End of the Graduate World as We've Known It

In a provocative Op-ed article in the New York Times, Mark C. Taylor, Chair of the Religion Department at Columbia University, calls for a fundamental rethinking of the place of departments and the preparation of both graduate and undergraduate students. Citing the increasing disconnect between what graduate (and undergraduate) students learn, and the jobs that await them, Taylor calls for restructuring universities around problem centered programs that would be reconsidered regularly.

Abolish permanent departments, even for undergraduate education, and create problem-focused programs. These constantly evolving programs would have sunset clauses, and every seven years each one should be evaluated and either abolished, continued or significantly changed. It is possible to imagine a broad range of topics around which such zones of inquiry could be organized: Mind, Body, Law, Information, Networks, Language, Space, Time, Media, Money, Life and Water.

As the Associate Dean of a program that has focused on the study of law in its social context, for both graduate and undergraduate students for the past thirty years (the program that is, not me!), I would like to offer an endorsement to Taylor's argument.

When Rights Die

Amid the near universal public euphoria we experienced yesterday over Barack Obama's election as President (at least here in Berkeley), a dark sense of dread and despair grew as it became clear that California voters had narrowly approved a constitutional ban on same sex marriage (52% approved). As reported by Jesse McKinley and Laurie Goodstein in the New York Times, similar bans passed in Florida and Arizona.

Much discussion focuses on the intensity of support for the measure among the religiously conservative and on the failures of the opposing campaign. Clearly we are seeing the results of a strategic decision by religious leaders to make anti-homosexuality the new abortion.

The Rev. Joel Hunter, an evangelical pastor in Florida, said many religious conservatives felt more urgency about stopping same-sex marriage than about abortion, another hotly contested issue long locked in a stalemate.

“There is enough of the population that is alarmed at the general breakdown of the family, that has been so inundated with images of homosexual relationships in all of the media,” said Mr. Hunter, who gave the benediction at the Democratic National Convention this year, yet supported the same-sex marriage ban in his state. “It’s almost like it’s obligatory these days to have a homosexual couple in every TV show or every movie.”

Old style religions of all kind, as anthropology long recognized, work by defining the chosen against the perfidy of a distinct other.In some respects gays and lesbians might be hard to demonize because they have been distributed (by God?) among all segments of the population, and are not marked by skin color, language, or political ideology. But the cultural revulsion toward same sex intimacy long reproduced by the popular culture to which Mr. Hunter refers to in the quote above, continues to work in favor of legal bigotry.

In time, I believe, religious leaders like Mr. Hunter, will regret having tied their faith to the rather thin strand that connects biblical morality (however read) to same sex intimacy, especially in the face of a persistent cultural move toward accepting that intimacy. In the meantime we in the progressive community have to call out Mr. Hunter and President Elect Barack Obama about their cultural attachment to bigotry.

As a legal matter, the enactment of Proposition 8 reflects something that is surprisingly rare and very sad, the death of a right. Back in June, when the California Supreme Court held that the state constitution prohibits the government from denying the status of marriage to otherwise qualified same sex couples,they expanded the terrain of legal rights for all in California. To the vast majority of Californians who are heterosexual, that right may seem of little value, but in time, who can say what additional rights would have grown from this new branch of our living constitution. On November 4th, the voters have engaged in what legal theorist Robert Cover called "jurispathic" conduct, or law-killing.

The right response to the death of law, is to plant a thousand new seeds. These may come through the legislature, more court actions, city ordinances, and through acts of spontaneous law creation like Mayor Gavin Newsom launched in San Francisco several years ago when he ordered the clerks of the city hall to grant the licenses to same sex couples.

Which Way from the New Deal?

Both his fans and his critics often see Barack Obama as a political leader who could produce a new New Deal. One of those critics, economics and law professor Paul Rubin, who also serves as an adviser to the McCain campaign puts the negative case strongly in an oped in today's Wall Street Journal.

n 1932, Democrat Franklin Delano Roosevelt was elected president as the nation was heading into a severe recession. The stock market had crashed in 1929, the world's economy was slowing down, and all economic indicators in the U.S. showed signs of trouble.

