ReligiousLeftLaw.com

Do Religious Organizations Receiving Federal Funds Have a Right to Use a Religious Test in Hiring?

Last week 130 religious, education, civil rights, labor, LGBT, women's, and health organizations wrote a letter to the President to complain about a 2007 Office of Legal Counsel opinion (see here) that a religious organization (World Vision, Inc.) providing secular services to guests on a non-discriminatory basis with the assistance of Federal funds had the right under the Religious Freedom Restoration Act to restrict its hiring to those who share the religion of the religious organization. See here. The 130 complained that the "broad" ruling constituted a "blanket override of a statutory non-discrimination provision," and argued that the government's interest in preventing religious discrimination is compelling. They worry that the ruling might support discrimination against LGBT workers or could be used to deny health services to undocumented children.

 

To be sure, preventing discrimination on the basis of religion should ordinarily be considered a compelling government interest. If the Sierra Club discriminates on the basis of religion in its employment policies, the discrimination is indefensible. On the other hand, just as the Sierra Club can restrict its staff hiring to those who agree with its ideology, so a religious organization can reasonably restrict its hiring to those who agree with its ideology. The prohibition against religious discrimination is directed against the use of irrelevant and harmful criteria in hiring. The interest in preventing religious organizations from hiring in a way that promotes a religious community is not compelling.

The claim that the Counsel opinion was a blanket override and unreasonably broad is simply mistaken. The opinion carefully analyzed the individual context in which an exemption was sought. Counsel recognized that religion-based hiring could be a factor in determining that federal funds were inadmissibly being used for evangelization or religious training, but it found that the aid being dispensed to the poor was non-religious and not accompanied by any efforts to evangelize. Counsel also observed that the hiring policy was of long-standing and not newly developed in reaction to a form of religious prejudice. Moreover, Counsel found it significant that the hiring policy focused on employing people of the same faith rather than selectively excluding people of different faiths.

Of course, church-state concerns are implicated when government uses religious organizations to dispense aid. But if government tells a religious organization that it will give it aid money to help the poor, if, but only if, it becomes less wedded to its faith in its hiring practices, it is using a carrot to interfere with religious autonomy. And restricting aid in support of the poor to non-religious organizations would be foolish. The federal government has helped the poor for decades by providing quite substantial funds to Catholic Charities and other religious organizations, and the political obstacles to helping the poor are less formidable when religious organizations are involved in the endeavor.

I am not claiming that the autonomy or religious organizations should be absolute. The federal government need not provide funds to religious organizations that even for religious reasons discriminate on the basis of race, sex, sexual orientation, or disability with respect to employees or that refuse to make their services open to the public served by the federal program. And the federal government should have no role in promoting evangelizing. That said, I see nothing in Counsel's ruling supporting the view that preventing discrimination against LGBT employees is anything other than compelling. Nor can it be taken to support the morally twisted view that health services could be denied to undocumented children on religious grounds.

In the end, I think the letter of the 130 organizations mischaracterizes the ruling and reasoning of the memorandum issued by the Office of Legal Counsel. At the same time, I cannot subscribe to Notre Dame Law Professor Rick Garnett's observation about the letter of the 130 organizations, "What's really going on here, of course, is troubling . . . . In the long tradition of groups like Americans United, the signatories to this letter oppose Catholic schools and other institutions -- they object to the content of what those schools and other institutions teach and do -- and so they are hoping to roll back the principle underlying the Supreme Court's acceptance of school-voucher programs." See here.

 

But the letter in question at no point refers to religious instruction, worship, or proselytizing. The Opinion does refer to all three, but only to stress that World Vision, Inc. was not using federal funds for any of these purposes. The complaint of the letter was discrimination in an organization using federal funds, without any complaint about what the funds were used for. If this letter was calculated to unearth school vouchers, it was utterly inept. Moreover, given the current composition of the Court, the majority is unlikely to engage in the kind of rich analysis that ought to be triggered by the issue of governmental funds to support religious schools. Professor Garnett might be right that most of the organizations that signed the letter oppose school vouchers. But that is not what is "really going on here," and, for better or worse, he need not be troubled.

So this is a case in my view in which 103 organizations criticize an Office of Legal Counsel opinion for positions it does not take and a supporter of the opinion criticizes the organizations for a strategy that is not to be found in their letter and was not at issue in the case.

It may be raining on some parades. But word to the wise: the sky is not falling.

Cross-posted on the Huffington Post

 

What Pope Francis Must Say to Donald Trump

There is a rising tide of nativism washing over the United States at this particular moment.  We have seen such waves recurrently in our history.  In the 1840s, it was the Know-Nothings, who hated Catholics and opposed Irish immigration and were even responsible for riots and other acts of violence.

In the 1920's, it was the turn of the Ku Klux Klan.  Even while these hooded terrorists attacked African-Americans in the south, they also campaigned against immigration on racial and religious grounds.  The eastern and southern Europeans then entering the country, they maintained, were impossible to assimilate.  They were Catholic, they were Jewish, and most of all they were "un-American."  These campaigns succeeded in largely shutting down immigration to the United States for forty years, from the 1920's to the middle 1960's.

Today, we are witnessing what is shaping up to be a sorry rerun of this awful history.  Anti-immigrant sentiment has been on the rise in political circles for some time.  It was on vivid display in Virginia in last year's Republican congressional primary, when the upstart David Brat unseated Eric Cantor, one of the most powerful men in Congress, on the strength of a thinly-disguised nativist appeal.

The nativism on display today can no longer even be described as "thinly disguised."  It is open, it is blatant, and it is foul.  Donald Trump, of course, remains the biggest offender.  He has spoken in the kind of blunt, racist language that even the defenders of segregation avoided in the 1960's.  When talking about Mexican migrants, he has used language like "rapists," and "criminals," to brand and stereotype and demean an entire group of people.  He routinely uses the kind of vulgarities that would have made even George Wallace blush.

Trump's gutter vulgarity has drawn the Republican field with him.  Ben Carson, who was once a world-class neurosurgeon, has more recently called upon the Department of Defense to use drone aircraft to attack "caves" that immigrants use in their passage across the border.  And Carson is supported by the so-called Christian right?

And then there is Jeb Bush.  Has there ever been a more inept pretender to a throne since Aethelred the Unready?  When criticized for his continued use of the term "anchor babies, he explained that he really meant to apply it to "Asian people," not Hispanics.  Good God, what a consummate disaster!

Pope Francis is coming to the United States in just a few weeks.  And I devoutly believe that the most urgent task confronting the Pope on his visit is to call the American people away from the poisonous swamp of nativism.

Pope Francis is ideally suited for this task.  He has pledged his pontificate to the defense of the marginalized and has made a special concern of his the plight of immigrant peoples.  In July, 2013, early in his pontificate, he traveled to the island of Lampedusa, in the Mediterranean, the scene of so many preventable human tragedies.  "Immigrants dying at sea, in boats which were vehicles of hope and became vehicles of death."  The Pope fairly wept at the dimensions of the horror he confronted.

Pope Francis' trip to Lampedusa was meant to remind Christians of the common origin and destiny of all of humankind.  "Cain, where is your brother?"  God asked.  Cain replied, disingenuously, that he was not his brother's keeper.  But, Pope Francis insisted, we are one another's keepers, in the best sense of that term.  We have obligations, transcendent obligations, to one another that are not contained or confined by the mere accidents of political boundaries.

In his speech to the European Parliament, in November, 2014, Pope Francis clothed this scriptural appeal in more philosophical dress.  Human dignity is not an individualistic but a communal value.  We are not isolated beings, without connections or duties to others.  Pope Francis relied on this premise to develop a strong argument on behalf of the common good.  And an aspect of the common good, he asserted, is a humane response to immigration.

