PrawfsBlawg

Book Club on "The Myth of the Rational Market"

Welcome to the Book Club on "The Myth of the Rational Market: A History of Risk, Reward, and Delusion on Wall Street," by Justin Fox.  We'll be starting with contributions from Benjamin Means, Lynn Stout, David Zaring, and myself, with reactions from Justin Fox to follow.  We hope you'll particpate in the comments.

BlueTips

The Bluebook is such an unwieldy document, its editors have now created BlueTips, a web feature that allows the Bluebook editors to disseminate "authoritative guidance to reasonable questions on subjects covered by The Bluebook."

That's weird, isn't it? Because one would think the whole point of The Bluebook is to provide "authoritative guidance" on the subjects it covers, especially being as how it describes itself as "systematic," "definitive," and "a uniform system."

Take a look at this BlueTip:

Under rule 18.2.2(b)(i), main page titles are abbreviated in accordance with table T13. Where a main page title is better characterized as an institutional author, however, abbreviate in accordance with rule 15.1(d).

I mean really, someone needs to stop these people.

Academic Satire Recommendations

It is possible that you are at that point in the semester, or in your career, when you are in need of academic satire in literary form.  Although many would recommend Lucky Jim by Kingsley Amis, it has scenes of gratuitous cruelty in the beginning chapters that I can never get past. [I feel the same way about certain episodes of Seinfeld involving George or most episodes of Curb Your Enthusiasm.] It does contain a brilliant description of a hangover, though. Some would recommend Jane Smiley's Moo, which has a brilliant opening chapter but doesn't follow through.  Instead, I prefer David Lodge's Changing Places, which has a brilliant scene about a "rising star" English professor whose tenure prospects are scuttled when he admits during a drinking game at a faculty party that he's never read Hamlet.  I also love Richard Russo's hilarious Straight Man, which captures the inanity of (certain) faculty meetings perfectly.   

Internet Freedom

Here is a review of Evgeny Morozov's The Net Delusion and Tim Wu's The Master Switch  from the New York Review of Books that makes me want to run out and buy the latter immediately.

Weiler in the Dock

As some of you know from reading Leiter's blog, NYU Law prof, Joe Weiler, has been accused in France of a criminal defamation charge because he refused to take down a negative book review that appeared in the journal that he edits (the EJIL). Weiler had nice things to say about the trial's fairness but one hopes nonetheless that he is being indemnified by all the parties (that's all of us) who would benefit from a ruling in his favor, soon may it arrive. The judges are supposed to issue a verdict in a fortnight. In the meantime, you might want to check out Adam Liptak's very interesting Sidebar column in today's NYT about the trial and Weiler's seemingly mellow mood about this all.   Adam, you might recall, has done some freelancing for NYU Law in the past, so it's not entirely surprising that he would take interest in the injustice to Weiler. And I'm glad he did. The alleged victim's amazon webpage hasn't exactly benefited from the attention Liptak has focused on it.

Perhaps somewhat oddly, I owe the appearance of my first scholarly publication to Prof. Weiler, who, before he set off to NYU from HLS, cheerfully encouraged me as a 1L to write a review essay of a book on ethics and authority in international law.  I just discovered that the link I had to that essay on my website is dead, and, that may all be for the better. Nonethless, I find it sad that more than technology is frustrating the European Journal of Int'l Law and its editors these days. We all owe Prof. Weiler a substantial debt of gratitude for his principled stand regarding the fate of academic book reviewing. Thanks for hangin' tough, Joe. (And a h/t to Al Brophy, for spotlighting the Sidebar for me today.)

Tiger Mother Book Club

I was delighted to be one of the participants in Conglomerate blog's book club on Battle Hymn of the Tiger Mother.  My contribution is here.

Book Club on the Battle Hymn of the Tiger Mother

Our friends at the Conglomerate blog are having a book club today about Amy Chua's defense of tough love. You've read Rob Howse's penetrating review of it here. Head over to the Glom to see what a gaggle of other wonderful folks (including our own Lyrissa Lidsky, my co-author Jennifer Collins, and visiting prawf Shima's sister Mehrsa Baradaran)  think about the challenges of prawfing while parenting. As a parent of two mini-boys, I can say that this book club merits the highest praise I could offer: I wish Prawfs had thought of this too...happy Monday.

The New Habeas Revisionism: Shameless Plug (and Overdue Thanks)

In the Friday afternoon shameless self-promotion department, my essay reviewing Paul Halliday's Habeas Corpus: From England to Empire is finally out, in the February 2011 issue of the Harvard Law Review.  Because HLR's (silly!) policy wouldn't allow me to say the following in my author footnote, let me take this opportunity to express my heartfelt thanks to Zach Schauf, Jaime Eagan, and David Caldwell, who made this about as productive and enjoyable an editing experience as I've ever experienced--and whose substantive contributions to the final product cannot be overstated.

Stanford Law Review as Ebook: Kindle, Nook and iPad

My friend and co-blogger Alan Childress's venture, Quid Pro Books, has helped the Stanford Law Review become the first general law review to publish in an ebook version.  Volume 63, Issue 1 is now available for Kindle, Nook, and in the Apple iTunes store.  See more details at Legal Profession Blog.

Quid Pro Books also re-releases out of print classics in print and ebook formats.  I was delighted to connect Alan with Susan Neiman, who republished her account of Berlin in the years before the fall of the Wall, Slow Fire: Jewish Notes from Berlin. 

For more information, follow the above link to Quid Pro's website.

Lived (and Dated) History

I've been waiting patiently for the rotations to rotate; I should have posted this on January 20, 2011, the fiftieth anniversary of John F. Kennedy's inauguration.  For some random reason about a month ago, I pulled Theodore H. White's Pulitzer Prize winning The Making of the President 1960 off the bookshelf and have been leafing through it.  The 1960 Presidential campaign is one of my earliest memories of the world beyond the immediate surroundings of a pre-schooler (I was six and would have been watching it all on the black and white Muntz television while sitting on the Naugahyde couch in our living room).  (I have been trying to translate this into how it would sound to me if told to me by my parents; the equivalent would have been my father describing to me a memory of that tumultuous election battle between FDR and Alf Landon in 1936.)

Aside from historical datedness like the amazing Democratic coalition of northern liberals and southern racists, or the fact that it was the liberal wing causing headaches for Republican Party regulars, I was struck by tidbits of mundane datedness as I read the first chapter.  It is Election Day in 1960.  Kennedy has voted in the West End branch of the Boston Public Library, then been driven through the "grimy blight of Scollay Square"--now the Government Center T stop and the plaza in front of City Hall--to an airplane that takes him to Hyannisport, where:

- The Democratic National Committee was insolvent and only had $800 to set up a press center at the Hyannis National Guard Armory; most of the materials to outfit it came from local donations - the local lumber company and Ford dealer.  A local carpenter volunteered to build the partitions and platforms.

-  There are no women except for wives and girls who operate the mimeograph machines.  At 11:30 p.m., Jacqueline, in her ninth month of pregnancy "was sent up to bed."

- "Upstairs Lou Harris worked his slide rule...."

- At midnight, the candidate is wearing "white shirt, tan twill trousers, green necktie, white wool socks" [???!!!]

For a comparative backward-looking view, and one that imports the modern merging of media, entertainment, and politics, see this Vanity Fair retrospective on the Hollywood aspect of the Kennedy inauguruation published last month.  Again, I was struck by the mundanities:  on January 18, Kennedy had breakfast at the Carlyle in Manhattan, then boarded a commercial flight from LaGuardia to D.C.!

The Jean-Jacques of New Haven: Amy Chua’s Battle Hymn of the Tiger Mother

In the middle of the 18^th century, a cranky Swiss intellectual published a manual for child-rearing that became the talk of Europe.   As the childless bachelor Immanuel Kant figured out, Rousseau’s Emile was not really a parenting guide at all-it was a complex and subtle work of political and social theory.  Rousseau wanted to reach a more popular audience and have a wider influence than earlier political thinkers; to present the teaching of the Social Contract in the form of a self-help book for nannies and moms was a stroke of genius.   

If you bought Amy Chua’s Battle Hymn of the Tiger Mother to help solve your own parenting challenges with her Chinese mothering recipe, consider Rousseau’s apparent response to a reader who used Emile to raise his own kids:  “so much the worse for you, and so much the worse for them.”

Amy Chua is not a child psychologist or social worker but a Yale Law professor and the author of one of the best books about globalization, World on Fire.    A suitable antidote to Francis Fukuyama’s ‘End of History’ triumphalism, World on Fire documents how rapidly-introduced capitalism and commerce can exacerbate social, cultural and political tensions in developing and transitional countries.    Chua’s analysis is driven by a fine appreciation of the interaction of politics, economics and culture; something rare among law professors and largely non-existent at the time among economists (exceptions: Dani Rodrik and Joe Stiglitz). 

World on Fire is reminiscent of Jean-Jacques Rousseau’s early counter-current writings about the corruption, decadence, alienation and social divisiveness wrought by modern commerce and modern morals.  Read carefully, Rousseau wasn’t really preaching a return to traditional, closed societies; but rather a correction and extension of modernity based upon the integration and synthesis of modern values and practices with older traditions re-interpreted in light of new pathologies.  Along similar lines, in World on Fire, Chua doesn’t  advocate the reversal of globalization, much less a return to command or corporatist economics in transitional countries, but instead sensitivity to social and cultural particulars.   World on Fire gives some useful clues to understanding the deeper truth in Chua’s new book.

The obvious and well-worn message of the Battle Hymn of the Tiger Mother is “spare the rod, spoil the child.”  The novelty is that the message isn’t coming from the obvious sources, not from a neo-con or a Tea Partier or the Christian Right, but from a sophisticated well-turned out Ivy League academic.  And Chua plays the China Card.  The educated classes in America are fascinated by the rise of China, and Asia in general.  Strict child-rearing is not an Asian monopoly; but presenting it that way makes it a lot more palatable (or at least interesting) to today’s Sinophile elites.     But the more subtle and significant theme of Battle Hymn of the Tiger Mother is one that is worthy of serious reflection:  the clash of cultures makes America stronger rather than weaker.   We shouldn’t be afraid of it or suppress it. 

Chua's point is that through immigration America has been renewed and revitalized as the values of older cultures have confronted American freedom and openness.  Immigrants and the children of immigrants should be proud not ashamed of the traditions in which they were raised, even if those traditions clash with the predominant atmosphere of permissiveness and choice in America-and even while they themselves take advantage of the opportunities that the new world has to offer. 

At the same time, Chua offers a lesson that will most certainly be lost on those who are charmed by the book’s more sensationalist claims on behalf of “Chinese” discipline.  Chua displays how a failure to compromise with and even embrace elements of Western permissiveness and choice can put the traditional family at risk, threatening that which one most wants to preserve.  The story of her coming to terms with the resistance and rebellion of one of her two daughters is as important and perhaps more important than Chua’s pitch for strictness.  In a (massive) concession to liberalism’s concern with individuality, Chua admits that traditional discipline just won’t work with some children, including members of her own family.      

Many of the most touching-and funny- scenes in Battle Hymn of the Tiger Mother make it clear that the Chua home is far from a household modeled on simple despotism.  There are endless debates about the value and justification of Chinese mothering; Chua, husband and children alike argue like law professors.    The Chua version of Chinese mothering embraces freedom of speech.   

  Like the great Rousseau, Chua sometimes argues tendentiously.  As with Rousseau’s praise for ‘noble savages” and virtuous Swiss villagers, Chua’s ode to the Chinese mother can descend into crude cultural stereotyping, junk social science or both (as with Rousseau, one needs to notice the subtle self-parody and self-doubt that accompany the posturing).   Chua implies that all successful Chinese or Chinese-American children are the product of strict traditional parenting, which refuses to spoil the child.  Growing up in Toronto, one of the great sites of the Chinese diaspora, the Chinese-Canadian kids I knew, especially in law school, were indeed very successful.  Contrary to Chua’s formula, they were often spoiled beyond my wildest adolescent dreams.  European sports cars, designer clothes, a frenetic social and dating life apparently weren’t at odds with academic and professional achievement. 

Chua can be as complex and paradoxical as Rousseau.  At the very center of her book is an admiring recollection of her mother-in-law, a fervent believer in the American way of independence, freedom and spontaneity.   That was the way that her husband Jed was raised, the fellow Yale Law professor husband and secular Jew that she adores:  namely, in almost total opposition to the “tiger mother” philosophy.     But the paradox contains a vital truth.  One of the very untraditional teachings of Battle Hymn of the Tiger Mother is the richness and possibility of cross-cultural families.  In the home, disagreement and conflict-but also respect and mutual adjustment-between cultures and between generations provide the best education for a strong multicultural America.    

How the Constitution Can Make Our Military Stronger

I would like to recommend a book by my colleague Diane Mazur at the University of Florida Levin College of Law that could not be more timely.  The book is called A More Perfect Military:  How the Constitution Can Make Our Military Stronger.  Here are the links to the book, with descriptions, advance praise, and so forth.    

Emily Sack on Privilege or Punish

The following comments are from Emily Sack, who teaches at Roger Williams:

The authors of Privilege or Punish have made an extremely valuable contribution to the discussion of the family’s treatment in criminal law.  In particular, the framework they have developed for analyzing the value of specific family ties benefits or burdens is very helpful in moving the conversation forward.  However, in my view, the framework, at least for family ties burdens, is not complete and seems to declare off-limits some of the most critical considerations for evaluating the value of a criminal law that involves family status. I want to explore this problem by using the topic of domestic violence’s treatment in the criminal law.

 First, I have to note the short shrift the authors give to domestic violence, by which I mean adult intimate partner violence, as opposed to other types of family violence, such as child abuse.  The authors discuss the topic only briefly in the book’s Coda.    Their general lack of focus on this topic is surprising, given that it may be the quintessential criminal law based on family status.  They attempt to explain their failure to address the issue more comprehensively by arguing that because many current domestic violence statutes include a broader definition of relationship than just those between family members, these laws are not relevant to their concern of family ties and criminal justice.  But this is to define the problem out of existence. While domestic violence of course does include other adult intimate relationships beyond family, a major part of domestic violence occurs in relationships where the perpetrator and victim are spouses.  To pretend otherwise only avoids the real issues in addressing how domestic violence should be treated under the authors’ rubric.

It is helpful to give some brief background on the historical treatment of domestic violence in the criminal law, and outline how it would fare under the Privilege or Punish framework. It is obvious that historically domestic violence enjoyed what might be called the “ultimate” family ties benefit (defined in the book as a state policy that treats defendants better because of their family status).  Under the law of coverture, a husband’s use of physical force to “correct” the behavior of his wife was approved for centuries. Because a wife had no legal identity upon marriage, her husband could be held responsible both criminally and civilly for most of her actions.  As a consequence of his responsibility for her, a husband then was entitled to discipline his wife.  Even after the formal laws of coverture were revoked, domestic violence continued to be condoned by the criminal justice system, and treated as a “family” matter.  Therefore, until the 1980s, there were no specific criminal laws against domestic violence, and facially neutral criminal laws such as assault routinely were not enforced when the victim and perpetrator were married.

Under each of the concerns raised by the family ties benefits test constructed in the book, it is clear that the historical treatment of domestic violence fails miserably, and I think we would all agree that domestic violence offenders’ enjoyment of a family ties benefit cannot be justified.  The authors ask several questions of each family ties benefit examined in the book: Does the benefit perpetuate patriarchy or create gender bias? Does it create inaccuracies in the criminal justice system? Does it create inequality in the criminal law? Does it incentivize crime? For the family ties benefit created by the historical treatment of domestic violence, the answer to all of these questions would be yes. This treatment, which immunized husbands from prosecution, and permitted them to use physical force against victims with impunity, clearly raises all of the concerns that the authors have identified. 

But how would we characterize the current treatment of domestic violence?  Does it continue to be a family ties benefit, or is it a burden (defined by the authors as a state policy which imposed an extra burden on defendants because of their family status)? And if it is a burden, is that burden justified? These are more complicated questions.

