... about the malaise in America's inner cities, by Harvard sociologist Orlando Patterson in today's Times. Patterson spreads the blame around, casts current events in historical context, and actually proposes solutions. There is something in here for everybody, and also something that will probably make everyone angry, which suggests to me (who is neither a sociologist nor a historian) that there is is a lot of truth in this piece.
Note also yesterday's editorial in the Times discussing the racist historical roots of Baltimore's current problems. When we first moved to Baltimore, I was struck by how much like a patchwork quilt the city is -- a true city of neighborhoods, cheek-by-jowel with each other, each distinct socioeconomically, architecturally, atmospherically and, often, racially. Baltimore's neighborhoodiness can seem quaint, but the Times editorial gives us the sinister side of the story.
Sunday, May 10, 2015
Wednesday, May 6, 2015
Dave Jaros in The Atlantic on the charges in the Freddie Gray case
My colleague Dave Jaros was the subject of an extensive interview published this morning in The Atlantic online, about the charges filed last Friday against six police officers in the Freddie Gray case. As usual, Dave's take is both accessible and nuanced -- well worth the short read. Dave also shone in an interview last Friday with the CBS Radio affiliate in Boston.
Great work, Dave, you make us proud.
Great work, Dave, you make us proud.
Monday, May 4, 2015
Those long-winded, plainspoken, grumpy Justices
Here's a New York Times article by Adam Liptak describing a new linguistic study of Supreme Court opinions conducted by a law professor and a couple of computer scientists. The study concludes that SCOTUS opinions are becoming (a) longer, (b) more accessible to the public and less legalistic in their language, and (c) grumpier.
Point (a) has been made in other recent studies and seems undeniably true. Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years. Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.
Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way. Here's a brief and very tentative hypothesis about how.
Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form: it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.
As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types. Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life. This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.
And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors. So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues. And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians. Hence the move away from technocracy and formalism in judicial opinions and toward plain language. (Judges, like politicians, want to be understood by and persuasive to the general public.) And hence the grumpiness: once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.
And, hence, the long-windedness. It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts. And it takes even longer still when a Justice has to retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.
Should we regret these trends? In my opinion, no -- not as long as there is a reasonable stopping point. The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct. Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges. To deny that these things play a role is to bury our heads in the sand.
But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official. Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth. They are bound to respond in good faith to the proofs and arguments of the parties before them in court. And they are bound to act impartially as between those litigants. All of these constraints set judges apart from politicians and make law different from mere politics. In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.
Point (a) has been made in other recent studies and seems undeniably true. Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years. Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.
Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way. Here's a brief and very tentative hypothesis about how.
Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form: it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.
As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types. Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life. This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.
And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors. So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues. And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians. Hence the move away from technocracy and formalism in judicial opinions and toward plain language. (Judges, like politicians, want to be understood by and persuasive to the general public.) And hence the grumpiness: once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.
And, hence, the long-windedness. It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts. And it takes even longer still when a Justice has to retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.
Should we regret these trends? In my opinion, no -- not as long as there is a reasonable stopping point. The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct. Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges. To deny that these things play a role is to bury our heads in the sand.
But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official. Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth. They are bound to respond in good faith to the proofs and arguments of the parties before them in court. And they are bound to act impartially as between those litigants. All of these constraints set judges apart from politicians and make law different from mere politics. In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.
It's not (just) a Baltimore problem
After a few weeks that have been eventful in both the usual ways (end-of-semester rush) and some not-so-usual ones (you all know what's been going on in Baltimore), I'm back in the saddle with a few overdue posts, all of which will be mercifully short.
First, on those recent events in Baltimore. An astounding new study described in today's New York Times confirms that Baltimore City is one of the worst places in the country to grow up if you are poor. (Here is the Times's graphic summary of some major points of the study, which you can tailor to your own geographic area; here is a summary by the study's authors; and here is the text of the study.) The study examines data on five million families who moved from one county in the United States to another, concluding that the geographic location where children grow up materially effects their future earning potential. Using these data, the study builds a model of the geographic factors that seem to prevent "intergenerational mobility" (the capacity to increase income as compared to one's parents). Those factors read like a list of the usual suspects: highly concentrated poverty, high income inequality, poor schools, a low percentage of two-parent families, and high crime rates. The higher the degree of these factors in your neighborhood, the worse your chances of doing better than your parents, financially speaking.
The study's authors then rank all of the nation's 2,478 counties according to these negative factors, correlating to variables such as gender and income level. Guess what: my county (Baltimore City, which is in fact a stand-alone county) ranks dead worst among the nation's 100 most populous counties (and in the bottom 1% of all counties) in effects on future income for low-income children. This means that, measured by effects on lifetime income, there is almost no worse place in the country to grow up poor than in Baltimore.