"The men and women" who arrive "daily on the shores of Europe" require "acceptance and assistance."  Christianity, of course, has a long and deep commitment to a welcoming hospitality, and Pope Francis appealed to this tradition to summon his audience to action.  But he also urged them to solve the root causes of the immigration crisis -- the poverty and the war that has displaced so many people from their homes and driven them to risk their very beings in a dangerous passage.

I encourage Pope Francis to address the language of coarse hatred that is increasingly becoming de rigeur in American politics.  No doubt he is far too sophisticated to call out Donald Trump by name.  But Trumpism is an ominous trend that must be denounced.  More than anything else, Pope Francis must condemn the rising hatred that he represents and espouses.

Cross-posted: http://www.huffingtonpost.com/charles-j-reid-jr/what-pope-francis-must-sa_b_8051682.html 

The Brotherhood of Sleeping Car Porters (BSCP), 1925-1978

“We are creatures of history, for every historical epoch has its roots in a preceding epoch. The black militants of today are standing upon the shoulders of the New Negro radicals of my day, the twenties, thirties, and forties. We stood upon the shoulders of the civil rights fighters of the Reconstruction era, and they stood upon the shoulders of the black abolitionists. These are the interconnections of history, and they play their role in the course of development.”—A. Philip Randolph

On this day in August in 1925, the Brotherhood of Sleeping Car Porters (BSCP) came into existence when 500 porters met in Harlem, renewing their union organizing efforts. “During this meeting, they secretly launched their campaign, choosing [A. Philip] Randolph, not employed by Pullman and thus beyond retaliation, to lead the effort. The union chose a motto to sum up their resentment over the working conditions: ‘Fight or Be Slaves.’”

The following is from the entry, “Brotherhood of Sleeping Car Porters (1925–1978),” written by Daren Salter for BlackPast.org (‘The Online Reference Guide to African American History’):  

“The Brotherhood of Sleeping Car Porters (BSCP) was a labor union organized by African American employees of the Pullman Company in August 1925 and led by A. Philip Randolph and Milton P. Webster. Over the next twelve years, the BSCP fought a three-front battle against the Pullman Company, the American Federation of Labor, and the anti-union, pro-Pullman sentiments of the majority of the black community. Largely successful on each front, the BCSP is a significant institution in both the labor and civil rights history of the twentieth century United States.

The BSCP faced long odds in 1925. Despite its charismatic leadership, the union attracted only a small number of rank and file workers and at no point before 1937 did it enroll a majority of porters. Most black leaders outside the organization distrusted labor unions and, moreover, viewed George Pullman, whose company provided jobs, relatively high incomes, and a modicum of services to black employees, as an important ally of the black community, a reputation Pullman assiduously exploited in his effort to undermine the nascent union. Meanwhile, while the AFL granted federal-local status to individual BSCP locals, it refused to charter the all-black union as a full-fledged international. [….]

Transforming his newspaper, the Messenger, into a propaganda vehicle for the BSCP and tirelessly campaigning on behalf of the union, over time Randolph convinced black leaders, clergymen, and newspaper editors that Pullman’s paternalism masked what was in fact a servile position for blacks within the company and a subtle recapitulation of the master-slave relationship. In the process, the BSCP became both a vehicle and a symbol of black advancement and, according to one historian, helped facilitate the ‘rise of protest politics in black America.’

On the labor front, the BSCP survived an aborted strike in 1928 and a precipitous drop in membership due to company opposition and the hardship of the Great Depression. A favorable turn in the political climate brought about by the New Deal, combined with the persistence of union leaders and members finally forced the company to recognize the BSCP in 1935. The AFL granted the BSCP an international charter that same year and, after protracted negotiations, the union won its first contract in 1937. Randolph used the BSCP and his own position in the AFL-CIO leadership as a wedge for breaking down racial segregation in the American labor movement. The BSCP also remained a source of inspiration and activism in African American communities, providing a training ground for future civil rights leaders like C.L. Dellums, E.D. Nixon, and of course Randolph himself.” [….]

Further Reading:

• Allen, Robert. The Brotherhood of Sleeping Car Porters: C. L. Dellums and the Fight for Fair Treatment and Civil Rights. Paradigm Publishers, 2015.
• Anderson, Jervis. A. Philip Randolph: A Biographical Portrait. University of California Press edition, 1986 (Harcourt Brace, 1973).
• Arneson, Eric. Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality. Harvard University Press, 2000.
• Bates, Beth Tompkins. Pullman Porters and the Rise of Protest Politics in Black America, 1925–1945. University of North Carolina Press, 2001.
• Berman, Edward. “The Pullman Porters Win,” The Nation, August 21, 1935. http://newdeal.feri.org/nation/na35217.htm
• Bynum, Cornelius L. A. Philip Randolph and the Struggle for Civil Rights. University of Illinois Press, 2010.
• Harris, William H. Keeping the Faith: A. Philip Randolph, Milton P. Webster, and the Brotherhood of Sleeping Car Porters, 1925-1937. University of Illinois Press, 1977.
• Hughes, Lyn. An Anthology of Respect: The Pullman Porters National Historic Registry. Outskirts Press, 2008.
• Pfeffer, Paula F. A. Philip Randolph, Pioneer of the Civil Rights Movement. Louisiana State University Press, 1990.
• Santino, Jack. Miles of Smiles, Years of Struggle: Stories of Black Pullman Porters. University of Illinois Press, 1989.
• Taylor, Cynthia. A. Philip Randolph: The Religious Journey of an African American Labor Leader. New York University Press, 2006.
• Tye, Larry. Rising from the Rails: Pullman Porters and the Making of the Black Middle Class. Macmillan, 2005.

The Construction of Sexual Disorder by Sullied Science and Big Pharma

Pablo Picasso, Trois femmes, 1908

“The real problem with ‘pink Viagra’”

By Emily Nagoski, Los Angeles Times (August 23, 2015)

“The drug has many names: flibanserin, Addyi, Ectris, Girosa or, colloquially, ‘pink Viagra.’ Whatever you want to call the long-in-the-making libido pill for women, it recently gained FDA approval despite ‘serious, serious safety concerns’ and benefits that are ‘modest, maybe less than modest.’ But as a science-driven sex educator, I am less troubled by the risk of low blood pressure and fainting than I am by the drug maker’s reinforcement of an outdated, scientifically invalid model of sexual desire. [….]

The FDA’s analysis of the data showed that only about 10% of the research participants taking flibanserin experienced ‘at least minimal improvement,’ while the remaining 90% experienced nothing at all. This is a drug with such potentially serious side effects that the FDA is requiring special training and certification before providers can prescribe it.

And the ‘disorder’ it treats (or, 90% of the time, fails to treat) isn’t a disorder at all but a normal, healthy variation in human sexual response. The pharmaceutical industry has millions — billions? — of dollars riding on all of us, including our doctors, ignoring 21st century science and reverting to a model of sexual desire that made really good sense in 1977. I think women deserve better.”

The entire article in the Los Angeles Times is here.

See too this earlier editorial by Ellen Laan and Leonore Tiefer, also from the Times (no, not that one): “The sham drug idea of the year: ‘pink Viagra’”

and, from The Boston Review, “‘Female Viagra’ Is No Feminist Triumph.”

Further reading: Biological Psychiatry, Sullied Psychology, & Pharmaceutical Reason: A Basic Bibliography.

Toward making sense of the structural constraints of health & illness in the neoliberal variation of advanced (or late-) capitalist society … (3)

“…[E]very human being experiences different types and durations of physical and mental impairments, or different periods of health and illness , and lives for varying lengths of time due to the combined interactions of her internal biological endowments and needs, behaviours, external physical environment and social conditions. [….]