As the authors point out, there is vastly different treatment of domestic violence in the criminal law across the states. Some jurisdictions continue to treat domestic violence assaults less seriously than stranger assaults – i.e., as a family ties benefit.  Perhaps the most obvious example of a formal family ties benefit in the domestic violence context is marital rape. In many states, rape by a spouse or intimate partner continues to be a less serious crime, or to require elements of proof that do not exist for stranger rape.  As was true with the historical treatment of domestic violence, there is little justification for awarding a family ties benefit to domestic violence perpetrators under any of the criteria outlined by the authors. 

In some jurisdictions, though formal laws may not provide family ties benefits to domestic violence perpetrators, in reality they receive such benefits from facially neutral laws that are not neutrally enforced.  The authors state that they are not addressing the impact, particularly the gendered impact, of facially neutral crimes in the book.  Fair enough, but in failing to do so, they often omit the central motivation and impact of criminal laws.  For example, there are obviously, facially neutral laws that punish assaults and threats.  But if these laws are not enforced against perpetrators who are spouses or intimate partners of their victims, there is a strong bias effect.  And while females can be perpetrators of intimate partner violence, multiple studies continue to demonstrate that in approximately 85% of domestic violence cases, the perpetrator is male and the victim is female. Therefore, failure to enforce neutral laws is both biased against all intimate partner victims generally, and female victims of crime specifically.

There are also domestic violence laws that may appear to be family ties burdens, but in fact are actually neutral.  Many domestic violence mandatory arrest laws fall into such a category.  Though the law may appear to be singling out domestic violence defendants for special or harsher treatment through mandatory arrest, in reality these laws are intended to rectify past failures, and to disrupt the norm of non-arrest in domestic violence cases.  These mandatory arrest laws therefore attempt to put domestic violence on an even playing field with other types of crime -- to negate the longstanding family ties benefit that domestic violence perpetrators enjoyed.  Criminal law cannot be evaluated without understanding the context of its past, in both formal law and in its enforcement.

And sometimes, domestic violence does appear in the formal law as a family ties burden. The issue then is to evaluate whether such a burden is justified.  I want to explore this by taking one particularly controversial example. Federal law bars weapons possession by anyone convicted of a felony, but there is no analogous provision for those convicted of misdemeanors generally.  However, 18 U.S.C. § 922 (g)(9), which was enacted in 1996 and is commonly known as the Lautenberg Amendment, makes it unlawful to possess a firearm if the individual has been convicted in any court of a “misdemeanor crime of domestic violence.”   This law has been subject to a number of challenges which are not relevant to my discussion here, but it has been upheld as constitutional.  It clearly imposes a burden on domestic violence offenders. The next question is whether or not this family ties burden is justified.

Applying the authors’ test for family ties burdens is helpful in answering this question, but it only gets you so far.  The authors first ask if the relationship involved is voluntary, so that to punish is consistent with liberal views of autonomy. Yes, intimate partner relationships are voluntary in the sense meant by the authors. Is there a liberty interest for the defendant at stake here that society is prepared to recognize? This could be answered either yes or no.  No, because there is no liberty interest we want to recognize in permitting a defendant to possess weapons after committing a crime of violence against a partner. The only liberty interest that can be invoked is the old “family privacy” one – that we should let couples work out their problems without state interference. This historical justification for the tolerance of domestic violence has long ago been jettisoned, at least officially, in our criminal justice policy.  But the authors’ question also could be answered in the affirmative. There is a liberty interest that society is prepared to recognize here – the constitutionally protected right to bear arms.

The authors’ third question also can be answered either yes or no: Does the government have an important objective in creating this law and is the law narrowly tailored to achieving that objective, or are there alternative equally effective methods for doing so?  Yes, the government has the critical goal of deterring and punishing violent crime and of reducing the private and public effects of injury to victims. As with other firearms regulations, this one attempts to reduce the potential harm of a high-risk population. And while there may be other civil means of deterring domestic violence perpetrators and assisting victims, that may be true of any violent crime; only criminal law achieves the retributive effect of punishment. But of course this question could also be answered in the negative. Banning firearms possession does not directly address domestic violence crimes. It is too attenuated and overbroad to be necessary or even effective.  In their final question, the authors ask if the family ties burden contributes to concerns about gender, inequality and discrimination. This too could be answered either yes or no. If the relationship definition is broad enough, this question could be answered no. But it could also be answered yes. Since most domestic violence perpetrators are male, this law disproportionately impacts men.

The point is that the decision as to whether the family ties burden created by this federal law is justified is not clear under the questions posed by the authors.  It must be acknowledged that the authors do note that when one harms a family member, as opposed to a stranger, one may deserve greater punishment because in addition to the basic harm, there is a breach of trust. This may be a justification for treating domestic violence differently than other crimes involving the same level of violence, and weigh on the side of permitting the burden. But the ultimate result remains unclear under the authors’ framework, because there are critical elements missing from their analysis.

What is left out from consideration is the context of this federal gun law, which includes the historical treatment of domestic violence in the criminal law, the current treatment of domestic violence in criminal law generally, the specific charging policies and conviction results for domestic violence crime, and the empirical data regarding guns and domestic violence fatalities. When all of these issues are examined, I think it becomes clear that the family ties burden imposed by the Lautenberg Amendment is justified.

As I’ve already discussed, historically domestic violence was not treated as a crime.  The federal weapons ban for those convicted of domestic violence misdemeanors serves a critical communicative and deterrent function of the criminal law, by focusing on a specific type of crime that for centuries failed to receive state attention. This was in fact one of the primary goals of the Violence Against Women Act and other federal criminal laws concerning domestic violence.  And, if it is true that domestic violence criminal law continues to be under-enforced, then again, isn’t it justifiable to focus on this type of crime to educate the public and to provide greater deterrence?

The specific context of this statute is also important. One of the primary reasons that the law focused on domestic violence misdemeanors was the finding by the Senate that domestic violence crimes were routinely under-charged.  Crimes of violence that would be treated as felonies if the perpetrator and victim were strangers were most frequently handled as misdemeanors – both in charging and plea policies -- if the parties were intimate partners.  Therefore, with only a felony prohibition on weapons, offenders convicted of domestic violence misdemeanors could escape the weapons ban, though they were often guilty of the same level of violence and presented the same level of risk.  Finally, the empirical data demonstrates the close link between fatalities in domestic violence cases and gun possession. One analysis of female domestic homicides demonstrated that the presence of one or more guns in the home made a woman 7.2 times more likely to be the victim of such a homicide. Moreover, women are far more likely to be killed by their spouse, intimate acquaintance or a family member than a stranger.  All of these issues lead to a much stronger case for enacting the gun law which imposes a burden on domestic violence offenders, but all of these considerations are omitted from the book’s framework.

Finally, there is another critical way in which the framework used in the book does not permit a full opportunity to analyze the meaning of domestic violence crime.  Unlike most of the other crimes which create family ties burdens and which are discussed in the book, in domestic violence crime, the relationship between the perpetrator and victim is not just a factor that makes an otherwise non-criminal action criminal. Nor is it simply an “add on” to an already criminal act.  In domestic violence, a central part of the act is not simply the assault or the physical harm caused, but the power and control that the perpetrator exerts over the victim because of the domestic violence relationship. As scholars such as Deborah Tuerkheimer have explained, domestic violence is best understood as a course of conduct and it is the repeated use of psychological and physical force over the history of and intimate relationship that creates the terror, fear and damage done to the victim. In this sense, domestic violence is a different crime, not just the same as a stranger crime with a family ties burden attached.  Therefore, it may be inaccurate to frame the issue as whether it is justified to treat domestic violence crime more seriously is not really accurate, because it is not the same crime as a similar physical act against a stranger.

The authors have begun an important conversation in this book. But no study of criminal justice and family ties can be complete without a fuller exploration of domestic violence and its treatment in criminal law. I think the authors do themselves a disservice not to attempt to deal with this issue, which could only enrich their project. I think that if and when they do so, it will open up a broader and more complex framework for evaluating family ties burdens generally – one which more directly addresses the historical context, the current law enforcement realities, and the multiple functions of the criminal law.   

 

Privilege or Punish Book Club (SEALS version): Elizabeth MacDowell (UNLV)

I’m delighted to continue this discussion about Dan Markel, Jennifer M. Collins, and Ethan J. Leib’s important and provocative book, Privilege or Punish? Criminal Justice and the Challenge of Family Ties, with some of my co-panelists from the SEALS Workshop on Criminal Law and the Family. Markel, Collins, and Leib make a unique contribution in terms of inquiry and method in their examination, using legal analysis and political theory, of formal criminal laws that treat defendants differently based on family status. Both the scope of the project and the method of its execution are painstakingly defined by the authors. But the principles of exclusion are especially tricky on a project like this one, at least at the margins, creating one of the book’s greatest points of challenge.

One area where the boundaries are unclear is domestic violence, which the authors have excluded from their primary inquiry due to the fact (they explain in the book and subsequent forums) that most jurisdictions no longer limit applicability of domestic violence laws based on family status alone, and treatment of the crime is uneven in terms of whether defendants are subject to criminal law burdens or benefits. A second grey area (not by any means unique to this project) is the appropriate scope of the normative inquiry. The authors analyze the laws at issue with reference to criminal law functions and external normative principles. But given the distance between the law on the books and the law in action, where does one draw the line?

While I don’t necessarily question the decision to exclude domestic violence from the statutes examined that facially differentiate based on family status, post-adjudication diversion programs used in domestic violence cases nonetheless provide an illustration of the ways in which benefits and burdens cannot necessarily be determined with reference to the formal law alone. In Privilege of Punish, the authors use such programs as an example of treating domestic violence more leniently than similar crimes between strangers. Diversion programs can indeed benefit defendants, by allowing those who complete the program successfully to avoid a criminal record and enhanced penalties if there is subsequent domestic violence offense. However, this isn’t the whole story. Diversion also creates significant due process burdens for defendants.

As Prof. Tamara Meekins has written about post-adjudication diversion programs more generally, a criminal defendant makes the decision whether or not to enter diversion early on in the case, before his or her attorney is fully informed about the case and without full knowledge of the results of failing to successfully complete the program. The defendant may also be under coercive pressure to accept diversion, especially if in jail and unable to make bail. Moreover, diversion is often offered in the context of “problem solving courts” that alter the adversarial process in ways that thwart effective assistance of counsel in making this and other crucial decisions (e.g., by implementing a “team approach”). In this light, diversion can hardly be considered a benefit to criminal defendants charged with domestic violence. (Check out Prof. Meekins’ illuminating article, Specialized Justice: The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm.)

Of course, coercion may be present in other plea bargaining scenarios and in other types of cases as well. But the impact on domestic violence cases may be particularly significant. To the extent such policies add gravitas to defendants’ perceptions of mistreatment in the criminal justice system, research on the relationship between procedural justice and recidivism suggests they may increase rather than decrease crime. More generally, high rates of plea bargains in domestic violence cases may facilitate crime by undermining the victim’s confidence in the system. To the complaining victim, plea bargains of all types can look like the defendant is getting off easy. If, as a result, victims are less likely to report future crimes or cooperate with authorities in a future case, these policies indirectly may increase crime in this way as well. Such practices may also increase the potential for inaccuracy in the form of false convictions (including of victims of domestic violence) by focusing on obtaining plea agreements rather than correctly identifying perpetrators and holding them accountable.

In these ways, burdens created by diversion programs may undermine criminal justice functions with respect to domestic violence in ways that run counter to general principles. As Markel et al observe, criminal law burdens generally don’t implicate normative concerns about incentivizing more crime. But such generalizations do not apply with regard to burdens imposed in domestic violence cases as a result of due process failures, an inquiry that is doubly outside the scope of Privilege or Punish.

I am not the only one to push at the boundaries of the inquiry the authors have established and executed so well. (For example, see Prof. Emily Sack’s post in today’s PrawfsBlawg, Prof. Alafair Burke’s review essay, When Family Matters, available here, and review essays by Prof. Douglas Berman and Jack Chin, available here.) However, unlike some other responses, my purpose is not to argue that additional laws implicating families or normative criteria for their evaluation should rightly have been included. Instead, as someone deeply sympathetic to the enterprise of policy argument based on normative principles as well as empiricism, I am very interested to hear the authors’ views on the basis, in normative projects like this one, for drawing the line with regard to what factors will be considered from the larger socio-legal landscape within which law is enacted.

 

"Privilege or Punish": A Prawfs/SEALS Book Club

It is my pleasure to introduce a book club on "Privilege or Punish: Criminal Justice and the Challenge of Family Ties."  The participants are following up on their discussion of criminal justice and the family at this year's SEALS conference.  Joining us will be:

• Meredith Harbach, University of Richmond School of Law
• Elizabeth MacDowell, University of Nevada, Las Vegas, William S. Boyd School of Law
• Emily Sack, Roger Williams University School of Law
• and co-authors  Dan Markel (FSU), Jennifer M. Collins (WFU); and Ethan J. Leib (UC-Hastings) 

We thank the participants for following up on their great discussion at SEALS.  And we look forward to your comments.

Who Plays Atticus Finch?

This Sunday marks the 50th anniversary of publication of To Kill a Mockingbird, the book that sent many a person to law school. NPR's Talk of the Nation today interviewed Mary McDonagh Murphy, author of a new documentary book on Mockingbird titled Scout, Atticus, and Boo: A Celebration of 50 Years of To Kill a Mockingbird.

I present to you all a question that came up in the discussion: If they were going to remake the movie of Mockingbird, who should play Atticus Finch?

The Fair Report Privilege in NJ: "Misappropriate" = "Steal"?

In Salzano v. North Jersey Media Group, 2010 WL 1849852 (May 11, 2010), the New Jersey Supreme Court addressed important issues regarding the scope and application of its fair report privilege.  First, the court held that defendants may receive the benefit of the privilege when repeating allegedly defamatory allegations taken from “initial pleadings,” such as a filed complaint in a civil case.  Second, the court held, albeit by an equally divided vote, that defendants’ reporting regarding a civil complaint filed in bankruptcy court was fair and accurate even though it described the complaint as alleging that the plaintiff had “stolen” funds from a bankrupt corporation when the complaint actually stated that the plaintiff had misappropriated funds.   The split on the second issue reflects a division amongst the judges on whether the dictionary definition of “misappropriate,” or its arguably less pejorative “street” definition, is the relevant benchmark for judging its rough equivalence with “steal.”

For those not familiar with the fair report privilege, some background is in order.  The fair report privilege provides vital protection against defamation suits for journalists reporting on government affairs.  The fair report privilege stems from common law or sometimes from statute, and it protects journalists or others who repeat “defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern.” Restatement (Second) of Torts Sec. 611.  However, the privilege is only available if “the report [of the official action or proceeding or meeting] is accurate and complete or a fair abridgement of the occurrence that is recounted.”  Id.      

Three rationales underpin the fair report privilege.   The narrowest rationale for the fair report privilege is the “agency” rationale.  Since any member of the public has a right to attend a public meeting or obtain access to “open” government documents, the press is privileged to repeat accurately information from these sources because it is acting as an “agent” for the public in doing so.  A second rationale is the “public supervision” rationale, which recognizes the checking function of the press in scrutinizing government conduct and providing the public information about what their government officials are doing.  A closely related but potentially broader rationale is the “public information” rationale, which posits that the press should not be held liable for informing the public about matters of public interest, because such information is essential to intelligent voting and the formation of enlightened public opinion. 

The scope of the privileges varies from jurisdiction to jurisdiction, depending in part on which rationale is applied.  For example, some jurisdictions permit a defendant to invoke the privilege when the defendant reports information obtained from a “leaked” government document, but some deny the privilege because the defendant cannot claim to be acting as an agent in reporting on a document to which the public had no access.  Likewise, some jurisdictions permit a defendant to invoke the privilege even if there is no attribution to the government source; some don’t, because the public cannot evaluate government performance if they do not know the source of the information.