The new president's response was to restructure the economy with the New Deal -- an expansion of the role of government once unimaginable in America. We now know that FDR's policies likely prolonged the Great Depression because the economy never fully recovered in the 1930s, and actually got worse in the latter half of the decade. And we know that FDR got away with it (winning election four times) by blaming his predecessor, Herbert Hoover, for crashing the economy in the first place.

Obama, who Rubin characterizes as among the most liberal members of the Senate, would, aided by a stronger and more liberal Democratic majority in Congress, would renew the New Deal.

But if the coming wave of new regulation from an Obama administration is harmful to the economy, Mr. Obama will take a page from FDR's playbook. He'll blame Republicans for having caused the market crash in the first place, and so escape blame for the consequences of his policies. It worked for FDR and, so far in this campaign, blaming Republicans and George W. Bush has worked for Mr. Obama.

Democrats draw their political power from trial lawyers, unions, government bureaucrats, environmentalists, and, perhaps, my liberal colleagues in academia. All of these voting blocs seem to favor a larger, more intrusive government. If things proceed as they now appear likely to, we can expect major changes in policies that benefit these groups.

If those of us who favor free markets for the freedom and prosperity they bring are right, the political system may soon put our economy on track for a catastrophe.

Professor Rubin's article, and his academic webpage offer an interesting glimmer into what the legal theory of a McCain administration might look like. In the oped, he blames the New Deal for making the Depression (which he calls a recession) worst, and expresses sympathy for the view that many of its innovations are probably unconstitutional. In his scholarship, Professor Rubin has published papers claiming to show that capital punishment deters homicides and that reducing the generosity of the civil justice system reduces accidents.

As I will explore in subsequent posts, the pro-Obama side in its own way promises a new kind of New Deal that would rely much less on the kinds of agencies and regulations that economists like Professor Rubin have often questioned the efficacy of. The "Renew Deal" (as law professor Orly Lobel cleverly and presciently dubbed it in 2005) will look much different than that served up by FDR (and for which so many may feel nostalgia during the present financial crisis).

Realism Redux?

Legal Realism, the intellectual movement that arose in a few elite law schools at the turn of the 20th century, was often satirized as offering the view that the most important determinants of the outcome of a legal case was not the facts, or the law, but what the judge ate for breakfast (who came up with that particular metaphor anyway?). By the 1960s much of the Realist opposition to the idea that law was a purely objective result of near scientific analysis had become common sense, but few defended a radical view of legal indeterminacy (a slogan taken up by the not very successful Critical Legal Studies movement). Until today?

According to Charlie Savage's reporting in the NYTimes, a recent study by the Justice Department's inspector general found that judges appointed under the now exposed program of choosing Bush loyalists in the recent administration have significantly lower rates of granting appeals by asylum seekers. A study last year titled Refugee Roulette, which examined a huge sample of immigration appeals concluded that "he facts of a case may be less important in determining whether someone is deported than which judge hears the case."

Risking Rescue on K2

It looks like another epic mountaineering tragedy is coming to a close, this time on the fearsome peak of K2 (read the coverage by SALMAN MASOOD and TOM RACHMAN in today's NYTimes). While somewhat shorter than Mt. Everest, the Pakastani peak is considered by professional climbers to require far greater technical skill and to be far more dangerous.

This tragedy, comparable in scale to the 1996 storm on Everest made famous by John Krakauer's book, Into Thin Air was the product of capricious nature and predictable human nature. The human part was the drive of the many teams perched high on the mountain to take advantage of a break in the weather to summit the mountain. The large numbers of climbers produced a jam on the narrow and super steep pathway to the summit (actually known as the "bottleneck"), delaying the ascents so that many climbers were descending in near dark conditions (never a good idea at 26,000 feet).

Nature stepped in with the collapse of part of the ominous serac (an overhanging ice ledge) that hangs over the bottleneck. The ice swept several climbers directly to their deaths, and cut the "fixed lines", ropes put in place by climbing porters during the ascent which are vital to allow exhausted climbers to descend after reach the summit. Trapped on the top of the mountain, with no chance of descending, an unknown number of climbers huddled in weather of minus 40 degrees (F). Some clearly died during the night, a few survivors were helped down the next day by rescue climbers, but others, too injured had to wait for helicopter rescues that are very difficult to pull off. Nature again intervened as a snow storm wrapped the peak creating white-out conditions.