The centrality of human health and longevity to social justice is so patently obvious to some people that they simply take it as a starting point. This is particularly apparent in the remarkable history of physicians becoming social and political reformers, and even armed revolutionaries because of their understanding of manifest injustice in such aspects as the causes, consequences, persistence through generations, or distribution patterns of preventable ill-health and premature mortality in a population. But such an understanding is not limited only to physicians or those who work in the front lines of healthcare and public health. For example, Amartya Sen, the economist and philosopher, begins a lecture by stating, ‘In any discussion of social equity and justice, illness and health must figure as a major concern. I take that as my point of departure.’ He then continues, ‘…and begin by noting that health equity cannot but be a central feature of the justice of social arrangement in general.’ [….]

... John Rawls, perhaps the most renowned modern philosopher of social justice, has seemingly put forward the opposite position. Rawls believed that human health is a ‘natural good’ and subject to random luck over the life course; he sees health not as something significantly or directly socially produced, so it does not even come within the scope of social justice, let alone is central to it.”—Sridhar Venkatapuram, in the Introduction to his impressive and urgent book, Health Justice: An Argument from the Capabilities Approach (Polity Press, 2011)

Venkatapuram goes on to note that, in his later writings, Rawls at least “came to agree with Norman Daniels that justice produces entitlements to healthcare [emphasis added] in order to keep people above a minimum health threshold.” Of course Daniels himself progressively extends the Rawlsian conception of “justice as fairness” in two books: Just Health Care (Cambridge University Press, 1985), and Just Health: Meeting Health Needs Fairly (Cambridge University Press, 2008).

We will continue to look at Venkatapuram’s book in forthcoming posts in this series.

Governor Walker, Academic Freedom, and the Wall Street Journal

Scott Walker is well known for his bulldog-like attacks on constituencies not devoted to Republicans. So he has attacked public and private unions. And his most recent budget would slash “$250 million from the University of Wisconsin, one of the country’s great public institutions of higher education, and [would ensure] that most K-12 school districts will get less funding than they did last year.” See Washington Post. Most important for my purposes Mr. Walker sought to remove tenure protection for professors at the University of Wisconsin. As the Post reports, this move would seriously harm the school’s ability to attract and retain talented faculty.

Of course, this has attracted criticism, but coming to his rescue in the editorial pages of the Wall Street Journal (where else) come John O. McGinnis and Max Schanzenbach (see Wall Street Journal (subscription may be required)) to defend the proposal as a wonderful cost savings device (those Republicans they just can’t get enough savings unless they are running up deficits fighting wars). They argue that dispensing with the older professors and hiring the younger will save costs and increase productivity. I resist the notion that saving costs is desirable when the ability to attract talented faculty is compromised. Moreover, the focus on “productivity” strikes me as narrow minded. That focus encourages faculty to publish a high quantity of articles many of them repetitious in character. Cicero, however, was on the right track when he remarked that we should weigh evidence, not count it. If the claim is that the work of younger faculty is of higher quality than more experienced faculty, I would expect an evidentiary showing. Instead, McGinnis and Schanzenbach rely on casual uninformed ageism to support their assertion. No evidence is brought to bear. Of course, memory declines as faculty get older, but a study of the faculty at Berkeley shows that older faculty preserve their higher order abilities to plan, organize, and problem solve. See Berkeley study.

McGinnis and Schanzenbach claim that firing the older professors will permit the universities to reallocate resources to needed areas like computer science. Once again, they offer no evidence to support the view that universities have been unable to hire computer scientists. This argument appears to be a make weight.

After wasting almost three columns of words, McGinnis and Schanzenbach come to the real issue. University tenure was provided to guarantee academic freedom. It has been a fixture of university education for more than a century. But McGinnis and Schanzenbach praise Walker for making the recent discovery that the need to protect academic freedom through tenure is without merit. Really? They claim that strong Supreme Court precedents protect professors from political discrimination. Actually, the status of constitutional protection for academic freedom has been cast in doubt by the Supreme Court at least since the case of Garcetti v. Cebellos (2006), and the cases prior to Garcetti were not nearly as strong as McGinnis and Schanzenbach suggest. Moreover, whatever protections the Constitution might provide apply only to state universities. But McGinnis and Schanzenbach contend that “Even with tenure systems in place, faculties at private universities can engage in viewpoint discrimination at the hiring and promotion stages with impunity. Given the monolithic political composition of many fields and departments, viewpoint discrimination is already a substantial danger.”

The latter contention implicitly concedes that the tenure system by guaranteeing academic freedom protects professors from termination at private schools. The claim that private universities engage with impunity by discriminating at the hiring stage or at the promotion stage (it is not clear that academic freedom is inapplicable at the promotion stage) is undefended. But it is part of a prevailing conservative deeply seated belief system. The overriding belief is that the academy discriminates against conservatives. I do not doubt the existence of such discrimination in some quarters, but the concern is overinclusive and undeinclusive. It is overinclusive because it borders on paranoia to suppose that discrimination against conservatives pervades the multitude of disciplines on campus. It is underinclusive in that it accents one form of political discrimination to the exclusion of others, and it emphasizes political discrimination to the exclusion of other forms of discrimination.

Equally important, the concern with discrimination against conservatives apparently blinds McGinnis and Schanzenbach to the reality that the protections of tenure are not exclusively or even primarily political. Tenure affords established scholars the freedom to challenge disciplinary customs, habits, and traditions. It gives them the freedom to transgress disciplinary boundaries and engage in interdisciplinary work. It gives them the time to pursue long term projects without worrying that a committee or department chair is using a whip to demand “productivity.”

In fairness, McGinnis and Schanzenbach do not want to dispense with protections for professors altogether. They propose long term contracts. But their proposal is fuzzy: “We are not sure what the optimal contract length is, and the correct period may well vary according to field.” They also suggest that “Contracts should spell out dismissal standards for academic and sexual misconduct, and they can also require minimum teaching and productivity standards. Contracts could require periodic review wherein performance would be investigated and such standards enforced.” Before signing on, I would like to know what those productivity standards might be and I would also like to know what protections faculty members might have before these performance reviews imperil the very academic freedom McGinnis and Schanzenbach maintain would not be compromised. In short, I am unwilling to accept the authors’ unsupported assurance that the need to protect tenure through academic freedom is without merit.

Come to think of it, if Walker thinks with McGinnis and Schanzenbach that academics are for the most part worn out by presumably age 65, I am left to wonder what he thinks about aging judges on the Supreme Court (McGinnis, for one, favors judicial term limits). Specifically, what does Walker think of Justices Scalia (79), Kennedy (79), Thomas (67), and Alito (65)? I am guessing that many of their long term contracts would already have expired (long ago in the case of Scalia and Kennedy). I would also guess the ‘performance reviews’ of Justices Ginsburg (83) and Breyer (78) would not go so well in his hands or the hands of other conservatives, but I doubt those reviews would be free of point-of-view-discrimination. And what is one to make of the fact that Justices are being appointed in their on-the-way-to-wearing-out 50’s rather than their more productive and energetic 30’s?

McGinnis and Schanzenbach maintain that Scott Walker is doing the educational establishment a favor by fighting for the elimination of tenure. I wonder if they think he was doing unions a favor when he attacked them. It seems to me that when a candidate for President attacks a vital part of university education; it would be better to admit he has declared war instead of suggesting that we do not know Santa Claus when we see him.