In Salzano, the New Jersey Supreme Court concluded that all three rationales—agency, public information, and public supervision—supported application of the privilege to fair and accurate reports of initial pleadings in a civil case.  In New Jersey, civil complaints are “public documents to which the citizens . . . have free access.”  The court concluded, therefore, that the media must be protected when they act as surrogates for the public in reporting “on every aspect of the administration of justice,” including the filing of a complaint.  In reaching this conclusion, the court rejected the argument that extension of the privilege to reports on filed complaints would promote the filing of frivolous lawsuits designed solely to put defamatory falsehoods into circulation.  If such abuses occur, the court said, they can be remedied with sanctions on attorneys and parties as well as suits for malicious prosecution or malicious use of process.  The court expressed faith that citizens have a “sophisticated understanding of the court system and [are] capable of evaluating information gleaned from a complaint;” therefore, pleadings do not need to be “sanitized” or “filtered through a veracity lens” before publication.  Clearly one can question both the court’s faith in the sophistication of the citizenry and the efficacy of remedies against the filing of complaints filled with defamatory falsehoods.  Moreover, one can certainly question whether extending the privilege to cover filed pleadings upon which a government official has not yet acted furthers public scrutiny of the administration of justice.  Regardless, the extension of the fair report privilege to “initial pleadings” provides an important shield against defamation liability for anyone reporting on the court system and the Salzano decision places New Jersey in the modern trend toward giving the privilege broad scope. 

Equally important is the leeway the New Jersey Supreme Court gave the media defendants in evaluating the fairness and accuracy of their reports on the complaint filed by the bankruptcy trustee.  The complaint stated that plaintiff “unlawfully diverted, converted and misappropriated [the bankrupt corporation’s] funds” by using two checks from the corporation to purchase his residence and by using the corporation’s credit card for over $200,000 in personal expenses.  The defendants published a story about the allegations in the complaint under the headline “Man accused of stealing $ 500,000 for high living” and asserted in the body of the story that the bankruptcy trustee’s complaint accused plaintiff of stealing.  In evaluating whether the published stories involved “full, fair and accurate account of the official proceeding,” the court focused on whether the defamatory “sting” of the defendants’ reports was “essentially the same as that of the complaint.”  With regard to the language regarding plaintiff’s “stealing” of funds, the court noted that the headline had to be read in the context of the whole article, which clearly indicated that the allegations of the complaint had not yet been adjudicated.  The court then looked to the dictionary definitions of “misappropriation” and “steal” to reach the conclusion that “it is clear that the fair and natural meaning of the word ‘steal’ given by reasonable person of ordinary intelligence is ‘misappropriate.’”

What is fascinating about this conclusion is that the justices on the New Jersey Supreme Court were equally divided on the question whether an allegation in a civil case that the “white-collar” plaintiff “misappropriated” funds had as much of a defamatory “sting” as an allegation that he stole them.    Justice Hoen’s concurring and dissenting opinion notes that the word “steal” “has the same meaning as misappropriate, but much stronger negative connotations.”  According to Justice Hoen, the word “steal” “carries with it the clear connotation of a crime, together with its attendant evil-minded mens rea. None of that is faithful to the actual allegations made in the Bankruptcy Court by the Trustee.”   Although the divide among the justice about the denotation and connotation of “misappropriate” seems purely semantic, the opinions in Salzano provide an interesting prism into contemporary attitudes about the culpability of white-collar “misappropriation” (in a civil case) as opposed to the simple “street crime” of theft.

Some Critics Weigh In on Privilege or Punish (Version 2: Yale LJ)

As alluded to almost a year ago, the April 2010 issue of the Yale Law Journal (website) now has links to two very interesting review essays of Privilege or Punish: Criminal Justice and the Challenge of Family Ties, my book with Jennifer M. Collins and Ethan. The first essay is by Prof. Alafair Burke (Hofstra) and it is titled, When Family Matters. Go ahead and throw Alafair a few downloads over here on SSRN. The second review essay, by Professors Alice Ristroph (Seton Hall) and Melissa Murray (Berkeley), is called Disestablishing the Family. You can download that piece over here on SSRN.  

Initially these reviews were supposed to appear with our reply essay in the same issue of YLJ under the "Features" rubric, but b/c of some innocent snafu, our response to these two rich and provocative pieces will actually appear a bit later this spring--I believe in the June issue. For those of you keen to see it beforehand (hi sis!), we've just posted a penultimate draft of that piece on SSRN, and it is entitled Rethinking Criminal Law and Family Status. I hope to blog a bit more about the substance of this exchange over the coming weeks. In brief, though, Part I of our Essay defends our "equal protection" model for analyzing family status against the "j'accuse" of statism made by R-M. Part II plays offense against R-M's proposed model to disestablish the family, and Part III engages Prof. Burke's critiques about the book's argument and scope. Needless to say, we are grateful to YLJ for hosting this exchange and to Alice, Alafair, and Melissa for the effort and verve with which they've engaged our work.

P.S. As mentioned before, you can find another robust exchange of ideas about the arguments in our book in this symposium in the New Criminal Law Review (featuring criminal and/or family law gurus Doug Berman, Naomi Cahn and Jack Chin).

Identity Economics and Status Anxiety

Every now and again you read a book that makes you see the world differently.  A few weeks back, I read Akerlof and Kranton’s Identity Economics, and it had that effect on me.  In this book, the authors reject the assumption of traditional economics that tastes and preferences are independent characteristics unrelated to social context.  Instead, they argue that social categories, behavior norms, and a person’s sense of belonging interact to create what they call “identity utility” (or disutility). 

 

For example, a simple welfarist account of a worker’s motivations goes something like this:  We work in exchange for wages, and the more we get paid, the harder we’ll work.  What Identity Economics adds is the insight that this simple utility function is affected also by the extent to which you see your job as fulfilling to their sense of identity.  If you’re a “company man”—someone who sees their job as an extension of the self—you’ll likely work much harder than a basic wage/effort calculus would predict.  By contrast, if you see your job as soul-sucking and inconsistent with your identity, you’ll likely work only hard enough not to get fired (and may even engage in sabotage to stick it to your hated employer).

 

This very brief summary can’t do justice to the argument of the book, but it at least sets up a question I was left with after reading Identity Economics.  I think it’s true that social categories, behavior norms, and our sense of identity impact the utility function in underappreciated ways, but this doesn’t explain why this happens.  I think the answer to this question lies in the idea of status (and a related idea, Status Anxiety, the title of another book I loved, by Alain de Botton), and I explain this point more (and suggest that the link to status shows how law fits into the picture) below the fold.

To take another quick example from Identity Economics, men tend to experience identity disutility when they do what has been traditionally regarded as “women’s work” (e.g., nursing), while women tend to experience identity disutility when they do what has been traditionally regarded as “men’s work” (e.g., construction, mining).  Much of this comes from outside the workplace.  Constantly being met with skepticism about your choice of work is irritating, and this is costly to the worker. 

 

But much of this identity disutility comes from within the workplace as well.   Co-workers are often hugely resistant to gender integration, and take this out on co-workers from the non-traditional genders (Identity Economics has some harrowing stories about how this is true even relatively recently at a Bay Area law firm).  Why would workers see gender integration as threatening to their identities?  Why not, instead, see it merely as a welcome change that will increase the pool of talented applicants? 

 

The answer to this question, I think, lies at the nexus of identity and status anxiety.  Identity tells us who we are by fitting us into relevant social categories, but it is also a tool for making us feel good about ourselves to the extent that a given identity places us in the upper echelons of a given status hierarchy.  (And here I owe a hat tip to de Botton and his book, Status Anxiety, which is a great exposition of the dominant role status—and worry about status—plays in our understanding of our place in the world.)  Gender integration in the workplace may well be perceived as making someone who traditionally thought of himself as belonging to a privileged category (male) no longer feel so distinctive—the marker of his identity is being demoted to a relatively lower status, because his job is no longer a special province for members of his gender.

 

If this sounds like a somewhat familiar idea, I think it is.  Gary Becker introduced the idea of a “taste” for discrimination some years ago in an attempt to explain the prevalence of discrimination even when such behavior seems patently irrational.  Identity economics and status anxiety help to explain why some (favored) people may have such a taste for discrimination within caste systems.  Such systems depend on everyone having their identity anchored to a given salient category (race, class, etc.), and for those favored by the given hierarchy, keeping others down enhances their own status and brings them identity utility by maintaining the privileged status of the group to which they belong. (It should go without saying that this is pretty obviously morally objectionable behavior, so to be 100% clear, I'm seeking here only to explain, not to justify.)

 

Finally, introducing status (and status anxiety) into the equation shows how law fits into the picture.  Since I apparently can’t write three posts without talking about Order Without Law (which I happen to be re-reading at present, in case that wasn’t painfully obvious), here goes again.  Ellickson poses this puzzle:  why do traditionalist ranchers in Shasta County resist closed-range ordinances when it still leaves those ranchers with plenty of land to graze on?  The ranchers explain their resistance in terms of concern for higher insurance premiums and liability to motorists, but neither of these are actually affected by range closure.  Instead, Ellickson shows that what is really objectionable to these ranchers is that they think of the open range as part of their identity and way of life, so that a law closing part of the range is a huge symbolic state-sanctioned slap in the face—an indication by the state that it dismisses the importance of the open range—even if the closures don’t exact any more tangible or traditional costs.

 

There are lots of other examples.  Property rights advocates cheered state legislatures’ Kelo-driven restrictions on eminent domain, even when those laws were effectively toothless; and interest groups spend lobby heavily (and expensively) for state recognition or public monuments that will not bring them any monetary value.  Identity economics and status anxiety explain why, at least to an extent.  We (or at least most of us) want the state to prioritize the social categories to which we anchor our identities, because government-sanctioned approval of those categories gives us a uniquely strong infusion of identity utility, instilling a sense of status superiority over other groups.

Final Thoughts on "Ordering the City"

Many thanks to all who contributed to our book club for Nicole Stelle Garnett's "Ordering the City" for an extremely thoughtful and rewarding discussion.  If you missed any of the posts, here's a recap:

• Ben Barros, Complexity and the City
• Tracey Meares, Meares on "Ordering the City"
• Chris Serkin, Ordering the City
• Lee Fennell, Ordering the City
• Stephen Clowney, Order and the Poor
• Michelle Wilde Anderson, Ordering the City 
• Nicole Stelle Garnett, Ordering the City, Redux
• Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II

If you want to chime in, feel free to join in the comments.  And thanks again to our terrific contributors.

The Purposes of Planning (the Good Kind): Ordering the City Part II

Compliments to the club for wonderful ideas, and to Nicole for a thoughtful response. I have two final notes to add. 

On the issue of whether it’s wise to introduce commercial establishments into residential areas, I think it’s important to reground the discussion in the range of things, beyond curbing disorder, that planners do and should think about. There’s sales and property tax revenue, of course, not to mention encouraging small businesses, reducing vehicle miles traveled, creating community, and even encouraging the public to exercise by going places on their sidewalks. Jane Jacobs was quite aware of many of these issues, and I think we should be too before we give up our intuitive attachment to her theory in the face of evidence that commerce may not make some residential areas safer. In addition to the other valuable caveats offered in the book and the posts (in particular, that context matters) these additional factors should give us pause before we abandon our dear Jane. 
Secondly, while Nicole’s caution regarding the pitfalls of planning is wise, I think it’s important to rein the discussion back in a bit from where these posts (and perhaps Chapter 7 of the book) have taken us. I agree with the book insofar as it makes a limited point—that big planning as a means of curbing social disorder has a blighted history. To the extent that Chapter 7 is making a broader cautionary point regarding big land use planning in general, I’d observe that it’s difficult, if not undesirable, to rescue cities from obsolete historical forms (including past planning mistakes) through incremental changes. Milwaukee’s “Road to Nowhere,” San Francisco’s Embarcadero Freeway, and other examples in the book—not to mention former industrial zones, decommissioned ports, and failed, late 20th century commercial centers—occupy big swathes of land that require “big planning” to transform these areas into living neighborhoods. These sites often require decontamination, dramatic aesthetic rescue, and infusions of a critical mass of population to create conditions for safety. And realistically, cities can’t afford these areas to lie fallow of tax revenue. 

Planners have achieved important successes on some of these redevelopment sites. See, e.g., the Mission Bay redevelopment in my home city of San Francisco. Gone are the railyard/industrial sites and the concrete channel covering a creek to the Bay. Today you’ll find dogs, frisbees, kayaks, and yoga in a creekside park; thousands of units of condos and affordable housing (built with some of the city’s best and only contemporary architecture); and world class UCSF medical and research facilities. Your next visit, pack a picnic and hop on the new light rail extension to get there.

I wonder if it’s bad planning, not big planning, that is really the problem. Building on Nicole’s ideas, I’ll float the tentative theory that bad planning means: (1) using reconfiguration of the built environment as an excuse to curb social (and socially constructed) disorder, particularly to achieve racial or ethnic displacement (a key point of Nicole’s book), (2) cheap, shortcut versions of major architectural ideas and planning theories (like butchering Le Corbusier’s vision with the tower blocks of 1960s public housing), (3) political egotism at the expense of common sense (the big splash vanity projects of Robert Moses and many a mayor), and (4) desperate, short-termist revenue seeking at the cost of urban individuality, as in our ubiquitous auto or big box retail malls. While humility (and historical consciousness) is good medicine in general, I prefer to take Nicole for a cautionary tale about the first kind of bad planning rather than an indictment of big planning in general. When bad goes big, it’s certainly worse, but it’s not bigness that makes an idea bad.

Thanks to Matt, Nicole, et al.


 

Ordering the City, Redux

Many thanks to Prawfs for organizing this discussion, and, especially to all of the book club participants for their insights.  I’ve been given much food for thought and ideas that will undoubtedly shape my future work.  Here are a few initial ruminations sparked by the terrific discussion yesterday:

On Complexity, Planning and Humility

Like Ben, I have, at various points, held “fairly strong doctrinaire positions” about many of the issues that I tackle in Ordering the City.  Indeed, I must admit that, in writing the book, I found myself struggling with these positions—especially Jane Jacobs’s intuitively appealing claims about the disorder-suppression effects of city economic life.  In a sense, the book beat some of these positions out of me.  My encounter with the empirical research linking commercial land uses with crime and disorder, which Lee discusses, was a particularly painful one.  But, in the end, Ben is right that I came to appreciate the complexity of the city—and of cities, because different cities are very different organisms.
Appreciating this complexity helps, I believe, to shed light on some of the core puzzles of urban policy:  What makes a city neighborhood work? (To quote from Jacobs, “why [do] some slums stay slums and other slums regenerate themselves even against financial and official opposition?”)  Are mixed-use or single-use neighborhoods better (and why and where)?  What is disorder?  Is it always bad?  Does it cause crime?  What policing tactics “work”?  Unfortunately, it seems that the answers to these questions prove as complex and the city itself—a complexity that is only amplified by the fact that, at least in my view, the answers frequently vary by context. 

That said, unlike Ben and Chris (and perhaps also Stephen), the reality of complexity does not lead me to wholeheartedly embrace planning.  

I continue to be a planning skeptic—both because cities are so obviously complex, and city problems so obviously contextual, and because past planning efforts have often so obviously failed.  If Jane Jacobs got one thing right—and I think she got many things right—it was that an organic order tends to be superior to a government-imposed one.  The history of city planning (and probably also policing) is riddled with colossal mistakes.   I gave a talk at the L’Enfant Plaza Hotel in Southwest D.C. last week, and the neighborhood seemed almost palpably haunted by the memory of all the row houses that were demolished  to make way for “modern,” sterile cement monstrosities.  Closer to home, the city where I live—South Bend, Indiana—tore down most of its urban core during the urban renewal era and, as a result, the University where I teach—Notre Dame—had to build a “new” (and new urbanist) “college town” to make South Bend an incrementally more attractive place to live and work.  Today, if I was asked to provide city planners with one piece of advice, it would have to be to practice humility.   Thus, while I hope that governments do admit mistakes and change course quickly, I am nervous about Chris’s suggestion that the need to change course quickly weighs in favor of giving the government more flexibility to alter the existing built environment quickly.  In my view, Ben is right that “small government interventions might be better than [big ones].” 

