seen - when the meteoroid was thrown from the void and fell burning in offering to thee.

I prefer Newsom's cosmos.