Toward making sense of the structural constraints of health & illness in the neoliberal variation of advanced (or late-) capitalist society … (2)

“We have known for over 150 years than an individual’s chances of life and death are patterned according to social class: the more affluent and better educated people are, the longer and healthier their lives. These patterns persist even when there is universal access to health care—a finding quite surprising to those who think financial access to medical services is the primary determinant of health status. In fact, recent cross-national evidence suggests that the greater the degree of socio-economic inequality that exists within a society, the steeper the gradient of health inequality. As a result, middle-income groups in a more unequal society will have worse health than comparable or even poorer groups in a society with greater equality. Of course, we cannot infer causation from correlation, but there are plausible hypotheses about pathways which link social inequalities to health, and, even if more work remains to be done to clarify the exact mechanisms, it is not unreasonable to talk here [after Michael Marmot] about the social ‘determinants’ of health.”—Norman Daniels, Bruce Kennedy, and Ichiro Kawachi in their book, Is Inequality Bad for Our Health? (Beacon Press, 2000)

Further Reading: Sreenivasan, Gopal, “Justice, Inequality, and Health,” The Stanford Encyclopedia of Philosophy.

A bibliography on Health: Law, Ethics & Social Justice 

Toward making sense of the structural constraints of health & illness in the neoliberal variation of advanced (or late-) capitalist society …

“Because of diagnostic inflation, an excessive portion of people have come to rely on antidepressants, antipsychotics, antianxiety agents, sleeping pills, and pain meds. We are becoming a society of pill poppers. [….] Loose diagnosis is causing a national drug overdose of medication. Six percent of [us] are addicted to prescription drugs, and there are now more emergency room visits and deaths due to legal prescription drugs than to illegal street drugs. [….] Since 2005 there has been a remarkable eightfold increase in psychiatric prescriptions among our active duty troops. An incredible 110,000 soldiers are now taking at least one psychotropic drug, many are on more than one, and hundreds die every year from accidental overdoses.

Psychiatric meds are now the star revenue producers for the drug companies—in 2011, over $18 billion for antipsychotics (an amazing 6 percent of all drug sales); $11 billion for ADHD drugs. Expenditure on antipsychotics has tripled, and antidepressant use nearly quadrupled from 1988 to 2008. And the wrong doctors are giving out the pills. Eighty percent of prescriptions are written by primary-care physicians with little training in their proper use, under intense pressure from drug salespeople and misled patients, after rushed seven-minute appointments, with no systemic auditing.

There is also a topsy-turvy misallocation of resources: way too much treatment is given to the normal ‘worried well’ who are harmed by it; far too little help is available for those who are really ill and desperately need it. Two thirds of people with severe depression don’t get treated it, and many suffering with schizophrenia wind up in prisons. The writing is on the wall. ‘Normal’ badly needs saving; sick people desperately require treatment. But DSM-5 seemed to be moving in just the wrong direction, adding new diagnoses that would turn everyday anxiety, eccentricity, forgetting, and bad eating habits into mental disorders. Meanwhile the truly ill would be even more ignored as psychiatry expanded its boundaries to include many who are better considered normal.” —Allen Frances, M.D. in the Preface to his book, Saving Normal: An Insider’s Revolt against Out-of-Control Psychiatric Diagnosis, DSM-5, Big Pharma, and the Medicalization of Ordinary Life (William Morrow, 2013).

*           *           *

“We like to imagine that medicine is based on evidence and the results of fair tests. In reality, those tests are often profoundly flawed. We like to imagine that doctors are familiar with the research literature, when in reality much of it is hidden from them by drug companies. We like to imagine that doctors are well-educated when in reality much of the education is funded by industry. We like to imagine that regulators let only effective drugs onto to the market, when in reality they approve hopeless drugs, with data on side effects casually withheld from doctors and patients. [….]

Drugs are tested by the people who manufacture them, in poorly designed trials, on hopelessly small numbers of weird, unrepresentative patients, and analysed using techniques which are flawed by design, in such a way that they exaggerate the benefits of treatments. Unsurprisingly, these trials tend to produce that favour the manufacturer. When trials throw up results that companies don’t like, they are perfectly entitled to hide them from doctors and patients, so we only ever see a distorted picture of any drug’s true effects. Regulators see most of the trial data, but only from early on in a drug’s life, and even then they don’t give this data to doctors or patients, or even to other parts of the government. This distorted evidence is then communicated and applied in a distorted fashion. In their forty years of practice after leaving medical school, doctors hear about what works through ad hoc oral traditions, from sales reps, colleagues or journals. But those colleagues can be in the pay of drug companies—often undisclosed—and the journals are too. And so are the patient groups. And finally, academic papers, which everyone thinks of as objective, are often covertly planned and written by people who work directly for the companies, without disclosure. Sometimes whole academic journals are even owned outright by one drug company. Aside from all this, for several of the most important and enduring problems in medicine, we have no idea what the best treatment is, because it’s not in anyone’s financial interest to conduct any trials at all. These are ongoing problems, and although people have claimed to fix many of them, for the most part they have failed; so all these problems persist, but worse than ever, because now people can pretend that everything is fine after all.”—Ben Goldacre, from the Introduction to his book, Bad Pharma: How Drug Companies Mislead Doctors and Harm Patients (Faber and Faber, 2013)

Please Note: I have two bibliographies with titles germane to this post: Biological Psychiatry, Sullied Psychology, & Pharmaceutical Reason: A Basic Bibliography and Sullied (Natural & Social) Sciences: A Basic Reading Guide (this latter compilation also covers material outside the scope of this post).

Mapping the Dimensions of Prosecutorial Misconduct: A Short Reading Guide (updated)

Charles White, Trenton Six (1949)

“Prosecutors also have tremendous control over witnesses: They can offer incentives—often highly compelling incentives—for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants. Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial. [….]  [T]here are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it—and in most cases it will never be discovered.”—Alex Kozinski (a judge on the United States Court of Appeals for the Ninth Circuit)

This is an updated and enhanced compilation from a couple of years ago (now with an episode of ‘The Rockford Files’!)

• Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
• Balko, Randy (August 5, 2013) “The Untouchables: America’s Misbehaving Prosecutors and the System that Protects Them,” Huffington Post: http://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html
• “Brady’s Mandate,” The New York Times, Nov, 12, 2011.
• Burns, Sarah (2011) The Central Park Five. New York: Alfred A. Knopf.
• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
• Christianson, Scott (2006) Innocent: Inside Wrongful Conviction Cases. New York: New York University Press.
• Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
• “Criminal Law 2.0 – Preface” [to the 44th Annual Review of Criminal Procedure], by Hon. Alex Kozinski, Georgetown Law Journal, Vol. 103 – 5: iii-xliv. PDF article available for download here: http://georgetownlawjournal.org/articles/criminal-law-2-0-preface-to-the-44th-annual-review-of-criminal-procedure/
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Freedman, Monroe H. “The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices” (February 26, 2012). Washburn Law Journal, 2012; Hofstra University Legal Studies Research Paper No. 12-06. Available: http://ssrn.com/abstract=2017178
• Freedman, Monroe and Abbe Smith (2010) Lawyers’ Ethics. Matthew Bender & Co./LexisNexis. 
• Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
• Gershman, Bennett L. (2d, 2013-14 ed.) Prosecutorial Misconduct. New York: Clark Boardman Callaghan/West Group.
• Green, Bruce A. “Prosecutors and Professional Regulation” (November 15, 2012). Georgetown Journal of Legal Ethics, Vol. 25, p. 873, 2012; Fordham Law Legal Studies Research Paper No. 2176252. Available: http://ssrn.com/abstract=2176252
• Green, Bruce A. and Yaroshefsky, Ellen. “Prosecutorial Discretion and Post-Conviction Evidence of Innocence,” Ohio State Journal of Criminal Law, Vol. 6, No. 467 (2009); Fordham Law Legal Studies Research Paper No. 1393796; Cardozo Legal Studies Research Paper No. 264. Available: http://ssrn.com/abstract=1393796
• Henning, Peter J. “Prosecutorial Misconduct and Constitutional Remedies,” 77 Wash. U. L. Q. 713 (1999). Available at: http://openscholarship.wustl.edu/law_lawreview/vol77/iss3/2
• Innocence Project: Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson.
  