I do, however, agree with Stephen that complexity (and humility) weigh in favor of land-use devolution, and I think it worth considering whether existing sublocal governmental institutions (for example, business improvement districts or even community policing meetings) might be adapted to perform land-use or quasi-planning functions.  It also might be useful to categorize ordering efforts as Lee suggests and to follow that categorization with a careful examination of which kinds of ordering efforts hold the most promise.  For example, I am not a big fan of bulldozers. As Chris points out, “physical changes to the built environment are hard to make,” and, I might add, even harder to undo.  Chris is also right, of course, that there are ordering success stories…and, ultimately, that it may be the case that physical/aesthetic changes are easier to accomplish than social ones.  Social capital is easily generated organically in healthy communities; but the government has a tough time kick-starting it in unhealthy ones. 

On Disorder and Economic Life

The question that I struggled with to the greatest extent in the book was the connection between economic activity, disorder and crime.  In the interest of full disclosure, I began the project convinced that economic activity was good for city life, and that mixed-use neighborhoods were preferable to single-use neighborhoods.  And I resisted evidence (including the studies that Lee discusses) to the contrary.  Here, again, I think the answer is context and complexity.  To begin, academic discussions of the defintionof “disorder” are frustratingly simplistic—although I am not sure my efforts at expanding the taxonomy of disorder was successful or not.  Laundry lists of “social” disorders frequently include economic activities—drug dealing, home businesses—that don’t seem to fit together.  As a devoté of HBO’s “The Wire,” I am convinced that the former is suboptimal for neighborhood life (although it might be more accurately categorized as criminal activity rather than social disorder).  Given the demonstrated costs of underemployment and economic stagnation in many urban neighborhoods, I tend to think that many home businesses don’t belong in the taxonomy of disorder—at least in some contexts.   Indeed, at least one study found that commercial land uses stabilize poor neighborhoods and destabilize wealthier ones.  (See also Stephen Clowney’s excellent article on “The Invisible Businessman” on this point.)  And, there is always the risk that our perceptions of economic activity (and disorder generally) are influenced by culture, race and class. Michelle’s reference to Lagos, for example, reminded me of a trip that I took to the Jamaica, Queens subway stop in 1996 to meet with my clients (who happened to be illegal jitney-van drivers).  I was initially horrified by what I saw – hundreds of passengers pouring out of the subway and rushing to unmarked vans, which zipped away as soon as they were full.  “Third-World chaos!” I mentally gasped.  But after about ten minutes of watching, I started seeing completely unscripted (by public authorities at least) order in the scene – the passengers knew which van to take; the drivers knew their passengers, and took time to help the elderly, disabled, and women with small children; drivers never accepted more passengers than they had seats; and there was a clear hierarchy of vans (with quality roughly signaled by the condition of vans).  The police stood by and watched, perhaps realizing that the necessity of the van service to the passengers outweighed its illegality.

Another complication is how to measure the “costs” of economic activity.  In most of the literature, scholars tend to use crime statistics (and surveys about perceptions of disorder).  But, as Lee points out, crime statistics tell the whole story.  If crime rates are slightly higher in busier neighborhoods because there are more people present in busier neighborhoods, then the increase might reflect a reduction in crime-avoidance (which itself imposes high social and economic costs).   Reliance on crime statistics would translate this arguable success into a failure—e.g., “commercial land uses increase crime, probably because they draw together victims and perpetrators.”   Moreover, if, as Edward Glaeser and Joshua Gottleib have argued, urban fortunes began to revive in the 1990s because more people developed a preference for urban life, then urban policies designed to suppress disorder and crime by suppressing commercial activity are arguably counterproductive.  Cities need to promote urbanness, not suppress it.   For more on this argument, see this interesting article on city v. suburban fortunes in the current recession.

On Disorder and Policing Policy

Measurement difficulties and crime-avoidance costs also complicate efforts to evaluate order-maintenance policing policies.  I’ve always been frustrated by the “nuh-uh!”/”uh-huh!” vibe, which Ben identifies, in the debates about order-maintenance policies.  Much of this debate is, again, driven by crime statistics, but I’ve always wondered whether the debate is missing the point.  “Safety” has both an objective component and a subjective one.  We can feel safe even when we are not … and we can feel unsafe even when we are.  (My eight-year-old son appeared at my bedside at 5 a.m. this morning, trembling with fear because he just had a dream that an evil monster lived in our house and was trying to destroy Indiana.)  I think that the perception of safety matters a great deal, and that it has been both neglected by policymakers and undertheorized in the academy.  Fear matters for a number of reasons.  Fear drives residents with economic means to the suburbs (or safer city neighborhoods).  Fear keeps us inside behind locked doors, as Lee and Stephen note, wasting money on security systems and relinquishing public spaces to bad guys.   Fear also undermines organic social capital and collective efficacy, which, as Chris notes, is very difficult to generate through public intervention.  (Indeed, one great irony of “Broken Windows”  is that, in his 1968 essay, “The Urban Unease,” William Julius Wilson disavowed efforts to use policing policy to build up community social capital.  “The difficulty,” he argued, “is that there is very little government can do directly to maintain a neighborhood community.  It can, of course, assign more police officers to it, but there are real limits to the value of this response.”)

An evaluation of the order-maintenance agenda based upon the perception of security—rather than crime statistics (which, it is worth noting, are both malleable and subjective, as recent events in NYC demonstrate)—might look very different than an evaluation of the order-maintenance agenda based upon crime statistics.   Disorder may or may not cause crime, but there is little question that it makes us fearful and undermines collective efficacy and social capital.  There is also significant evidence that certain policing tactics (especially foot patrols and community policing) reduce fear.  Thus, to borrow from Stephen’s post, “both land use policies and policing might ‘work’ even if they fail to reduce crime itself.”  Two important caveats:  (1) Perceptions of disorder are contextual and, as Tracy notes, influenced by race.  (2) Tactics that cause people to fear the police will backfire.  It turns out that fear of the police is also a major predictor of fear of crime. 

On Disorder, the Urban Poor, and Racial Minorities

Michelle, Stephen and Tracy are all correct to emphasize that “ordering” efforts have a disproportionate effect on the urban poor, and in particular on minority residents of urban neighborhoods.  There is, of course, no denying the history of racial discrimination in law enforcement and urban planning.   Abuses undoubtedly continue to occur, even as police departments become more diverse and better trained, planners consult with community members, etc.  But, the question remains—what policy prescriptions flow from these realities.  I close with a few thoughts on this final, and perhaps most complex, question.

First, as Tracy has forcefully argued in her own work, under-policing is a serious problem in poor minority neighborhoods, and minorities exercise their increasing political power to demand that urban officials prioritize public safety.  That said, not all order-maintenance policies are alike.  The available evidence suggests that foot patrols and community policing do the most to reduce the fear of crime and casts doubt on militaristic “swat team” strategies, which tend to alienate community residents.   Second, an obsessive focus on crime statistics likely generates bad incentives for police (see, again, recent events in New York City).  Third, an emphasis on what Lee calls “aesthetic order” likely works to the detriment of minority neighborhoods.  As Tracy points out, the aesthetic of the day—new urbanism—is clearly an elite one (despite promises of “charrettes” and community involvement galore).  Moreover, the new urbanist’s regulatory alternative to zoning (“transect zoning” or “form-based” coding) increases development costs and could well dampen development hopes in poor communities, which arguably need less land-use regulation, not more.  Fourth, the intersections between perceptions of disorder, race, and urban policy arguably weigh in favor of devolutionary approaches to both land-use and policing policies (see “On Complexity, Planning, and Humility”), above.  Finally, I agree with Stephen that that the ability of police officers to exercise force, combined with the possibility that the exercise of force will be unjust and discriminatory, is a reason to approach questions of police discretion with great caution.  But, I am not sure that Stephen is right that these realities weigh in favor of planners rather than the police officers as disorder-controllers.  My intuition runs to the contrary (and, despite Ben’s admonition, I am still a fan of intuition).  Planning and regulatory-enforcement have, as Michelle notes, worked to the detriment of poor minorities as well -- indeed, planning can devastate and even destroy entire communities.

Ordering the City

Set in a comparative planning context, a basic conversation about disorder might look like this. Order: Singapore is modern, clean, and green, with a ban on chewing gum that represents a planning school laughline regarding state oppression. Disorder: Lagos, as captured in a 2006 essay in The New Yorker, is teeming with poverty and desperation (“pandemonium,” fumes, filth) as well as with economic activity and entrepreneurialism (“the hustle never stops” and “everyone is a striver”).

Romaticization and vilification on both ends of the spectrum, sometimes by the same viewers. When Mayor Giuliani’s “quality of life” regulations tried to eliminate the street trades of poverty (from sidewalk selling of used handbags to homeless window washers), was he cleaning up the city for everyone or criminalizing the survival mechanisms of the poor? 
On questions of order and disorder, moral, empirical, and legal tensions (both real and perceived) abound: safety and cleanliness weighed against urban vitality and individualism, civil liberties as a constraint on crime control, urban recovery regulation as economic handcuffs on the struggling poor, and personal safety at odds with personal liberty.

Garnett, writing in the domestic debate, gives us organizing theory, vocabulary, and history to understand and manage order and disorder in the American City. In so doing, she manages to diffuse binaries and avoid naming heroes or villains.

As a matter of planning theory, Garnett’s setting is whether the rising tide of planning a la Jane Jacobs undermines policing policies that pursue the Broken Windows thesis.  In other words, does an emphasis on mixed-use planning, particularly the introduction of commercial establishments in residential areas, undermine policing that attempts to control minor acts of urban disorder that, when unchecked by the community and by law enforcement, lead to an escalation towards more serious crimes? The heart of that inquiry is among Garnett’s most important contributions in this book: Does commerce generate crime-causing disorder?

As a matter of law and politics, Garnett “sees like a state” by placing policing in the same arena as land-use controls/property regulation (everything from zoning controls to housing code enforcement). She frames the two approaches as local governments’ “two hands” in order construction and disorder suppression. In adaptation to judicial constraints on police discretion, cities have increasingly resorted to land-use and property controls as a means of disorder suppression. Cities mistakenly believe, she argues, that order construction is the same thing as disorder suppression, and in so doing, they discount the harms that order construction can impose on the intended beneficiaries of disorder suppression. For instance, planners should be wary that controls on small scale economic life, from street vending to shopkeeping, diminish social capital and economic opportunity for poor people who live in disorder-prone neighborhoods.

Normatively, Garnett doesn’t shy away from asking when (and how) cities should control urban disorder. She gives a specific but modest answer, suggesting ways to encourage small scale economic activity in cities (including home businesses), to preserve non-conforming uses, and to reduce regulation of mixed-use zoning and the rehabilitation of vacant buildings. She wisely cautions that humble and highly localized incrementalism, not grand plans and central theories, should be the stock and trade of urban revitalization.

If I have one criticism to make, it’s that sometimes, the “who” and “why” of land-use and property controls gets lost in the shuffle of the book. Garnett is conscientious about noting who tends to be targeted as disorderly by community policing efforts—particularly minority groups and young people, and even more particularly, minority youth. But when it comes to land-use and property controls, there are other actors and intentions on both the government and citizen side: Who is writing the rules that suppress disorder? Whom do they target, and who implements them?

Housing code enforcement, for instance, has been used as a tool against black and immigrant landowners to punish deviations from norms of segregation, but it has also been used as a tool against landlords that collect rent for uninhabitable premises in low-income areas. In both cases, the law may ostensibly address housing dilapidation or other issues of physical disorder, but in the first instance, its purpose is to sanction social disobedience and maintain racial homogeneity. As we know from the policing context, the devil may be in the discretion.

Nevertheless, by tying community policing to land-use controls, Garnett sweeps broad terrain. She does so with great depth in both the empirical and theoretical literature. Along the way, her readers will enjoy highly readable, educational vignettes of American urban policy. You’ll find stories (such as Mayor Giuliani’s attempt to reduce the presence of street vendors in New York City), ideas (from gang injunctions to empowerment zones), and historical chronologies (like the life, death, and reconstruction of American public housing). It was a learning experience and a pleasure.

Order and the Poor

It’s a pleasure to be part of this discussion of Nicole Garnett’s impressive Ordering the City.  The book is so rich and packed with goodies that it’s difficult to know which sail to hoist first.  One of the surest strengths of the book is that it puts some theoretical meat on the definition of urban “disorder.”  Competing groups of scholars have shouted themselves hoarse arguing about whether small disorders lead to more serious crime—yet coherent explanations of what disorder is remain in short supply.  Garnett attacks this hole in the literature on several fronts.  Most importantly, she argues that economic activity—especially in poor neighborhoods—is too often seen as a harmful disorder, rather than an essential part of the vibrancy that distinguishes city life.  Her examples of the different street vendors in New York City are comprehensive, nuanced, and engaging; they make for a real academic page-turner.  Garnett also brings home the idea that disorder is contextual.  The busway walls covered with Steelers murals that are the source of so much pride in Pittsburgh would certainly be considered a sign of urban decay in my fancy Lexington neighborhood.

Like Ben, I also found the discussion on the costs imposed by the fear of crime deeply enjoyable reading, full of many “a-ha” moments.  This section begins by cataloguing how the fear of crime undermines urban life; communities waste billions of dollars on private security systems and social capital erodes as neighbors stay indoors.  Backed by this information, Garnett makes a surprising intellectual move; she posits that the principal function of order maintenance policies is to reduce the sum costs of crime and the costs of avoiding crime.  Thus, both land use policies and policing strategies might “work” even if they fail to reduce crime itself—dissolving the fear of crime has real, tangible benefits for communities. 

While the great contribution of the book is in fleshing out the meaning of disorder and how it affects cities, Garnett also teases out a broader historical narrative from this material.  More specifically, she argues that municipalities have adopted land use regulations as a (inferior?) substitute for order maintenance policing strategies that the Supreme Court found unconstitutional in the 1960s and 70s.   Most of my quibbles with the book come out of this argument.  First, I think Garnett is simply more confident in the ability of police to exercise discretion without abusing their power.  I think I might prefer a planner enforcing order not because a policeman can throw me in jail, but because a policeman can shoot me with so few consequences.  Second, I’m not entirely convinced that the rise of property regulations as order-maintenance strategy is tied to the constitutional revolution of the Warren Court.  Arguably, at least, the jump in trespass-zoning schemes results from the constitutional blessing provided by the Supreme Court earlier in this decade.  This might simply be an example of power-starved local officials jumping at any regulatory tool they can get their hands on.        

A final thought: I would have liked to see Garnett focus her lens on how municipalities should navigate the tension between elites and so-called ordinary people when setting order maintenance policy.  In so many of the conflicts described in the book—the rise of the new skid rows, the regulation of street vendors, and the ban on home businesses—the good of poor neighborhoods seems at cross purposes with a city’s desire to compete against suburbs for middle class residents.  During the first part of the book I felt the argument was building toward a defense of land-use devolution—turning over more land use power to neighborhoods.  Garnett acknowledges devolution as a possible solution but doesn’t it give the full-throated defense that I thought her insights warranted.  Why?      

To sum up, Ordering the City is a fascinating read and makes a huge contribution to the literature on the urban form.  For too long land use issues have existed beyond the realm of criticism in political discourse.  Hopefully, the convincing arguments provided by Nicole Garnett will begin to change that. 

Steve Clowney

Ordering the City

Nicole Garnett’s important book covers a tremendous amount of ground, and does so very skillfully.  It’s a must-read for anyone who cares about urban issues.  I want to focus my initial remarks on two facets of the project.
 