So it's a Baltimore problem, right? Yes, in the sense that the hopelessness of entrenched poverty is particularly bad and particularly evident in Baltimore, as the recent unrest has made painfully but necessarily clear. But it's far from just a Baltimore problem. Baltimore is only the worst example of a problem that plagues most large American cities. Consider the other nine counties that placed among the 10 worst among large counties in the study, listed here from #99 to #91: Mecklenburg, NC (home to Charlotte); Hillsborough, FL (Tampa and St. Petersburg); Orange County, FL (Orlando); Cook County, IL (Chicago); Fresno County, CA; Wayne County, MI (Detroit); Milwaukee County, WI; Bronx County, NY; and Pima County, AZ (Tucson). In each of these mostly urban locales, a poor child can expect to earn between 12% and 17% less over the course of his or her lifetime than the average poor child growing up in America.
The factors that tend to entrench poverty exist in cities from coast to coast. That should concern everybody, not just Americans who live in the worst of these locations. There is the sheer self-interest of wanting to avoid the chaos in our cities that the anger and frustration of entrenched poverty can cause, as we've seen illustrated all too vividly in recent days. But bigger than that is the moral imperative: it is simply unjust to sustain a system in which the future of so many children is dictated primarily by the zip code into which they happen to have been born. America was founded in part on a rejection of what Thomas Jefferson called the "artificial aristocracy founded on wealth and birth" that had dominated Europe since the middle ages. The entrenchment of American poverty is an artificial peonage founded solely on wealth and birth -- an affront to core American ideals.
And peonage and aristocracy almost always travel together (the one in steerage, the other in first class). Growing up in Baltimore, it turns out, isn't a bad thing for everybody. The study also reveals that the children of the wealthiest 1% in the City actually do better over a lifetime than the average American top-one-percenter. While the richest get richer, the poorest grow more and more hopeless. That's not an America any of us should want our kids to grow up in.
First, on those recent events in Baltimore. An astounding new study described in today's New York Times confirms that Baltimore City is one of the worst places in the country to grow up if you are poor. (Here is the Times's graphic summary of some major points of the study, which you can tailor to your own geographic area; here is a summary by the study's authors; and here is the text of the study.) The study examines data on five million families who moved from one county in the United States to another, concluding that the geographic location where children grow up materially effects their future earning potential. Using these data, the study builds a model of the geographic factors that seem to prevent "intergenerational mobility" (the capacity to increase income as compared to one's parents). Those factors read like a list of the usual suspects: highly concentrated poverty, high income inequality, poor schools, a low percentage of two-parent families, and high crime rates. The higher the degree of these factors in your neighborhood, the worse your chances of doing better than your parents, financially speaking.
The study's authors then rank all of the nation's 2,478 counties according to these negative factors, correlating to variables such as gender and income level. Guess what: my county (Baltimore City, which is in fact a stand-alone county) ranks dead worst among the nation's 100 most populous counties (and in the bottom 1% of all counties) in effects on future income for low-income children. This means that, measured by effects on lifetime income, there is almost no worse place in the country to grow up poor than in Baltimore.
So it's a Baltimore problem, right? Yes, in the sense that the hopelessness of entrenched poverty is particularly bad and particularly evident in Baltimore, as the recent unrest has made painfully but necessarily clear. But it's far from just a Baltimore problem. Baltimore is only the worst example of a problem that plagues most large American cities. Consider the other nine counties that placed among the 10 worst among large counties in the study, listed here from #99 to #91: Mecklenburg, NC (home to Charlotte); Hillsborough, FL (Tampa and St. Petersburg); Orange County, FL (Orlando); Cook County, IL (Chicago); Fresno County, CA; Wayne County, MI (Detroit); Milwaukee County, WI; Bronx County, NY; and Pima County, AZ (Tucson). In each of these mostly urban locales, a poor child can expect to earn between 12% and 17% less over the course of his or her lifetime than the average poor child growing up in America.
The factors that tend to entrench poverty exist in cities from coast to coast. That should concern everybody, not just Americans who live in the worst of these locations. There is the sheer self-interest of wanting to avoid the chaos in our cities that the anger and frustration of entrenched poverty can cause, as we've seen illustrated all too vividly in recent days. But bigger than that is the moral imperative: it is simply unjust to sustain a system in which the future of so many children is dictated primarily by the zip code into which they happen to have been born. America was founded in part on a rejection of what Thomas Jefferson called the "artificial aristocracy founded on wealth and birth" that had dominated Europe since the middle ages. The entrenchment of American poverty is an artificial peonage founded solely on wealth and birth -- an affront to core American ideals.
And peonage and aristocracy almost always travel together (the one in steerage, the other in first class). Growing up in Baltimore, it turns out, isn't a bad thing for everybody. The study also reveals that the children of the wealthiest 1% in the City actually do better over a lifetime than the average American top-one-percenter. While the richest get richer, the poorest grow more and more hopeless. That's not an America any of us should want our kids to grow up in.
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