  A National Dialogue in the Wake of Connick v. Thompson - See more at: http://www.innocenceproject.org/news-events-exonerations/prosecutorial-misconduct-report-2016#sthash.TaxImi2P.dpuf
• The Justice Project. “Improving Prosecutorial Accountability: A Policy Review.” (2009) Available online as a PDF doc. via a Google search. This paper has an indispensable list of books and (especially) articles under “suggested reading.”
• Kennedy, Randall (1997) Race, Crime, and the Law. New York: Pantheon Books. 
• Lawless, Joseph F. (3rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
• Lippke, Richard L. (2011) The Ethics of Plea Bargaining. Oxford, UK: Oxford University Press.
• Lithwick, Dahlia. “You’re All Out”: A defense attorney uncovers a brazen scheme to manipulate evidence, and prosecutors and police finally get caught. Slate, May 28, 2015.
• Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
• The Open File: A website about prosecutorial misconduct & accountability
• Perlin, Michael L., “‘Power and Greed and the Corruptible Seed’: Mental Disability, Prosecutorial Misconduct, and the Death Penalty” (November 10, 2014). NYLS Legal Studies Research Paper. Available: http://ssrn.com/abstract=2522444
• Prosecutorial Misconduct: Wikipedia article.
• Rakoff, Jed S. “Why Innocent People Plead Guilty,” The New York Review of Books, November 20, 2014 (Vol. 61, No. 18).
• Ridolfi, Kathleen M. and Possley, Maurice Possley; Northern California Innocence Project, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009” (2010). Northern California Innocence Project Publications. Book 2, http://digitalcommons.law.scu.edu/ncippubs/2
• “The Rockford Files”: Season 3, Episode 7: So Help Me God (19 Nov. 1976) “Jim gets called before a grand jury where he promptly gets thrown into jail for contempt.”
• Scheck, Barry, Peter Neufeld, and Jim Dwyer (2001) Actual Innocence: When Justice Goes Wrong and How to Fix It. New York: Signet.
• Schehr, Robert, “The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining” (June 1, 2015). Available: http://ssrn.com/abstract=2636501
• Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.
• “We need reforms to increase confidence in the justice system,” The Times-Picayune, Feb. 29, 2012.
• “When Innocent Clients Plead Guilty,” a blog post by yours truly at Ratio Juris.
  
• Yaroshefsky, Ellen. “New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson” (November 16, 2012). Georgetown Journal of Legal Ethics, Vol. 25, No. 913 (2012). Available: http://ssrn.com/abstract=2176986 

International Law Bibliography

My basic bibliography (books, in English) for international law is posted here.

Michael Jordan, Celebrity Culture, and the Right of Publicity

In 2009 Michael Jordan sued Jewel Food Stores among other things for appropriating his name for commercial purposes without his authorization violating his so-called right to publicity. I put the case on an exam, and recently noticed that the case is scheduled for trial in December.

Already the case stands for several important points. But, first the facts. When Michael Jordan was admitted to the Naismith Memorial Basketball Hall of Fame, Sports Illustrated put together a commemorative issue and offered Jewel Food Stores a free ad if it would display the issue in each of its 175 markets in Chicago. Jewel agreed and was given a full page ad on the inside back cover.

Jewel’s ad featured some shoes on a hardwood floor with the number 23 (Jordan’s number for most of his career – Jewel does not sell shoes). The ad said that Jordan was a Shoe In. It honored his accomplishments and congratulated “a fellow Chicagoan who was ‘just around the corner’ for so many years.” Just around the corner is Jewel’s slogan.

The lower court was prepared to dismiss the case arguing that Jewel’s speech was not commercial speech (which is considered to be lower in the hierarchy of First Amendment values than most forms of speech), but fully protected under the First Amendment. There is much to be said for this position if you accept the doctrine that corporations enjoy protection under the First Amendment. The Supreme Court has said many times that commercial speech is that speech that proposes a commercial transaction. Jewel did not mention its products. Sometimes it has said that commercial speech is solely in the economic interests of speaker and audience. Although the speech may well have been in the economic interest of Jewel, it was not solely in the economic interest of the audience.

Importantly, the Seventh Circuit Court of Appeals ruled that Jewel’s speech was commercial speech (which ordinarily is not protected against a right of publicity claim). Although Jewel did not propose a commercial transaction, Jewel’s ad was a form of institutional advertising. It was designed to increase its profits by associating its business with Michael Jordan and reminding readers that their stores permeate Chicago. There can be line drawing problems as to which corporate speech will be non-commercial because it is fair to assume that all corporate speech is designed to increase profits. Nonetheless, the decision broadening the category of commercial speech is significant.

A second aspect of the case is more common in right of publicity cases. Notice that Jordan did not sue Sports Illustrated despite its probable profit motivation in putting out the issue. Although it is possible for the media to violate the right of publicity in quite limited circumstances, this is not one of them. Generally the press gets a pass. You will sometimes read and the Court often says that the press clause has no independent significance. As Ed Baker argued, this is simply wrong, and the cases involving the right of publicity offer partial support for the view he took.

Third, it is more than a little strange that the First Amendment protects tobacco companies despite the harm they cause to the public health, but does not protect advertisers who do not make public figures richer than they already are. (Jordan is suing for $5 million).

It is hard for me to like either party in this case. It is hard to admire the cynical use of Jordan’s name by Jewel to enhance its profits (although the ad is clever). But it is also hard to admire a regime that commodifies the names of celebrities in an already voyeuristic celebrity culture and offers incentives for people like Jordan to police the use of his name in the culture. As Michael Madow once argued in a 1993 article in the California Law Review (Private Ownership of Public Image: Public Culture and Publicity Rights), the right of publicity as applied produces a regime of censorship in which celebrities police their image. For my money, in his truly great article, Madow convincingly argued that that the use of celebrity’s names is best left to the market. I believe this not as a First Amendment matter (I no longer think commercial speech should enjoy any liberty protection under the First Amendment), but because, as Madow shows, the case for the right of publicity is surprisingly weak. You have doubts. Read Madow.  

 

 

Big Money In Politics: Republican Debate Edition

Donald Trump was the center of attention in Thursday evening's (August 6) Republican debate, and he was everything one expected him to be.  He was crude, he was sexist, he was condescending and insulting -- not just to the American public, but to other nations and allies.  He even picked on Japan -- our best and strongest ally in East Asia.

While "the Donald" certainly offers a target-rich environment, I would like to focus in particular on his comments about the way in which he has used his wealth to buy political access.  He gave money to many politicians, he admitted, even some of the men sharing the stage with him.  When asked, he even acknowledged contributions to Nancy Pelosi and Hillary Clinton.

Bret Baier then brought up a quotation from Trump's past:  "When you give, they [politicians] do whatever the hell you want them to."  Baier wanted to know if Trump now wanted to distance himself from those remarks.  But Trump was not only unapologetic, he even doubled down:  "I give to everybody.  When they call, I give. . . .  When I need something done from them two years later, three years later, I call them, they are there for me."

What exactly had politicians done for Trump? Baier was curious.  Trump looked for a moment as if he had just walked into a trap.  Acknowledge substantial quid pro quo's, and he could trigger an investigation.  So he shrugged and said that thanks to his many contributions, he got Hillary Clinton to attend his wedding:  "She didn't have a choice, because I gave."