The first is taxonomic.  In Chapter 3, Garnett offers a “four-category taxonomy of disorder” that includes “physical disorder,” “social disorder,” “crimes,” and “economic activities.”  Her well-taken point is that there’s disorder and then there’s disorder; not all phenomena answering to that name pose equivalent threats, or perhaps any threat at all.  Yet her analysis emphasizes that disorder is not only heterogeneous, but also at least partly in the eye of the beholder.  For example, Garnett cites Sampson and Raudenbush’s 2004 study (http://www.wjh.harvard.edu/soc/faculty/sampson/articles/2004_SPQ_Raudenbush.pdf) finding that perceptions of disorder are significantly influenced by racial and economic factors.  Given the level of subjectivity in perceived disorder, one wonders whether any effort to separate “bad” disorder from “good” disorder for policy purposes is doomed to produce unmanageable blurring of the lines between these subcategories (cf. “blight” in eminent domain). 
 

Since the book as a whole grapples with the extent to which governmental efforts to impose (various sorts of) order add or subtract value from urban areas, it might be interesting to approach the taxonomic task from a different angle by classifying not disorder but ordering efforts.  The categories might look something like this: “aesthetic ordering,” “social ordering,” and “law and order ordering.”  Again, the lines between the categories are not clear-cut, and a given law or policy might be motivated by more than one objective.  Nonetheless, it seems useful to bring out into the open the fact that not everything that passes as order maintenance has as its true objective the maintenance of either law and order or pleasing aesthetic environments.  Land use controls have long been wielded to maintain a particular type of social ordering that has a particular set of distributive consequences.  Garnett’s approach optimistically suggests that if we could only figure out what kinds of disorder are objectively benign, we could alter policy incrementally to reduce the costs associated with unnecessary forms of disorder suppression.  I am less optimistic.  The most potent barriers to change may stem not from insufficient knowledge about the nuanced and multifaceted nature of disorder but rather from political power and entrenched economic and social interests.  It is also worth emphasizing that not all ordering is imposed by governmental bodies.  Instead, the various sorts of governmental ordering collectively produce the conditions under which interdependent locational decisions are made by individuals and businesses; this governmental role in structuring self-ordering deserves policy attention as well.
 
The second facet of the book that I want to highlight involves its discussion of mixed-use neighborhoods.  Although sympathetic to Jane Jacobs’ intuition that the larger number of “eyes upon the street” in mixed-use areas will reduce crime, Garnett discusses a body of empirical work, regularly ignored in the legal literature, that challenges Jacobs’ thesis.  Some studies suggest that mixed-use areas do not, in fact, enjoy lower crime rates than single-use residential districts.  While these results complicate the question of how to arrange urban life, they do not necessarily suggest that single-use zoning is superior.  The reason is simple, but often overlooked in discussions about urban ordering:  we care about more than crime levels.  Garnett brilliantly invokes Guido Calabresi’s approach to accident costs to make this point.   As Calabresi explained, we do not want to avoid accidents at all costs; rather, we want to minimize the sum of accident costs and accident avoidance costs.  Similarly, we should be concerned not just with reducing crime, but rather with reducing the sum of crime costs and crime avoidance costs.  As Garnett notes, a huge but hidden set of crime avoidance costs involves simply staying home.  Policies that make areas feel safer help to draw people out, reducing those costs.  Even if crime levels stay the same or increase, the change may well have been worthwhile when crime avoidance costs are considered as well. 
 
I would take Garnett’s argument further and observe that the social stratification that accompanies single-use zoning, to the extent it is motivated by fear of crime, represents an enormously costly crime-avoidance apparatus, and one that delivers its benefits quite unevenly.  Here again, however, we must confront the possibility of political barriers to change.  If a reconfigured urban landscape could reduce the overall costs of crime and crime avoidance but would also alter the distribution of those costs, we would expect resistance from those who stand to lose.

Ordering the City

    Nicole Garnett has written a truly insightful book, full of colorful examples, and careful analysis.  It is broad in scope and a discussion of the book could easily go down any number of substantive paths.  I want to pick just one of the many interesting points to explore: why she ultimately is less willing to embrace innovation in land use policy than in other forms of government responses to urban disorder.

    One of the book’s central themes is the complex relationship between disorder prevention through a “Broken Windows” approach to policing, and through local land use controls.  She points out that disorder really exists on a continuum – from actual crime (assault, theft, etc.), to disorderly conduct  (loitering, loud music, harassing behavior, etc.), to disorderly land uses (vacant buildings, poor housing conditions, etc.).  Government responses to disorder, then, can come from policing, from land use, or both. Garnett appears to be in favor of innovation in policing practices – at least in poor urban communities.  She is more cautious about innovation in land use, however, and ultimately endorses incrementalism, arguing against radical change in any direction.  

    The principal and obvious distinction between land use controls and other kinds of regulatory responses to disorder is the apparent stickiness of land use decisions.  There is undoubtedly something to this.  The physical destruction of whole neighborhoods through urban renewal is effectively irreversible.  Moreover, bulldozer notwithstanding, the built environment tends to be particularly resistant to change. Development that occurs based on existing land use controls becomes all but immune from subsequent regulatory change. The legacy of progressive era public housing is still very much with us.  The result is easy to predict: land use policies that turn out to have been misguided can cast a very long shadow into the future.  

    On closer inspection, however, the effect on the future may not be – or at least may not need to be – quite so long, and the difference between land use and other regulatory responses may not be quite so clear.  Physical changes to the built environment are often hard to make.  The fact that so many failed housing projects remained standing for decades is testament to the inertia of land use decisions.  However, as Garnett convincingly demonstrates, it is often the less tangible forms of community glue that has the most to do with a community’s vitality and success.  She uses the term “collective efficacy” to describe a community’s ability to retain “effective social controls.”  (p. 134).  But collective efficacy is very hard to create.  Indeed, while it is undeniably related to disorder, the causal connections are complex and contested, with strong positive and negative feedback loops.  But once destroyed, collective efficacy in a community is very hard to restore. Misguided innovation in policing practices, in educational policy, or in other spheres of municipal control are as likely to destroy collective efficacy as changes in land use policies.  The same is true of a misguided commitment to the status quo. The effects of policy decisions along these dimensions may not be any easier to reverse than land use decisions.  

    Changes in the built environment also need not have as much of a lock-in effect as the law often provides.  There are, of course, ways in which existing development patterns can be changed.  Eminent domain is the ultimate backstop, and provides governments with flexibility to impose new land use plans despite existing development patterns.  Other tools serve a similar role, however, at much less cost.  For example, amortization provisions for prior non-conforming uses can help to reduce the lock-in effect of outdated or misconceived land use policies.  It is therefore particularly interesting that one of Garnett's specific prescriptions is to increase the protection of non-conforming uses.  (p. 198-99).  In her view, this will protect property owners from fickle and wrong-headed changes to land use planning.  It would, indeed, have that effect, and it would also foster valuable and important reliance on government land use policies.  But it comes at a substantial cost.  It reduces the flexibility of governments to change course and to try different approaches to land use.  In that regard, Garnett's prescriptions are entirely consistent with her commitment to incrementalism.  Because it is hard for governments to change course, they should do so only carefully.  But a different kind of response is possible as well: make it easier for governments to change course so that they can be more innovative.  I have recently argued for ratcheting down protection for prior non-conforming uses, at least partly for this reason. 

    While Garnett's book paints a bleak picture of the history of government innovation in this regard, there are success stories as well, as Garnett also explores.  The question, ultimately, is one of opportunity costs.  Is innovation and the risk of getting land use policy wrong worse than the risks of not innovating?  It will depend on a lot of factors, including the costs of changing course.  But I suspect that there are at least some situations in which trying to innovate is better than the incrementalism that Garnett embraces, and the communities should be given the tools to try.  

    Garnett has done a valuable service by examining the wrong-headed (and the successful) approaches to urban disorder over the years, and by considering them across disciplines.  She is convincing when she argues for caution.  But there are times, too, when the risks of getting it wrong are even greater than the risks of not being bold.  At the very least, after Garnett's excellent book, we have a clearer sense of the stakes. 

Meares on "Ordering the City"

The following post is from Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School:

I applaud Nicole Garnett for her smart and thorough review of the relationships between land-use regulation and disorder. There is much to chew on here. As I did, I found myself reflecting on one study with which I was familiar before reading the book and which Garnett cites twice. The study, co-authored by my former colleague, Robert Sampson, and Stephen Raudenbush, is unique. Sampson and Raudenbush test the hypothesis that perceptions of neighborhood disorder are socially constructed. Specifically, they sought to determine whether, once adjusting for a measure of observed physical disorder, racial composition impacts individuals’ reports of disorder.  As it turns out, neighborhood racial context helps shape residents’ perceptions of disorder.  Using data collected from Chicago neighborhoods, Sampson and Raudenbush demonstrate that as the percentage of black residents in a neighborhood increased, so too did perceptions of disorder by residents in each ethnic group residing in that neighborhood including blacks.  As far as I know, this is the only study of its kind, but I don’t think it is necessary to demand several replications before pursuing the point.  People’s perceptions of disorder are fueled by the physical disorder they see, unsurprisingly.  More surprisingly, however, people’s perceptions of disorder are driven very powerfully by the number of black neighbors they have.

I think this point complicates some of the prescriptions Garnett advocates in her book. It is true that historically zoning was used to disadvantage racial and ethnic minorities – especially African Americans, so Garnett’s skepticism of zoning is potentially congenial to a program that advances the interests of this group.  On the other hand, as racial and ethnic minorities gain political power in many urban centers, there is reason to be more sanguine about locally-controlled zoning, just as one might be more comfortable with municipal policing today than that of 40 years ago.  Garnett explains near the end of the book that the new urbanist approach is to regulate building form, rather than land use.  But given the Sampson and Raudenbush research, I worry that the aesthetic demands of the new urbanists might also be skewed by social construction.  Replacing one form of expertise-driven regulation for another might not lead to the kind of participatory regulation that is one sure solvent of the binds created by decades of disenfranchisement. Before I jump on the band wagon, I think I need to hear a bit more about how the new approaches address old and durable problems.

Complexity and the City

Thanks to Matt for the invitation to participate in this book club on Nicole Stelle Garnett’s Ordering the City.  Thanks also to Nicole for writing such an engaging and enjoyable book.

Ordering the City is refreshingly non-doctrinaire.  If there is one overriding theme in the book, it is that the problems facing cities are complex, and that the solutions to these problems, if they can be found, are likely to be equally complex and multi-faceted.  There is a tendency among academics, government officials, and pundits to make categorical arguments about cities (and, I suppose, about pretty much everything else), and it isn’t hard to find smart people advocating opposite sides of any give issue.  Community policing reduces crime!  Community policing doesn’t reduce crime!  Eminent domain should never be used as a tool for redevelopment!  Eminent domain is an important tool for redevelopment!  Let the market make all land use decisions!  Use planning to avoid market failures! 

I have personally held, at various points in my life, fairly strong and doctrinaire positions about these issues one way or another.  And I have been thinking about these issues for almost my entire life.  My mother was a city planner, first for Pittsfield, a small city in western Massachusetts, and later for the Boston Redevelopment Authority.  From the time I was in elementary school, dinner table conversation was frequently about urban renewal, zoning, historic preservation, and the various idiocies occurring at City Hall.  I was probably one of the few American children who could identify Jane Jacobs.  When my mother died last year, I inherited her author-signed copy of The Death and Life of Great American Cities, a classic book that seems to be one of the biggest influences on Ordering the City.

Reading Ordering the City crystallized something that has been in the back of my mind for the last few years:  the doctrinaire positions that I and others have held about these issues are not so much right or wrong, but instead often miss the point.  There are no easy answers, and it is a mistake to approach any broad and complex issue from one narrow perspective.  This isn’t to say that theories or big ideas aren’t important – they are.  It’s just that context matters, and what works in one situation might not work in another.

Take, for example, Jane Jacob’s influential idea that “economic activity will increase, not undermine, neighborhood-social ties and will suppress disorder.” (OTC, p. 5). 

Jacob’s position always made a great deal of intuitive sense to me, and I think it has a lot of truth to it.  But it is a mistake to reason from this important observation directly to the conclusion that economic activity is always a good thing for a neighborhood.  I lived for 13 years in New York City’s West Village, just south of the Meatpacking District.  In the early- and mid-1990s, the Meatpacking District was largely vacant at night, and did not feel safe at all.  By the early 2000s, the Meatpacking District was a hopping commercial district that was vibrant and that felt safe.  But the same kind of economic activity, just two blocks south, might seem problematic in established residential areas where noise and crowds raised quality of life concerns.  The economic activity surrounding a restaurant might be welcome, where the economic activity surrounding a nightclub might not.  The right answer for Little West 12th Street might not be the right answer for Jane Street, even though the distance between the two is only a couple of hundred feet.  And, of course, what might be the right answer for the affluent West Village might not be the right answer for a poor neighborhood somewhere else in New York City, or somewhere else in the world.

Community policing is another example.  There is some debate about whether community policing reduces crime.  As the discussion in Ordering the City emphasizes, however, focus on crime reduction alone would miss important parts of the story.  Community policing makes people feel safer, and that feeling of safety might matter as much or more to people than actual safety measured in statistical crime rate data.  Regardless of their specific impact on crime rates, community policing and other order-maintenance policies might “make cities more attractive places to live, thereby improving the lives of current residents and helping them compete with suburban alternatives.” (OTC, p. 129).  Focusing on crime rates alone – a logical and intuitive thing to do in considering policing strategies – would be a mistake.

Faced with a highly complex balance of competing social goods and preferences, it is tempting to try to rely on the market to order the land use of a city, because the market would generally be better than the government in reflecting the varied preferences of the city’s residents.  The organic growth of vibrant city neighborhoods championed by Jane Jacobs was largely the product of market forces, not government planning.  But markets fail, and pretty much everyone except the most hard-core libertarian would concede some role for the government in ordering the city.  The difficulty comes in trying to get government actors to use a light hand, and to free up space for the market to create the vibrancy that make cities amazing places.

Even if complexity makes it a mistake (or at least risky) to rely on broad and categorical theories to order the city, academics can give important advice to policymakers.  As I noted above, ideas are important, even if careful thought is required before these ideas are applied in any given context.  Two lessons from Ordering the City deserve special note.

First, small government interventions might be better than big government interventions.  Take, for example, the use of eminent domain.  The sad history of urban renewal counsels against the broad use of eminent domain for mega-development projects.  More recent takings like those in New London that led to the Kelo litigation suggest that this lesson has not been fully internalized by government actors.  On a more modest scale, though, the selective use of eminent domain can spark the organic revival of an entire neighborhood.  New York’s Upper West Side is probably a better place now than it would have been if the use of eminent domain to clear the space for Lincoln Center had been much broader in scope.  Mega-projects also tend to lead to a kind of group-think that can be incredibly dangerous.  My mother’s graduate school thesis was on the relationship between mega-project urban planning and madness-of-crowds phenomena like the Dutch tulip craze, and the comparison has always struck me as apt.

Second, it is a mistake to base urban policy on intuition and on reasoning by anecdote.  Government officials, especially, need to be cognizant of how their own backgrounds can color their views on policy issues.  The different preferences of people from different backgrounds comes up in various contexts in Ordering the City – Nicole, for example, notes that “My parents, who both grew up in rural Kansas, are likely to have lower thresholds [for background noise] than someone who grew up on Manhattan’s Upper East Side.” (p. 75).  (I have long had a working, and purely anecdotal, theory that vacationing Americans from big cities like Rome, where suburbanites tend to prefer Florence.)  Policy makers need to take these preferences into account not only in evaluating what city residents want, but in how their own background and upbringing might shape their views of ideal city environments.  In both Ordering the City and her other work, Nicole has noted the potential for conflict between the values of the urban elites who make the plans and the non-elite residents whose neighborhoods are being planned.  Elites, for example, might place a higher value on certain environmental and aesthetic qualities than on conflicting qualities such as affordability.  It should be a fairly trivial point that the preferences of the residents of a community should be the focus of efforts to order the city.