While the idea of risking your life to achieve a summit may seem to be the height of individualistic narcissism, I have long been inspired by the counter-balancing imperative to risk your life in the rescue of others that also characterizes high altitude mountaineering. (See my essay the moral hazards and opportunities of mountaineering, Jonathan Simon, Risking Rescue: High Altitude Rescue as Moral Risk and Moral Opportunity, in RISK AND MORALITY 375 (Richard Ericson & Aaron Doyle eds. University of Toronto Press, 2003)

"Civil" Wars

In a fascinating feature in today's NYTimes, Ethan Bronner succeeds in capturing the incredibly complex interplay of law and war, courts and gun battles, in the three-way civil war we usually abbreviate as the Israel-Palestine conflict.

On the Palestinian side, the intermittent armed violence between Hamas and Fatah factions takes place on top of complex clan alliances.

Any fight here has its origins in earlier violence, so where to begin is problematic. Nonetheless, these particular events began at dawn on Saturday when Hamas forces, which have ruled Gaza for the past year, surrounded the home of the sprawling, well-armed and once powerful Hilles clan, whose chief had been associated with Fatah.

In part, Hamas was looking for the perpetrators of a bombing a week earlier that killed five of its men and a girl, but more broadly it was taking the next step in the consolidation of its power and rule over 1.5 million Palestinians in the coastal Gaza Strip.

On the Israeli side, desire to aid Fatah against Hamas overlays complex legal battles between advocates of greater protection for human rights and advocates of a stronger security state.

So Israel sent about three dozen men back and said the others were on their way. As soon as the men stepped into Gaza, Hamas arrested them. Since human rights groups have recently reported on torture in Gaza, alarms were raised. The Association for Civil Rights in Israel sent an urgent appeal to the Supreme Court demanding that Israel stop returning the men to Gaza.

On Monday morning, the Israeli military announced that it would not send them all to Gaza and that it had persuaded Mr. Abbas to allow many of them into the West Bank. So the civil rights group backed off, replaced by two right-wing activists who petitioned the court to stop the transfer of dangerous men across Israel.

(Our) Joy and (Their) Pain

The banners said it all. While the Lebanese terrorist organization and political party, Hezbollah, was celebrating the return of several prisoners long held by Israel in exchange for the bodies of two Israeli soldiers captured in the summer of 2006, a giant banner proclaimed: "Israel is shedding tears of pain. Lebanon is shedding tears of joy" (quoted in the Chicago Tribune).

This is the logic of terrorists. Conflict is to be resolved by raining terror and pain on your enemies. You experience joy, in their pain. As Philip Bobbitt discusses in his important new book, Terror and Consent: The Wars for the 21st Century, this logic is proclaimed by nations as well as terrorist movements. Indeed, the same logic was expressed by Isreali's as they celebrated the mass bombardment of Beirut in the 2006 war, and by the United States when it celebrated "shock and awe" over Baghdad in the spring of 2003. In both cases, the results have been more cycles of pain.

The choice facing us is not between states and terrorist organization, but between a logic of terror (our joy, their pain) or a logic of mutual recognition and reconciliation. This is the logic that is today represented by global human rights. That movement alone offers a serious alternative to the logic of terrorism.

Criminology and the War on Terror

Scott Shane reports in today's New York Times, that harsh interrogation techniques used by the US at Guantanamo and elsewhere during the war on terror, may have been derived from a 1957 article analyzing Chinese methods of inducing false confessions by US POWs in North Korea.

The link raises troubling questions. Why were techniques considered examples of Communist perfidy adopted by America? Why were methods associated with "false confessions" used in an effort to produce true intelligence?

Less salient but intriguing to your jurisprude is the fact that the author of the original article was Albert Biderman, a sociologist and criminologist whose extensive published work on crime rates, policing techniques, and victimization during the 1960s remains widely known to contemporary scholars of criminology and socio-legal studies. (To read the original 1957 article click here).