And herein is the problem with the political order.  The rich truly are different from ordinary American citizens.  They have the wealth and the financial interest to buy access to the political class.  As we approach the 2016 electoral season, we need to be mindful that Donald Trump, in his brash, crass, bloviating style managed to get to the heart of the crisis eating away at American politics.  He is no reformer.  He is the problem, and not the solution.  But his utter cynicism made clear the dimensions of  the predicament we are in.

America's wealthy super-elites see politics as investment.  By and large, they do not donate vast sums of wealth out of some sense of civic duty.  No, they put money into super PACS, they give to the limit to individual candidates, they support candidates' foundations and promote their favored causes because they expect something in return.  Even the outspoken Donald Trump knows better than to describe what he has spoken about with the politicians to whom he has been granted special attention and access.  We are left to imagine.  But in our imaginings, we should always bear in mind that catchphrase from modern business -- "ROI" -- "Return on investment."  What are they getting back?

What we need from the 2016 election, more urgently than ever, is to return campaign finance reform to the political agenda.  Three was a time when the United States had some fairly strong legislation on the books.  The modern history of campaign finance reform began in the wake of the Watergate election  of 1972, when Richard Nixon's Committee to Re-elect the President raised gargantuan sums of money from America's business class -- perhaps as much as ten million dollars from insurance executive Clement Stone, and more exotic, semi-secret contributions from such exotic, semi-secret characters as Robert Vesco and Howard Hughes.

In the wake of Watergate, in 1975, Congress created the Federal Election Commission and empowered the Commission to enforce strict limits on contributions by individuals and political action committees.  And in 1976, in the decision of Buckley v. Valeo, there began the long and inglorious history of the United States Supreme Court relaxing those restrictions.  The Supreme Court did not precisely declare that "money is speech," but its ruling that certain campaign finance restrictions infringed on free-speech rights came pretty close to saying just that.

Nearly three decades later, in 2002, Congress enacted the "Bipartisan Campaign Reform Act," better known as "McCain-Feingold," after the bill's two principal sponsors, Republican John McCain of Arizona and Democrat Russell Feingold of Wisconsin.  John McCain's impetus to take action was the result of his involvement as a member of the so-called "Keating Five."  This was a group of western senators who had received large and questionable campaign contributions from Charles Keating, a corrupt Arizona banker and real-estate developer.  Although McCain escaped formal reprimand (he was criticized for "bad judgment"), he concluded that the system needed repair.

The goal of McCain-Feingold was to reduce the influence of large pools of soft money on the political process.  While the Supreme Court has upheld parts of McCain-Feingold, it has also relaxed crucial provisions.  Most notoriously, in the case of Citizens United (2010), the Supreme Court declared that corporations enjoyed full political and free-speech rights and could therefore spend money directly on behalf of candidates or issues.  A pair of federal appellate decisions have helped to complete the demolition.  In Emily's List v. FEC and Speechnow.org v. FEC, courts empowered Super PACs to raise unlimited sums of money from wealthy donors, all in the name of the First Amendment.

Donald Trump's performance illustrates the final consequence of this sorry train of developments.  He has, by all accounts, fielded countless calls from politicians in need of money and he has donated generously to many of them.  But he is no longer content to be simply another member of the donor/contribution/investor class who helps to finance the modern political campaign.  He wishes to become a player himself.  On Thursday night, he plainly oozed contempt for his fellow candidates.  It is a condescension born of the many backdoor conversations he has doubtlessly had with contenders for elective office.  Politicians have genuflected too many times before his throne, for Trump to retain any respect for them now.

I am personally disappointed that other commentators have seemingly not noticed this portion of the Republican debate.  For me, these might have been the most troubling moments.  I hope for many things from the 2016 election, but two issues seem particularly compelling at the moment:  We need to elect a president and Congress who are serious about campaign-finance reform.  And we need a Supreme Court that will defer to the judgments of the legislative branch on how to lessen the impact of great wealth on the political process.  If politicians try to clean up politics -- a noble cause! -- the Supreme Court should cease being an obstacle.

Cross-posted: http://www.huffingtonpost.com/charles-j-reid-jr/big-money-in-politics-rep_b_7957608.html 

The 50th anniversary of the Voting Rights Act

Voter registration drive in Mississippi, 1964

Today is the 50^th anniversary (August 6, 1965) of the Voting Rights Act. We’ll mark that anniversary first, by recommending a recent book on the topic, Gary May’s Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic Books, 2013). The book came out before the Supreme Court’s ruling in Shelby County v. Holder, 570 U.S. ___ (2013) (the paperback version published by Duke University Press in 2014 has a new preface by May that presumably addresses the case), a decision concerning “the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting.” By a 5-to-4 vote, the Court held that “that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.”

Second, in honor of this anniversary, I suggest visiting a page from the Zinn Education Project: The Voting Rights Act: Ten Things You Should Know, an article by Emilye Crosby and Judy Richardson that is a perfect exemplum of historical and political pedagogy (includes a couple of videos and exquisite photographs).

Finally, I’ve assembled a handful of photos by way of acknowledging the struggle to enfranchise Black citizens in this country, a struggle that was of course an integral part of the wider Civil Rights movement and marked by “intensive organizing and activism spearheaded by the Black community.”

Addendum: See too the numerous posts for today (and some earlier archived posts) at Rick Hasen’s Election Law Blog.

Literacy and citizenship school workshops developed by Septima Poinsette Clark (1898-1987) played a pivotal part in the drive for voting rights and civil rights for African Americans.

“[The] Highlander [Folk School] worked with Esau Jenkins of Johns Island to develop a literacy program for Blacks who were prevented from registering to vote by literacy requirements. The Citizenship Education Schools coordinated by Septima Clark with assistance from Bernice Robinson spread widely throughout the South and helped thousands of Blacks register to vote. Later the program was transferred to the Southern Christian Leadership Conference because the state of Tennessee was threatening to close the school.” Esau Jenkins with Myles Horton (the latter one of the founders of HFS)

Ella Baker at a Highlander workshop (Myles Horton at far left)

Bob Moses and others working to register voters

SNCC workshop at Highlander

Why You Can't Believe the Polls About Religious Beliefs and Conduct

Princeton’s Robert Wuthnow, one of the leading sociologists of religion, has an illuminating article in First Things on the increasing unreliability of even prominent national polls on religion. As he observes in a crucial passage, “As public confidence in polls has tanked, so has the public’s willingness to participate in polls. Response rates have declined precipitously. In the 1980s, the typical response rate was in the 65- to 75-percent range—the range to which serious academic and government surveys aspire and frequently achieve. By the late 1990s, response rates had fallen to 30 to 35 percent. Currently the typical response rate is 9 or 10 percent, and rates rarely exceed 15 percent. In other words, upwards of 90 percent of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate.

Wuthnow identifies the characteristics of those who participate in the polls and concludes they are strikingly unrepresentative of the general public. As a consequence, for example, he points out that the polls showing that 90-100 million people attend church every week are likely off by as much as 30 million. At the same time he casts doubt on claims so frequently made about those who have no institutional religious affiliation. In the end, however, he maintains that some forms of scholarship can lead to more reliable results. Wuthnow’s stinging indictment of the polls we read about in the news is well worth the read.

The Democrats Need a Horse Race

The Democratic Party needs a horse race for its presidential nomination for 2016.  They require the energy that a serious multi-candidate field brings to the electoral cycle.  Primary campaigns, after all, ought to do the following things for a political party:  They should frame and focus the campaign on the future.  Elections, after all, are usually decided about which party has a more compelling vision of the future.  But primaries also serve as seed beds for fresh ideas.  Nowhere do policy proposals receive greater scrutiny than in the heat of a campaign.  And, finally, primary campaigns generate passion, enthusiasm, and excitement among the Party's supporters and the electorate at large.  And general elections are won or lost on the basis of such excitement.