Ben Barros

Welcome to the Book Club on "Ordering the City"

Today begins our book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America."  Click here for more information on the club.  We hope you'll join us in the comments.

Reminder: "Ordering the City" Book Club begins Monday

Join us Monday for our book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America"  The club begins on March 22 and will run through March 24.  Here are our contributors:

• Michelle Wilde Anderson, Assistant Professor, UC Berkeley School of Law
• D. Benjamin Barros, Associate Professor, Widener University School of Law
• Stephen Clowney, Assistant Professor, University of Kentucky College of Law; Visiting Assistant Professor of Law, University of Pittsburgh School of Law (Spring 2010)
• Lee Fennell, Professor of Law, University of Chicago School of Law
• Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School
• Christopher Serkin, Associate Professor, Brooklyn Law School
• Nicole Stelle Garnett, Professor of Law, University of Notre Dame Law School

And here's a brief synopsis of "Ordering the City" from Yale Press:

This timely and important book highlights the multiple, often overlooked, and frequently misunderstood connections between land use and development policies and policing practices. In order to do so, the book draws upon multiple literatures—especially law, history, economics, sociology, and psychology—as well as concrete case studies to better explore how these policy arenas, generally treated as completely unrelated, intersect and conflict.

 

Nicole Stelle Garnett identifies different types of urban “disorder,” some that may be precursors to serious crime and social deviancy, others that may be benign or even contribute positively to urban vitality. The book’s unique approach—to analyze city policies through the lens of order and disorder—provides a clearer understanding, generally, of how cities work (and why they sometimes do not), and specifically, of what disorder is and how it affects city life.

We hope you will join us Monday!

All that Glisters is Not Gold (Yes, I spelled Glisters right.)

If you haven't read The Merchant of Venice lately, let me be the first to urge that it is your duty as a lawyer to do so.  First, all the cool lawyers (oxymoron?) are reading it.  In fact, Shakespeare has been cited in over 800 judicial opinions.  Second, you will be amazed that your legal training gives you a different perspective on the play than you had when you read it in high school or college. 

I make this recommendation now because I had the great fortune to be asked to speak on a panel at an interdisciplinary conference at the University of Florida called Convergences and Conversions: The Merchant of Venice Into the Twenty-First Century.  I was the only law professor among professors of English literature, Spanish literature, Hebrew literature, History, Philosophy, Women's Studies, Film Studies, and Judaic Studies, which was intimidating.  However, I found it absolutely exhilarating to participate in a discussion in an interpretive community that is so attentive to allusions and nuance and so steeped in critical theory.  Even more exhilarating was the experience of reading The Merchant of Venice for the first time since I became a full-fledged lawyer, Jew, and mother.

One of the most interesting questions for me as a lawyer and Jew is why the Jewish merchant Shylock has faith that the legal system will give him the benefit of his bargain, his pound of flesh.  Why does Shylock insist that "[t]he Duke shall grant me justice"? (III.iii.8.)  Even before the trial scene, the play is full of examples demonstrating how Venetian law treated Christians and Jews unequally and helped to define the Jew as "other."  Portia's deceased Christian father is able to call on the law's assistance to help him impose control over who his daughter shall marry, but such is not the case for Shylock.  When the Christian Lorenzo steals Shylock's daughter and his ducats, Shylock lacks legal recourse to retrieve them.  To add insult to injury, the law ends up forcing him to financially aid the marriage.  Jews like Shylock would have played an essential role in the mercantile culture of Venice, and yet even commercial law was skewed against them.  With regard to the commercial law, Jews were apparently forbidden to own real property, which is what would have driven Shylock into the business for which he is reviled by the Christians dependent on it.  Family law, of course, is another example, in which there is pronounced inequality in the play.  Venice is even, as Shylock points out, a society in which resides "many a purchas'd slave." (IV.i.90)  Why, then, should Shylock be surprised when the Duke relies on a counterfeit legal expert (the disguised Portia) and a troubling precedent to resolve the claim? 

Despite Portia's eloquence about the "quality of mercy" (IV.i.184), the winning argument in the play is that Shylock's contract is trumped by a criminal law that protects only Christians.  Although you might remember that Shylock lost because he failed to specify that he could take blood along with his pound of flesh, the real problem was that execution of his contract would have required the taking of "Christian blood" (IV.i.310).  Even if the contract had mentioned blood, it appears that it would have been void because of Shylock's status as a Jew, and hence an alien.  As Portia explains, "It is enacted in the laws of Venice,/If it be proved against an alien,/That by direct or indirect attempts/He seeks the life of any citizen,/The party 'gainst the which he doth contrive/Shall seize one half his good; the other half/Comes to the privy coffer of the state,/And the offender's life lies in the mercy/Of the Duke only . . . "  (IV. i. 348-356).  Shylock, by virtue of his religion, is defined as alien, outside the equal protection of the laws.  His mistaken belief that contract law, at least, will apply in a neutral fashion is his undoing, leading to the loss of his property and religious conversion enforced by the power of the state.

For me, the play raises an interesting jurisprudential question:  why do individuals accustomed to unequal treatment in law still continue to expect Justice?  Is it because the law masks its role in constructing the individuals against whom it discriminates as "others"?  In the play the Duke speaks as if he is bound by law, and not free to decide in accord with the dictates of mercy, and Shylock apparently subscribes to this notion as well.  Why should he, when all of his past experience should have taught him that Venetian law will be written or interpreted to favor those in power?

I hope you'll reread it.  When you do, I hope you'll also ask yourself how come the mothers of Portia and Jessica are absent from the text.  When you answer that question, email me and let me know.  Enjoy.

Some Critics Weigh In on Privilege or Punish (Version 1: NCLR)

Over at SSRN, I've just posted a bundle of essays that comprise the New Criminal Law Review's symposium on my recent book with Jennifer Collins and Ethan Leib, Privilege or Punish. We are grateful to Professors Doug Berman (OSU, sentencing guru); Naomi Cahn (GW, family guru); and Jack Chin (UArizona, general guru) for their insightful and sharp reactions to our book. The exchange also offers our reactions to these critical challenges in a reply essay. Many thanks to Lindsay Farmer and Mark Penrose and the other good folks at the New Criminal Law Review for hosting this symposium in their pages of the Winter 2010 issue of Volume 13.

The abstract appears after the jump, along with the titles of the essays.

This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled *Privilege or Punish: Criminal Justice and the Challenge of Family Ties* (Oxford 2009). In addition to the three review essays, the collection includes an essay by the book's authors that serves as a reply to this set of critiques. Collectively, we are grateful to the New Criminal Law Review, which is hosting this collection in an upcoming issue.

The essays are titled, respectively:
Berman: 
DIGGING DEEPER INTO, AND THINKING BETTER ABOUT, THE INTERPLAY OF FAMILIES AND CRIMINAL JUSTICE

Cahn:
PROTECT AND PRESERVE?

Chin:
MANDATORY, CONTINGENT, AND DISCRETIONARY POLICY ARGUMENTS

Collins, Leib & Markel: 
(WHEN) SHOULD FAMILY STATUS MATTER IN THE CRIMINAL JUSTICE SYSTEM?

Book Club on "Ordering the City"

Many thanks to Al, Chris, Willoughby, Anders and the commenters for a terrific book club on "The Ghost of Jim Crow."  You can find these posts by looking under the PrawfsBlawg "Books" Category. 

Next month Prawfs will be hosting a book club on Nicole Stelle Garnett's "Ordering the City: Land Use, Policing, and the Restoration of Urban America."  Garnett is a Professor of Law at University of Notre Dame Law School, and she has written extensively on property, land use, and local government law.  Last year the Federalist Society awarded her the Paul M. Bator Award for demonstrated excellence in legal scholarship and commitment to teaching.

The club begins on March 22 and will run through March 24.  I'm extremely excited about our terrific group of contributors.  They are:

• Michelle Wilde Anderson, Assistant Professor, UC Berkeley School of Law
• D. Benjamin Barros, Associate Professor, Widener University School of Law
• Stephen Clowney, Assistant Professor, University of Kentucky College of Law; Visiting Assistant Professor of Law, University of Pittsburgh School of Law (Spring 2010)
• Lee Fennell, Professor of Law, University of Chicago School of Law
• Tracey L. Meares, Deputy Dean and Walton Hale Hamilton Professor of Law, Yale Law School
• Christopher Serkin, Associate Professor, Brooklyn Law School

And here's a brief synopsis of "Ordering the City" from Yale Press:

This timely and important book highlights the multiple, often overlooked, and frequently misunderstood connections between land use and development policies and policing practices. In order to do so, the book draws upon multiple literatures—especially law, history, economics, sociology, and psychology—as well as concrete case studies to better explore how these policy arenas, generally treated as completely unrelated, intersect and conflict.

 

Nicole Stelle Garnett identifies different types of urban “disorder,” some that may be precursors to serious crime and social deviancy, others that may be benign or even contribute positively to urban vitality. The book’s unique approach—to analyze city policies through the lens of order and disorder—provides a clearer understanding, generally, of how cities work (and why they sometimes do not), and specifically, of what disorder is and how it affects city life.

We hope you will join us next month for the club.

Which Books Should Be Reviewed in the upcoming Mich LR Books Issue?

Well, I have one suggestion. (Thanks, btw, to all those good people who helped us gin up the PoP website!)

Actually, the question of the post is not in jest and not simply a way to sell Privilege or Punish. The other day we received a note from the folks in the Books Dep't of the Michigan Law Review. They actually *are* soliciting ideas for the Books issue. In particular, they would love readers and writers of Prawfs to send in proposals or manuscripts to them. The link for information regarding submissions to the Books issue can be found here.  Good luck!

P.S. Just discovered that Orin's made some suggestions over here. Feel free to add your own thoughts and recommendations in the comments.

Book Club on "Ghost of Jim Crow" continues

Just wanted to provide an update on the book club, which continues through the end of today.  Our contributors have each posted their thoughts, and Anders has responded in the comments.  Here are the posts:

Willoughby Anderson, A Smarter Southern Strategy

Al Brophy, Attack on the Moderates

Chris Schmidt, Strategic Constitutionalism and Resistance to Brown

I'd like to thank Willoughby, Al, Chris, and Anders, as well as those of you who have added your own comments, for a great club.  Thanks for contributing.

Strategic Constitutionalism and Resistance to Brown

In The Ghost of Jim Crow, Anders Walker has written such an interesting and provocative study of the efforts of “moderate” southern leaders to resist Brown that it is difficult decide which thread to pick up.  Let me briefly highlight what I see as several particularly valuable contributions Walker makes to the history of the post-Brown South.  Then I will turn to one of the broader, more theoretical claims of the book—that the moderates practiced a distinctive “strategic constitutionalism”—and suggest some possibilities and limitations of this concept.

One of the great strengths of this book is that Walker takes seriously state-level governance.  This is partly a product of his choice of protagonists for the book—Mississippi Governor J.P. Coleman, North Carolina Governor Luther Hodges, and Florida Governor LeRoy Collins—three men who obviously took seriously the capacities and limitations of the state as a governing institution.  Walker makes the valuable point that the defense of segregation in the aftermath of Brown was not just a continuation of practices and policies that had been previously established as bulwarks for Jim Crow.  Rather, it demanded significant innovation.  It required creative thinking and collaboration. Walker is particularly good at charting the network of influence between the southern states.  The governors he profiles were in regular contact with one another, comparing strategies and sharing policies.

The moderate defense of segregation was, in short, very much a political process, demanding the creation of new governing institutions and reforms to existing ones.  The process of centralization that civil rights activists demanded from the federal government was replicated on the state level, with southern governors pushing programs designed to centralize and modernize state institutions.  This was all part of an effort to exercise more control over the twin threats to their moderate path: the civil rights activists one side; the KKK and other segregationist extremists on the other.  In this way, the moderates were at once defenders of the old racial order and modernizers—an apparent paradox that Walker’s book helps to explain.

While the central contribution of the book is in flushing out of the historical record of the defense of segregation in the wake of Brown, Walker also draws out some broader claims from his material. A central claim he makes is that the moderates embraced a distinctive vision of constitutional development: “strategic constitutionalism.”  I found the concept of strategic constitutionalism suggestive, but ultimately underdeveloped as a theoretical framework for his study.  References to strategic constitutionalism appear periodically throughout the book, although it never receives a sustained analysis.  As I understand it, strategic constitutionalism is a kind of constitutional claim-making by indirection.  When faced with an interpretation of the Constitution that one opposes, rather than marshalling lawyers, writing briefs, and going to court, a strategic constitutional response would be to focus on the world of politics and culture.  The goal is to influence public opinion and forge political alliances. After Brown, the moderates sought to demonstrate to the nation that the South was not dominated by demagogues, that there were reasonable explanations for why the white South might not want to embrace integration.  If successful here, they assumed, Brown’s reach would be limited.  The constitutional meaning of equal protection would, in effect, move closer to the moderates’ position and further from the NAACP’s.

This is all surely right.  And this general approach, which emphasizes the extrajudicial component of constitutional change, seems a perfect framework for Walker’s book.  But I like to see the concept flushed out a bit more.  How generalizable a concept is strategic constitutionalism?  Were the moderate opponents of Brown distinctive in recognizing the role of political support and public opinion in dictating the ultimate meaning of Brown?  This cannot be right.  Even if the NAACP lawyers put exaggerated faith in the power of a Supreme Court opinion to break the back of Jim Crow, the civil rights community fully recognized that the battle was one for the hearts and minds of the American people, and that this battle for public opinion was ultimately a battle for constitutional principle.  So were Roy Wilkins and Martin Luther King, Jr., also practitioners of strategic constitutionalism?  For this matter, couldn’t we say that the extremists defending segregation also recognized the core insights of strategic constitutionalism?  While, as Walker emphasizes, their tactics were ultimately counterproductive, helping to shift national opinion behind the civil rights movement, for a time Massive Resistance helped unify the South and sent a clear message to the nation that Jim Crow was not going to go down easily.  And this surely had constitutional consequences, emboldening southerners in Congress to continue their stand against civil rights reform, challenging the liberal faith in the capacity of legal reform to uproot entrenched social practices, and discouraging further interventions by the Supreme Court.  (With the limited exception of Cooper v. Aaron (1958), the Court was conspicuously silent on the question of school desegregation for a decade after Brown.)  At this point I begin to wonder whether there is anything but strategic constitutionalism.  Even the most litigation-centered reform campaigns must recognize that politics and public opinion play a role in the success or failure of their causes (regardless of whether or not they secure victories in court). 

One more point on strategic constitutionalism.  While broadening the definition of constitutional claim-making to include extrajudicial contexts, Walker seems to fall back on a traditional conception of the ultimate target of these constitutional claims.  Creating political and popular support for the moderate defense of segregation was a means to a specific end: to convince the Supreme Court to issue decisions favorable to the cause of the southern moderates. Strategic constitutionalism, Walker writes in the introduction, was “aimed at convincing the Supreme Court to qualify its Brown holding.” But why not extend the insight from means to ends? An acceptance of extrajudicial action as a method of constitutional argument would seem to invite a broadening of the ultimate targets of these constitutional claims.  Extrajudicial actors are not just intermediaries between those who hope to influence constitutional law and the Supreme Court’s promulgation of constitutional doctrine.  They should also be recognized as the ultimate audience for constitutional argument.  Certainly a central goal of strategic constitutionalism was to convince the Supreme Court to deliver opinions supportive of the position of southern moderates, as it did, for instance, when it upheld pupil placement plans in 1958.  It would seem just as consequential, however, to consider other targets: lower federal courts, of course, particularly since most of the burden of implementing Brown was left to them; but also political actors—members of Congress, who let the Court stand alone on the desegregation issue for a decade; and executive branch officials who had responsibility for enforcing civil rights laws.  Extrajudicial constitutionalism—strategic or otherwise—should be recognized as more than just an alternative pathway to influencing the Supreme Court.