At the moment, the Democratic Party could stand improvement on each of these points.  Indeed, the primary campaign can be described as running on parallel tracks that show little sign of intersecting.  There is Hillary Clinton, who continues to win the support of a little more than half of the Party.  She also fares well when matched against Republican contenders, although her lead is slowly diminishing.

On the next track over there is Bernie Sanders, who is bringing enthusiasm and excitement to the race, as well as some fresh thinking. But while Senator Sanders has a strong and passionate following, he is underfunded and in desperate need of a more robust campaign apparatus.

And, finally, on the third track, there are the other candidates -- Martin O'Malley, Jim Webb, and Lincoln Chafee.  Their campaigns seem almost like afterthoughts, which is regrettable, especially where O'Malley is concerned.

There appears, furthermore, to be little planning being done for candidate debates.  Times, dates, and places have yet to be announced.  This is regrettable.  Debates help capture the public's imagination.  Yes, debates carry risk -- there is the always-present possibility of a verbal gaffe or other public embarrassment.  But debates also allow candidates to sharpen their focus and get ready for that inevitable high-stakes, high-wire-walk-without-a-net that is the general election.

The present situation, it is fair to say, is probably unsustainable.  Nature abhors a vacuum just as a presidential election cycle abhors attempts to frustrate an active and engaged campaigning season.

To that end, I would encourage both Vice President Joe Biden and Starbucks entrepreneur Howard Schultz to consider seriously announcing their candidacies for the White House.  Both men possess qualities that would serve them well both in a campaign and, more importantly, assist them greatly in governing the country should they ultimately prevail.

Joe Biden was elected Vice President in 2008 after a three-decade career in the United States Senate.  During his time in the Senate, he established himself as a key figure in a number of important areas.  He has been a strong supporter of the rights of labor and knows in his heart the role labor unions play in sustaining the American middle class.  Back in 2012, he did a great job calling out Paul Ryan and the social Darwinist right wing on their plans to turn Medicare into a voucher program.

He thus knows how to stand up to those plutocrats like Jeb Bush who continues calling for the "phasing out" of Medicare.  And during his time in the Senate, Biden repeatedly demonstrated his command of foreign affairs.  He both served on and eventually chaired the Senate Foreign Relations Committee.

Howard Schultz would similarly make a strong  candidate.  His life story is one of triumph against great odds, rising from the housing projects of Brooklyn to build a leading American company.  His life and career stand as testament to a quality America desperately needs from its business class -- business, all business, must be about serving the common good.  Yes, businesses must make a profit, but not at the expense of human values.

Schultz has spoken out on Ferguson, Missouri, and the crying need to improve race relations in this country.  He supports investments in America's educational system.  He recognizes that health care is a basic human right.  Even during Starbucks' early years, he took steps to make sure that even his part-time employees had access to health insurance.

Biden and Schultz, in other words, would both bring important insights and perspectives to the campaign.  Just as importantly, they would reinvigorate the campaign.  They would revitalize it, enliven it with new enthusiasm.  They would, in other words, help to transform the Democratic presidential nomination into a horse race.

Such a free-spirited campaign, I predict, would not become divisive.  This is so for at least two reasons:  First, Democratic ideas and Democratic policies are innately attractive to most Americans.  Most Americans instinctively support greater access to health care, improved primary, secondary, and higher education, a greener environment, and a more peaceful, cooperative world.  Second, the Democratic base is simply not like the Republican base.  The American right wing is, how to put it gently? peopled with some rather exotic characters who tend to frighten and put off voters.  A wide-open campaign by Democrats, on the other hand, over how best to promote and enhance the American way of life, would more likely build support for the eventual nominee.  The Democratic Party -- and indeed, the country at large -- both needs and would benefit from a real horse race.

Cross-posted: http://www.huffingtonpost.com/charles-j-reid-jr/the-democrats-need-a-hors_b_7936060.html 

Why Is Big-Game Hunting So Repulsive?

The pictures are sad and grotesque.  An American dentist and his guide grinning over the remains of Cecil the Lion.  Our sympathies run directly to the victim of the hunt, the lion.  Walter Palmer, the dentist who killed Cecil, is not the first American to ignite disgust over the slaughter of some of the world's great animals.  A little more than a year ago, it was the Texas Tech cheerleader Kendall Jones who posed, armed and in camouflage, her boot resting on top of a lifeless lion.

Big-game hunting has become repulsive.  Why?  It was not always so.  I remember as a child -- the middle-to-late 1960s -- being taken by my parents to the Field Museum in Chicago.  We viewed row upon row of glass cases containing big-game specimens shot dead in hunting expeditions.  Teddy Roosevelt's sons, as I recall, Theodore, Jr., and Kermit, contributed an especially large quantity of "trophies" to the Museum from their 1920's expeditions across Asia.  They even killed a giant panda.

They hunted their prey at a time when big-game hunting was considered sport.  That it was ever considered sporting to track down and kill large animals is in need of explanation.  For, when viewed in historical context, big-game hunting seems to be an outgrowth of all that was wrong and wicked and distorted about late-19th- and early-20th-century Western culture and society.

This was the era of social Darwinism, after all.  Social Darwinism followed a strict creed dictated by the unfettered capitalism of the day:  society was naturally competitive -- "red in tooth and claw."  The winners were those who accumulated fortunes and controlled vast wealth.  The losers, on this distorted ideology, were those who did not succeed and who struggled for their daily bread.  Big-game hunting was an expression of this ideology, a way in which the rich and power could travel to distant lands, pantomime acts of conquest, and assert their might and power in ritualized killing.

But big-game hunting represented and reflected yet other noxious ideological currents of that era.  Nature, a century ago, was conceived of as an implacable foe, a hostile power that had to confronted, combated, and tamed.  Think of the polar explorers and the mountain-climbing expeditions of that day and age.  For sure, they dared greatly and accomplished much.  They expanded the horizons of human knowledge and inspired heroic acts of courage and will.  I remember, again as a child, fairly weeping when I read of Robert Falcon Scott's doomed 1912 expedition to the South Pole.  How he finished second in the race to the Pole behind Roald Amundsen, and how he and his crew died in their tents on the return journey, only a few miles from resupply.

While expeditions like Scott's served the cause of science and even stirred the hearts of twelve-year-old boys, they were also fed and fueled by the ambition to subdue nature.  Nature was an inhospitable force that had to be made to serve human needs.  It was, it goes without saying, also a time of environmental catastrophe.  One is reminded of the Salton Sea in southern California, formed in 1905 in the aftermath of a failed irrigation project.  The era's big-game hunting was just another aspect of the urge to bend nature to human will and to wring from it the wealth that was stored within.

And finally, course, big-game hunting was a manifestation of colonialism.  White Americans and Europeans traveled to exotic lands and slaughtered the local wildlife because they wished to demonstrate their political dominance.  They wanted to display their weaponry, their wealth, and their command of the instruments of power over lands and peoples for whom they had little respect.

We no longer live in the world of a century ago.  Yes, to be sure, social Darwinism remains a force.  It has its defenders, in business, in industry, and in the academy.  And our world remains cursed with the effects of the maldistribution of wealth.  Innocent children still die in large numbers from malaria, malnutrition, and a host of other problems associated with preventable poverty.  On the other hand, great moral voices -- secular and religious -- have spoken against this state of affairs and social Darwinism can no longer be said to command the heights in quite the way it did a hundred and more years ago.  We live in a world where many of us, at least, appreciate the values of collaboration, cooperation, and, yes, even sharing.