While these comments about strategic constitutionalism are, in part, critiques, hopefully they also indicate the rich potential Walker’s history contains for expanding our understanding of constitutional development.  I hope to see Walker continue to explore these issues in his future work.

Attack on the Moderates

It’s an honor to be here to discuss Anders Walker’s The Ghosts of Jim Crow, especially with Willoughby and Chris, two of the most exciting scholars of the post-Brown Civil Rights era.

Jim Crow and its end is one the most vibrant areas in legal history; we’ve had some really terrific books in this area in recent years.  Just scanning books on the twentieth century race and law section of my bookcase brings Risa Goluboff’s Lost Promise of Civil Rights, Mary Dudziak’s Exporting American Dreams: Thurgood Marshall’s African Journey, and Paul Frymer’s Black and Blue to mind immediately.  Even in that distinguished company, Anders’ book shines; it is one of the most original and most important books I’ve read in the legal history of twentieth-century civil rights.  Anders presents a bold thesis, which challenges how we think about our friends (or people I’ve thought of as my friends up until recently): the moderates in the post-Brown South.....

Often it’s the radicals who’re disliked by historians.  Take the 1940 movie Santa Fe Trail, which starred Errol Flynn as Jeb Stuart and – get this – Ronald Reagan as George Custer.  They were young army officers who helped put down the John Brown Rebellion in 1859.  (I think the stuff about Custer is fiction; Stuart actually was part of putting down the rebellion.)  Don’t believe me about President Reagan?  Check out youtube at 2:25. In that movie, John Brown looked like a deranged nut (which maybe he was – but that’s somewhat aside from this story).  It was the moderate army officers who were the heroes of this movie; it was the abolitionist extremist who was the villain.  That fit with what historians thought at the time; they referred to the Civil War as the product of a blundering generation who allowed extremists on both sides to drag our country into a needless war.  The sober moderates were the people historians–and lots of other people–respected in the 1940s and 1950s.  And I suppose in part because our country is so moderate, we have a national affection for the moderates, who keep their eyes on long-term goals.  The sober, hard-working, well-meaning moderates usually aren’t “sexy”; they don’t "resort to violence"; they’re "quite, inoffensive people."  And they’re often successful in business and thus are "the heart of their community."

Moderates have a good reputation in the Civil Rights movement as well.  Think of that most famous of moderates, the fictional lawyer Atticus Finch.  (Malcom Gladwell had a nice discussion of southern moderate whites last summer in the New Yorker.)

But there’s a turn taking place in interpretation.  The extremists have become, in some odd ways, the heroes.  In the phrasing of Glenn Eskew’s brilliantly titled book, But for Birmingham, Birmingham extremists were catalysts for change.  Bull Conner was so outrageous that he drove moderates into the pro-Civil Rights camp.  There’s a lot to that – and the brilliance of one of the Civil Rights strategies was the realization that extremists were their own worst enemies.  Violence is so, so frequently counterproductive.  It certainly was in Birmingham.  Thus, extremists are – inadvertently, obviously – some of the most important catalysts for change.  This makes me think that somewhere in Birmingham, amidst the statues they've put up of late of heroes of the Civil Rights era, there ought to be a statute to old Bull, because he sure did a lot to promote the cause.  

For a long time, the daring radicals opposite old Bull, the Freedom riders and the sit-in stagers, and the marchers from Selma to Montgomery, have been our nation's heroes, of course.  One might add, too, the Tulsa, Oklahoma veterans of the "Great War," who went off in 1921 to fight to protect their community from the white mob with the strains of WEB DuBois' editorial "Returning Soldiers" echoing their head: "We return.  We return from fighting.  We return fighting."  The extreme conservatives and the radical reformers are staging a comeback among historians.

Now, put that picture together with Anders’ interpretation of moderates in The Ghosts of Jim Crow.  Anders revisits three “moderates”: Governors J.P. Coleman of Mississippi, Luther Hodges of North Carolina, and LeRoy Collins of Florida.  He shows that a lot of what they did had the effect of limiting opportunities for equality or for protest.  (And sometimes those effects were directly intended).  This is a really rich volume.  Let me steal a quick summary of several Anders’ key points from his introduction (5). First, that Brown was an important step in the emergence of civil rights.  Anders is certainly correct here; I prefer his interpretation to those who think of Brown as a “hollow hope,” or those who see Brown’s key function as creating a white backlash.  Second, the governors illustrate how state leaders react to Supreme Court decisions and develop law.  (This is an element of what we’re increasingly referring to as “popular constitutionalism.” Anders really pushes back the frontier of knowledge here – I think this is a model for how to link legal thought and considerations of political expediency with the action of executive branch officials, a topic that goes beyond the "popular constitutionalism" literature I've seen.) Third – and most directly related to my comments below – even as the governors limited violence against African Americans, they “discretely shifted the burden of constitutional change onto black shoulders.”  To take one example, Florida Governor Collins shut down bus service in Tallahassee when African Americans boycotted the segregated buses.  One can imagine Collins thinking: “You don’t like segregation?  Fine; there won’t be any buses at all.  How do you like that?”  So much for moderation.

Anders quite convincingly depicts the governors as people who dragged their feet and worse.  That poses, for me, two lines of questions.  First, were substantially all white moderate politicians trying to drag their feet on change ... or worse?  Do we no longer think that moderates might actually have believed that their methods were better-suited than confrontation with conservatives?  Isn’t it possible, indeed likely, that many moderates wanted change, they just wanted it to proceed in a slower and more orderly fashion than many others?  Ok.  Maybe moderates were just using the moderation as a cover for doing nothing.  You may recall that Martin Luther King thought that the counsel to “"wait" has almost always meant ‘never.’” Similarly, King spoke of the “tranquilizing drug of gradualism” at the March on Washington.  Anders revives that insight and adds extraordinary detail to King’s interpretation.

Second line of questions, then: Is there no reasonable possibility that the moderates’ methods – even if they were often based on the desire to do nothing – really were effective in bringing about some positive change?  Was there nothing to Booker T. Washington’s counsel that African Americans seek gradual accommodation?  I don’t carry a lot of brief for Washington; I’m on WEB DuBois’ side on this.  But I think that as a strategy, Washington may have been onto something – maybe not much, but not nothing.

To recap, then, my questions about Anders’ book: are Civil Rights era southern moderate politicians generally as “bad” as those in this book?  And if they are, is moderation itself conservative and anti-reform.  (I suppose an important part of the answers to these questions turns on how we define a moderate.  Moderates are, after all, not liberals or radicals – they’re people who want to promote some more gradual goals.  But then again, how moderate is someone who proposes making it a misdemeanor for a single women to have more than one child? (81)  Hey, at least that was an improvement off the idea we’d sterilize unwed mothers.  Maybe what we need is to reframe our definition of people as moderate or conservative?  Anders raises a lot of questions, even as he brings a lot of precision and skepticism to the history of the south's response to Brown.  He's set a framework that we're going to be talking about for a very long time; and I suspect his insights will be exported from the post-Brown south to lots of other places and other times, like the antebellum south....

Now, two final questions.  First, how might we fit fictional southern moderate lawyer Atticus Finch into this picture?  And now that moderates are coming in for a tough time of it, how are the radicals going to come out?

A Smarter Southern Strategy

I am pleased to be a part of this discussion of Anders Walker’s important and thought-provoking The Ghost of Jim Crow.  Walker takes on two well-worn themes of civil rights history—the southern white moderate and the backlash to Brown—and in so doing reorients our understanding of resistance to desegregation. 

While police dogs, fire hoses and politicians like George Wallace loom large in the story of resistance, Walker places moderate southern governors back in their central, rightful place.  Even before the Brown decision came down, these leaders saw the writing on the wall and were strategizing how to maintain the racial separation they thought essential to the South.  The governors consulted with each other and legal experts, while mustering every weapon at their disposal, including informants, local leaders and the press.  They developed pupil placement laws by transforming assignment criteria from racial categories to group-specific standards like illegitimacy and poverty that disproportionately affected segregated black communities.  To reinforce the new race-neutral criteria, the leaders instituted state welfare and family law reforms designed to create disparate effects, while reigning in rogue local sheriffs to minimize violence.  Walker parses the moderates’ sincere belief in the benefit of Jim Crow to both black and white communities.  Yet the author also looks below the political posturing to the powerful mechanisms they established to reinforce race-based inequality.  Changing the face of southern resistance from the nullifiers and neo-confederates to these powerful, thoughtful leaders, Walker helps us better appreciate the powers aligned against substantive change.

One of Walker’s most interesting contributions is his insight that segregationists pursued their aims on multiple fronts.  The governors worked within the courts, but also with the media, through discussions with black leaders, via state law reforms, and eventually from influential positions in the federal government.  The “strategic constitutionalism” employed by the governors seems to have broad effects, even changing the very language used to discuss desegregation. And hasn’t this moderate framing of the debate won out–the rhetoric around civil rights has metamorphosized from the immorality of exclusion into the unfairness of inclusion.  I would be very interested to hear the author’s further thoughts on how in fifty years the southern resisters’ vision came to dominate civil rights jurisprudence.

 

Book Club on "The Ghost of Jim Crow" Begins Today

Our book club on "The Ghost of Jim Crow" begins today.  You can look forward to contributions from:

• Willoughby Anderson, Law Clerk for Senior Judge John T. Nixon, United States District Court for the Middle District of Tennessee.
• Alfred Brophy, Reef C. Ivey II Professor of Law at UNC School of Law. 
• Christopher Schmidt, Assistant Professor, Chicago-Kent College of Law.
• Anders Walker, Assistant Professor, Saint Louis University School of Law. 

Please feel free to add in comments of your own.  We hope you enjoy the club.

Book Club on "The Ghost of Jim Crow"

Next week Prawfs will be hosting a book club on Anders Walker's "The Ghost of Jim Crow."  Walker's book examines the legacy of Southern moderates in the post-Brown era and describes how their tactics quietly effectuated continued resistance to the civil rights movement.  The club begins on February 17 and will run through the end of the week.  Contributing to the club will be:

• Willoughby Anderson, Law Clerk for Senior Judge John T. Nixon, United States District Court for the Middle District of Tennessee.  Willoughby received her J.D. from Berkeley and her Ph.D. in History from UNC.
• Alfred Brophy, Reef C. Ivey II Professor of Law at UNC School of Law.  Al is a well-known figure to the blawgosphere; you can read his fascinating posts on Southern history and monuments over at the Faculty Lounge.
• Christopher Schmidt, Assistant Professor, Chicago-Kent College of Law.  Chris is also a Visiting Scholar at the American Bar Foundation.

I'll also be chipping in a few thoughts from the non-historian's perspective, and Anders will join in with his thoughts as well.  Anders is an Assistant Professor at Saint Louis University School of Law.

Here's more about the book from Oxford:

In "Letter from Birmingham Jail," Martin Luther King, Jr. asserted that "the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to 'order' than to justice." To date, our understanding of the Civil Rights era has been largely defined by high-profile public events such as the crisis at Little Rock high school, bus boycotts, and sit-ins-incidents that were met with massive resistance and brutality. The resistance of Southern moderates to racial integration was much less public and highly insidious, with far-reaching effects. The Ghost of Jim Crow draws long-overdue attention to the moderate tactics that stalled the progress of racial equality in the South.

Anders Walker explores how three moderate Southern governors formulated masked resistance in the wake of Brown v. Board of Education. J. P. Coleman in Mississippi, Luther Hodges in North Carolina, and LeRoy Collins in Florida each developed workable, lasting strategies to neutralize black political activists and control white extremists. Believing it possible to reinterpret Brown on their own terms, these governors drew on creative legal solutions that allowed them to perpetuate segregation without overtly defying the federal government. Hodges, Collins, and Coleman instituted seemingly neutral criteria--academic, economic, and moral--in place of racial classifications, thereby laying the foundations for a new way of rationalizing racial inequality. Rather than focus on legal repression, they endorsed cultural pluralism and uplift, claiming that black culture was unique and should be preserved, free from white interference. Meanwhile, they invalidated common law marriages and cut state benefits to unwed mothers, then judged black families for having low moral standards. They expanded the jurisdiction of state police and established agencies like the Mississippi Sovereignty Commission to control unrest. They hired black informants, bribed black leaders, and dramatically expanded the reach of the state into private life. Through these tactics, they hoped to avoid violent Civil Rights protests that would draw negative attention to their states and confirm national opinions of the South as backward. By crafting positive images of their states as tranquil and free of racial unrest, they hoped to attract investment and expand southern economic development. In reward for their work, John F. Kennedy and Lyndon Johnson appointed them to positions in the federal government, defying notions that Republicans were the only party to absorb southern segregationists and stall civil rights.

An eye-opening approach to law and politics in the Civil Rights era, The Ghost of Jim Crow looks beyond extremism to highlight some of the subversive tactics that prolonged racial inequality.

We hope you will join us next week for the club.

Trade Remedies in North America

Following up on my previous post on the U.S. safeguard action regarding Chinese tires, I would like to announce a forthcoming book, entitled Trade Remedies in North America, which will be published by Kluwer Law International and which I am co-authoring with Nick Covelli, David Gantz, and Ihn Ho Uhm.  Nick is Counsel for the Government of Canada; David (as many of you know) is a chaired professor, Director of the International Trade Law Program and Associate Director of the National Law Center for Inter-American Free Trade at the University of Arizona James E. Rogers College of Law; and Ihn is a former senior economist at the Canadian International Trade Tribunal (the Canadian counterpart to the U.S. International Trade Commission).  I myself am founding director of my school's International and Comparative Law Center, although I am currently visiting away for the academic year at West Virginia University College of Law.  The book is slated for publication in early 2010.

The purpose of the book is to provide a comprehensive and comparative treatment of the trade remedy laws (antidumping, countervailing duty, and safeguards laws) of Canada, Mexico and the United States at the bilateral, NAFTA and WTO levels, and of the economic and political underpinnings of these laws.  Also included will be case studies of recent trade remedy actions, namely, Softwood Lumber IV,  U.S. safeguards on Cement from Mexico, and Canadian steel safeguards.  We believe the book is well-positioned to fill a gap in the market, due to its comparative focus and scope of coverage.  If anyone would like more information concerning the book, please let me know.

Textbooks on Kindle

I had a chat with my publisher today, and he raised the issue of offering textbooks on Kindle. There are myriad pros and cons, but I thought I might send a post to see what others think of the idea. Would you permit your work to be offered on Kindle? Should textbooks be available for students to purchase in this format?

Making Information Pay: How the Recession is Changing the Book Business

In the not-too-distant past, academic titles could be published and languish on shelves indefinitely. Now, each title needs to prove its financial value, as well as its scholarly merit. A recent article discusses this trend on the trade side, and even some of the best-known and most established academic publishers are reportedly feeling the pinch. How will this impact legal academic publishing in general and academics in particular? Could this lead to agreements being rescinded? If so, is there any recourse?

Co-authoring Strategies; books, etc.

Here's a question: have any of you tried co-authoring a law review article with someone using Google Docs? Is there some other software (preferably easy and free) to use also? I ask because I wonder what the best technology strategies are for collaboration. With the Privilege or Punish book and its related projects that I've done with Ethan and Jennifer, we basically just used Microsoft Word, redline and email attachments for everything. That strategy was reasonably effective, but it required each of us to take turns with "command" of the particular project for the most part. Not necessarily the best use of time.

Still, my fear with Google Docs is that one can't easily redline or do things with footnotes. Am I missing something--is there a way to achieve Word-type functionality through some kind of sharing mechanism?

Btw, speaking of intellectual collaborations and other distractions from grading, I thought I'd draw your attention to a cool book that literally just landed across my desk and that I look forward to reading over the summer. It's a festschrift for Morton Horwitz published by Harvard Law School (I've not seen their imprint before) but through Harvard University Press. It's called: Transformation in American Legal History (ed. by Daniel Hamilton & Al Brophy), and it's available here. Here's part of the description:

In this book, Horwitz’s students re-examine legal history from America’s colonial era to the late twentieth century. They ask classic Horwitzian questions, of how legal doctrine, thought, and practice are shaped by the interests of the powerful, as well as by the ideas of lawyers, politicians, and others. The essays address current questions in legal history, from colonial legal practice to questions of empire, civil rights, and constitutionalism in a democracy. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.

In addition to this book, HUP has a bunch of other new books that look very promising as sources of distractions or objects of focus over the summer. If you've read any of them already, feel free to weigh in with thoughts in the comments.

Abramson, Jeffrey--Minerva's Owl: The Tradition of Western Political Thought (cloth)
Garsten, Bryan--Saving Persuasion: A Defense of Rhetoric and Judgment (paper)
Grafton, Anthony--Worlds Made by Words: Scholarship and Community in the Modern West (cloth)
Lamont, Michèle--How Professors Think: Inside the Curious World of Academic Judgment (cloth) (I'm about 2/3ds of the way through this interesting study and hope to share some reactions later this summer)

Mann, Bruce H.--Republic of Debtors: Bankruptcy in the Age of American Independence (paper)
Posner, Richard A.--A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (cloth)
Powe, Lucas A. , Jr.--The Supreme Court and the American Elite, 1789-2008 (cloth)
Schauer, Frederick--Thinking Like a Lawyer: A New Introduction to Legal Reasoning (cloth)

Shachar, Ayelet--The Birthright Lottery: Citizenship and Global Inequality (cloth)
 

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

A Casual Casebook: The Canon of American Common Law

This summer I am planning to put together a casebook that is for leisurely reading, rather than a law-school course. My tentative title is "The Canon of American Common Law." 

It is an idea of mine that started with the thought that it would be exciting to give a special award to the first-year law student with the highest combined grade-point average in the three common law courses: Contracts, Property, and Torts. A good name would be the Holmes Award. But what would be a suitable prize? A perfect token, I thought, would be a book of the classic common-law cases. I think such a book would also be nice to have available for casual students of the law – people who would like to do some exploring in the law – but who are not looking for three years of law school.

Below is my very-rough draft table of contents, along with a list of “on the bubble” cases that are deserving, but that I might leave out to keep the size of the book manageable. I would be very grateful for your comments. Do any of the cases fail to qualify as classics? Am I grievously leaving something out? Am I close to closing in on a canonical list? Or am I way off?

Contracts:

Wood v. Boynton

Webb v. McGowin

Raffles v. Wichelhaus (The Peerless Case)

Hamer v. Sidway

Lucy v. Zehmer

Wood v. Lucy, Lady Duff-Gordon

Hawkins v. McGee

Peevyhouse v. Garland Coal & Mining Co.

Hadley v. Baxendale

Property:

Ghen v. Rich

Pierson v. Post

Brown v. Voss

Hannah v. Peel

Moore v. Regents of the University of California

Vanna White v. Samsung Electronics America, Inc.

State v. Shack

Boomer v. Atlantic Cement Co.

Torts:

Vosburg v. Putney

Garratt v. Dailey

Fisher v. Carrousel Motor Hotel, Inc.

Ploof v. Putnam

Katko v. Briney

Vincent v. Lake Erie Transportation Co. 

Byrne v. Boadle

Palsgraf v. Long Island R.R. Co.

Summers v. Tice

Tarasoff v. Regents of University of California

U.S. v. Carroll Towing Co.

Vaughan v. Menlove

Rylands v. Fletcher

Escola v. Coca-Cola Bottling Co. of Fresno

On the bubble:

Dougherty v. Salt

Taylor v. Caldwell

Brown v. Kendall

I de S et ux. v. W de S

Indiana Harbor Belt. R. Co. v. American Cyanamid Co.

Lumley v. Gye

MacPherson v. Buick Motor Co.

Stone v. Bolton

You’ll notice there are a few English cases in the mix, but they are ones that, I think, are nonetheless, classics of American common law, generally because of their entrenchment in the American 1L curriculum.

Also, you’ll notice I have not included any U.S. Supreme Court cases. That’s another casual-casebook project – but a worthy one. I plan to take that up separately.

University Bookstores and the Intellectual Life of Campus

My school, the University of North Dakota, recently declined to renew its contract with Barnes & Noble to run the campus bookstore. Instead, they’ve signed up with Follett. So we are in the midst of transferring control of the bookstore from one megalithic operator to another. This seems to me a real shame. I have nothing against B&N or Follett. I am sure they are generally very good at meeting contractual expectations while maintaining a profitable and tidy operation. But there are few things so wonderful as a bookstore that is neither tidy nor profitable.

As an undergrad at the University of Texas at Austin, I must have spent, cumulatively, at least a solid week browsing aimlessly in the cluttered aisles of our Co-op Society bookstore. They had, as one guy I talked to remembered, “every book in the world.” I recall once looking through a whole table of scholarly books on theoretical mathematics. Not that I understood any of it. But I felt very academic just leafing through. And it wasn’t just the books. There’s something inspiring about spectrum-ordered rows of art supplies. And I loved the fact that if I ever needed to pick up a scalpel, a stethoscope, or a box of 25 microscope slides, the bookstore was there for me.

Okay – if I wax any more tweedy, I’m going to make some one nauseous. I get that. But hey, I’m a law professor. I like the smell of books and coffee.

The last time I was down in Austin the bookstore had pared down to a neat little operation, renting out most of their A-list retail space to Barnes and Noble. What a bore. I hear Barnes and Noble has since left, but the old every-book-in-the-world Co-op hasn’t returned.

Watching UND switch from one mega-retailer to another, I feel like we are missing the chance to extend the university experience with a truly great bookstore.

I understand the new bookstore managers are interested in learning from the law faculty what books they ought to carry for law students. I would like to tell them to keep expanding their selection until at least half of the shelf inventory experiences no year-to-year turnover.

Hmmm. I don’t think they are going to go for that.

Should Sara Jane Olson Get to Leave California and Serve Parole in MN?

In today's NYT, noted author Caitlin Flanagan pens an op-ed on the intricacies of parole decisions. Flanagan, you may recall, is the frequently interesting and controversial social critic usually perched at the Atlantic, and formerly of the New Yorker.  Discussing the decision to permit Sara Jane Olson to serve her year of parole by returning to her well-off family and manse in Minnesota, Flanagan argues that it's a mistake for the authorities to give Olson this privilege while so many other Californians serve their parole in CA.  To Flanagan, this decision reeks of the very class and racial injustice that inspired Olson's earlier turn in life as a fetus-stomping, mother-killing, police car-bombing radical member of the Symbionese Liberation Army, which is famous, in part, for its kidnapping of Patty Hearst. (Flanagan has earlier tilled some of this SLA ground here.)

The argument Flanagan makes, however, is elliptic, and, in the end, unpersuasive. She states:

[Olson] served seven years and was released last week, and that’s when her long story came once again to the national fore: her lawyers persuaded California officials to let her serve parole back home in Minnesota. The legal maneuvering by which this bit of comfort has been extended to her — and by which it is now being challenged — is interesting. Because studies have proved that recidivism is lower in those cases in which a prisoner is released to his family, lawyers sometimes argue that the location of parole should be moved if such support is available elsewhere. But it’s a hard case to argue. Only about 1 percent of those currently serving parole ordered by the California Department of Corrections are doing so out of state. Clearly, factors of race and class have come into play. As Celeste Fremon, an expert on gangs and criminal justice, observed on her blog Witness LA: “Over and over again I see young men of color sent away for decades for crimes of far lesser magnitude in which no one was injured. And when they get out on parole, they usually can’t even get their paroles transferred to Riverside — if that’s what they need to be out of harm’s way, get a job and be with their families — much less Minnesota.”

The italicized part of the op-ed is what I want to focus on. Flanagan doesn't give us any basis to think that there's something pernicious here because it could be that the 1 percent of CA's parolees who are out of state are the only people who asked to be serving parole out of state. We would need to know, in other words, how many people are asking to serve their parole out of state to know whether the stat Flanagan cites is of any interest.  

Furthermore, we would need to know what other factors play into the decision by parole boards to let released offenders serve parole out of state.  A number of states don't use parole anymore, so it might be that some people's requests are denied because their sought after state doesn't qualify to satisfy CA's parole requirements. Whether "factors of race and class" are "clearly" in play is just speculative as to this point regarding Olson.  

And for what it’s worth, the point made next in Flanagan’s piece about young men of color goes to the possibility of a separate injustice related to intra-state discrimination. But there's also a potentially race-neutral explanation there. If a gang member's family lives in the same community as the gang with which the offender associated, then the possibility of increased recidivism might offset countervailing benefits associated with consideration of release to the area where the offender’s family lives.  Applied to Olson, it’s a bit implausible to suggest that her return to Minnesota and her family provides the same criminogenic temptation—it’s not as if St Paul MN is where her buddies from the SLA live.

I’m not saying that Olson should have definitely been released to Minnesota. (Some members of the MN government don't want her back, and it's not clear CA should be able to externalize the costs of monitoring parolees onto other states.)  But the case Flanagan presents –with its insinuations of Olson's hypocrisy and CA's  systemic race and class bias in parole decisionmaking—in favor of having  Olson serve parole in CA hasn’t persuaded me, yet. 

I should point out that this discussion raises some similar issues to ones Ethan, Jennifer Collins & I tackle in our book,Privilege or Punish: Criminal Justice and the Challenge of Family Ties, about to come out any day now.  Notwithstanding our general "anti-family" posture in other places in the criminal justice system, we make the case for considering care-giving relationships in the context of prisoner re-entry (but not limiting the analysis to "family status"  strictly speaking).  We also briefly discuss an interesting study by Bedard and Helland showing enhanced deterrent effects when prisons are located far away from an offender's family.  The study, however, does not address the issue Flanagan addresses: namely, whether release to one's family is conducive to reducing recidivism.  

Here's the Bedard and Helland citation. More discussion of that study appears on page 189 of the book in case you're interested.

Kelly Bedard & Eric Helland, Th e Location of Women’s Prisons and the Deterrence Eff ect of “Harder” Time, 24 Int’l Rev. L. & Econ. 147–49 (2004). Notably, Bedard and Helland are able to show that the “harder” time actually serves a deterrent effect; so what may look like a “tax” on families may in the end be an indirect way to keep the family together. Id. at 148–49. They conclude: “[t]he evidence suggests that an increase in average prison distance leads to a decrease in crime. A 40-mile increase in the average distance to a female penitentiary reduces female violent crime, property crime and murder rates by 6.9, 2.3 and 13.3%, respectively.” Id. at 165.

Sobering Vacation Reads 1: Eric Schlosser's Reefer Madness

Greetings, Everyone; it's good to be back for yet another blogging stint.

I write this as I recover from my so-called vacation, which included being stranded in American and Canadian snowstorms for the better part of a week, missing connections, napping at airports and at motels reminiscent of a Coen Brothers movie, and sitting, in hostage-like setting, inside airplanes for hours with nothing to eat or drink as they de-ice. Life in San Francisco has not prepared me for such woes! But now, back in what Eddie Izzard refers to as "The Citeh", I'm happy to report that I had good books for company throughout these trying times.

One such book was Eric Schlosser's Reefer Madness: Sex, Drugs and Cheap Labor in the American Black Market (hardcover, 2003; paperback, 2004). Schlosser, author of the much better known Fast Food Nation, tackles three issues in this book: the growing and cultivation of marijuana, undocumented laborers in the Californian strawberry-picking industry, and an economic history of pornography. The book, while not unconcenrned with politics and morality, is mostly a critical examination of free market principles as applied to underground economies.

Schlosser starts with marijuana growers, providing a colorful description of what is, apparently, an inland American industry of staggering proportions. His interviews with growers, and with federal agents who spend their time tracking down vast (but well hidden) marijuana fields and in-home operations with heating lamps, expose a cat-and-mouse race culminating in prosecutions, and sometimes shockingly severe prison sentences.

The second part of the book reveals the practices of strawberry farmers, who acquire "partners" through the practice of sharecropping. Former pickers, invariably from Mexico, become "farmers" who come to find themselves deeply in debt, limited in every aspect of picking and selling their product, and facing all the legal risks transferred to them by the growers. Bringing into the mix abundant information about the special problems posed by the strawberry industry, but not forgetting the broader picture, Schlosser describes the interdependency of Californian and Mexican economies, and the variety of unsatisfactory solutions provided by policymakers, banks, and growers, to the problem of undocumented immigrants.

But Schlosser is probably at his best when he describes the rise, fall, and (brief) return of pornography king Reuben Sturman, who, as it turns out, ruled the American "empire of the obscene" for decades. It shows how dedicated tax investigators finally brought his empire to ground, ignoring the morality crusades fought by decades of FBI agents and state police forces, and focusing on tax evasion techniques. Schlosser's sophisticated account, detached and at the same time sympathetic to both sides, is a clever analysis of the emergence and workings of an industry which faces similar economic, moral and social issues as many legitimate enterprises do.

While the separate three essays are all masterful, Schlosser could have done a better job weaving them together in the book's final chapters. His introduction takes on Adam Smith's free market theories; however, he does not seem to advocate for intense regulation of illegal, or semi-legal, industries, but rather for "a few laws, strictly enforced". One theme that ties the first and third chapters together is the impact of criminalization on the prevalence and success of a market. Based on a variety of sources, and on lessons from other countries (citing, among many other sources, MacCoun and Reuter's excellent Drug War Heresies), Schlosser argues (perhaps not clearly enough) that decriminalization might lead to a brief rise in the popularity of drugs and/or porn, followed by a steady decline in their consumption. The second chapter poses a more complicated problem, to which Schlosser does not offer an express antidote. It does, however, draw attention to the impact of unrestrained markets, focusing on efficiency and profit as their sole dependent variable, on humane labor relations.

I enjoyed and appreciated Schlosser's discussion of criminalization of drugs and porn, which reminded me a lot of Troy Duster's classical work The Legislation of Morality, and of Elizabeth Comack's interesting discussuion of narcotics law in Canada. I'm sure, though, that some readers are much better versed than me in labor policy and might have some interesting take on the second part. In any case, if any of you still has a holiday journey ahead of them, you might consider taking this book with you. Me, I'm done with traveling for this winter; and, as Faith Petric says, "for me, the charm of traveling is fading, I confess."

Wrapping Up "The Big Squeeze" Book Club

Many thanks to Orly Lobel, Melissa Hart, Noah Zatz, and especially Steven Greenhouse for their terrific participation in our book club for "The Big Squeeze."  We touched on a lot of facets of the book, and we were fortunate to get such thoughtful and considered responses from the author.  I hope the club will be a resource for folks in the future who are reading the book for class or for enlightenment.

Here's a wrap-up of all the posts for the club:

• Introductory post
• Zatz: Public Responsibility for Stopping the Big Squeeze
• Bodie: Causes of the "Big Squeeze"
• Hart: "The high cost of low prices"
• Lobel: Everyone Squeezed; Everybody Squeezes?
• Greenhouse: Not Just One Big Squeeze, But Many Squeezes
• Zatz: Responsibility for the Big Squeeze: Employers, Consumers, Citizens?
• Greenhouse: Addressing Wage Theft and Other Illegalities
• Bodie: "The Big Squeeze" and the Uncorporation
• Greenhouse: Does Litigation Vindicate Workers' Rights?
• Greenhouse: The Time Squeeze for Lawyers and Others
• Greenhouse: Shareholder Primacy and How It Squeezes America's Workers
• Lobel: Squeezing Every Penny Out of Regulation

And if you'd like to purchase the book, you can get it at :

• Amazon
• Barnes & Noble
• Powell's

Thanks again to Steven Greenhouse and all our commenters for a great club.