Nature, furthermore, is no longer viewed as an enemy that we must defeat.  We have a century of tragic experience telling us that we must live with and not against the natural world.  Scientists report that we are on the cusp of a sixth great mass extinction event -- an extinction event brought about not by runaway volcanic eruptions or by an asteroid impact, but by environmental degradation.  Similarly, we are faced with potentially catastrophic climate change, as polar ice caps melt and sea levels rise.  We have learned the bitter lesson that a century's worth of hostility to nature has truly baleful and world-altering effects.  Big-game hunting as a sign and symbol of that old and discredited way of life seems entirely out of place in the world we now inhabit.

Finally, of course, there is colonialism.  We still live with its deplorable effects.  Racism, that poisonous fruit of colonialism, haunts us still, in this nation and across the world.  People are still made to suffer and die because of their ethnicity.  Big-game hunting reminds us, at least at a subliminal level, of those days when wealthy white hunters depleted the landscapes of foreign, distant locales merely to assert their ascendancy and control over other peoples.

Big-game hunting leaves us troubled, I surmise, because it summons us to think of this sordid past. Big-game hunting no longer serves any social utility. The hunters' targets -- lions, elephants, rhinoceroses, and other mega fauna -- are all endangered species. Perhaps big-game hunting will vanish from the modern world, through the force of social criticism if not by positive legislative enactment. And, much more importantly, we should strive to make a better world -- a more cooperative economy, a safer, cleaner environment, and a place where peoples of different ethnic and social and religious backgrounds can live and prosper as equals.

Cross-posted: http://www.huffingtonpost.com/charles-j-reid-jr/why-is-big-game-hunting-s_b_7921908.html

Science & Religion: The pursuit of truth, value, and knowledge in different domains of human endeavor, inquiry, and praxis

We begin with a small crop of propositions about truth from Michael P. Lynch directly and indirectly germane, in an abstract and philosophical sense, to both science and religion (we might think of these as basic presuppositions and assumptions). For what it’s worth, I believe, with Lynch, that it is important to acknowledge that truth is objective; that it is good to believe what is true; that truth is a goal worthy of human inquiry; and that truth is worth caring about for its own sake. That said, we might also concede the significance of the following and related propositions from Lynch’s analytically cogent philosophical examination of the nature of truth in several works on same (see ‘references and further reading’ below):

‘A theory of truth should make sense of the following metaphysical principle: Truth is One: There is a single property named by “truth” that all and only true propositions share.’ The theory should also be ‘able to make sense of the intuition that drives pluralism about truth, namely, Truth is Many: there is more than one way to be true.’

‘Minimally speaking, a proposition is true in the realist sense when things are as that proposition says they are. Some aspect of objective reality must simply be a certain way. If it is, then the proposition is true; if not, the proposition is false. The truth of the proposition hinges on the world alone, not on our thought about the world. In short, realism about truth minimally implies two commitments: (a) truth is an authentic property that some propositions have and others lack, and (b) the concept of truth is, in Putnam’s words, “radically non-epistemic;” that is, whether a proposition is true (in most cases) does not depend on what I or anyone else believes or knows. [….] According to correspondence accounts of truth, there are three metaphysical aspects to any true proposition: the proposition itself (the truth bearer), its correspondence (the truth relation), and the reality to which it corresponds (the truth marker). [….] In other words, propositions are true when they correspond to the facts.’

‘The content of an assertion is intrinsically related to a conceptual scheme. [….] In effect, propositions, true or false, are implicitly indexed to some conceptual scheme or schemes. [….] Facts are internal to conceptual schemes, or ways of dividing the world into objects, among which there can be equally acceptable alternatives. [….] [S]uch metaphysical pluralism is consistent with realism about truth.’

‘[T]here is no logical incoherence in supposing that facts and propositions are relative to conceptual schemes and that truth is the correspondence of (relative) propositions with (relative) facts.’

‘All truths are relative, yes, but our concept of truth needn’t be a relative concept.’

‘Thinking about why we should care about truth tells us two things about it: first, that truth is, in part, a deeply normative property—it is a value. And second, this is a fact that any adequate theory of truth must account for. In light of this fact, I suggest that truth, like other values, should be understood as depending on, but not reducible to, lower-level properties. Yet which properties truth depends on or supervenes on may change with the type of belief in question. This opens the door to a type of pluralism: truth in ethics may be realized differently than in physics.’

‘…[T]here is more than one property that make beliefs true. Truth…is immanent in those other properties of beliefs. In some domains, what makes a belief true is that it corresponds to reality; in others, beliefs are made true by a form of coherence. [….] [Traditional theories of truth] are not best conceived of as theories of truth itself. They are better seen as theories of the properties that make beliefs true—or manifest truth.’

‘[T]ruth is a single higher-level property whose instantiations across kinds of propositions are determined by a class of other, numerically distinct properties. [….] Truth is many because different properties may manifest truth in distinct domains of inquiry. In those domains they have the truish features [we find in those folk-truisms enumerated above]. Truth is one because there is a single property so manifested, and “truth” rigidly names that property.’

‘Truth is an immanent functional property that is variably manifested.’

*           *           *

We continue with several philosophical comments from another philosopher, Hilary Putnam, by way of a proposed propaedeutic to any general comparative inquiry into science and religion:

 ‘…[The] “scientific” is not coextensive with “rational.” There are many perfectly rational beliefs that cannot be tested ‘scientifically.’ But more than that, …there are whole domains of fact with respect to which present-day science tells us nothing at all, not even that the facts in question exist. These domains are not new or strange. Three of them are (1) the domain of objective values; (2) the domain of freedom; (3) the domain of rationality itself.’

‘I think that the idealist “picture” calls our attention to vitally important features of our practice—and what is the point of having “pictures” if we are not interested in seeing how well they represent what we actually think and do? That we do not, in practice, actually construct a unique vision of the world, but only a vast number of versions (not all of them equivalent…) is something that “realism” hides from us.’

*           *           *

We end our propaedeutic with a passage I’ve had occasion to cite several times over the years at this blog from my dear friend and former teacher, Nandini Iyer:

‘To affirm that there can be several different systems all giving us, at the same time, varying and yet legitimate “true” metaphysical descriptions of the world does not…necessarily entail that there are many realities, that nothing is absolutely real, or, put less dramatically, that there is no such thing as a single, context neutral description or account of the world, that is, as the world really is. It only means that no metaphysical description of it can be outside every possible conceptual framework, but Reality itself is. Nor does it follow that any assertions about this “real” or “true” world beyond all conceptual frameworks, are nonsense. [....] The conceptual frameworks we build in the realm of rational thought are not useless just because they cannot describe Ultimate Reality. Serious examination of, reflection on, these explanatory and interpretive schemes, their differences and overlaps, are crucial to expanding and deepening our understanding of reality, even if these conceptual frameworks (any or all possible combinations and collections of them) cannot bring us the Absolute Truth. If nothing else, they enable us to understand the relativity of conceptual truths and structures, and make us see what Pascal meant when he said that the highest function of reason is to show us the limitations of reason.’

*           *           *

That said, we should be well-disposed to appreciate a review of two books on science and religion by Colin Dickey in The Los Angeles Review of Books: “Two-Way Monologue: How to Get Past Science vs. Religion.” Dickey looks at two recent books on “science and religion,” the first, by Jerry A. Coyne, a biologist: Faith vs. Fact: Why Science and Religion are Incompatible (Viking, 2015) (the tendentious title alone will put off many prospective readers); the other, The Territories of Science and Religion (University of Chicago Press, 2015), by an historian, Peter Harrison, who also edited the The Cambridge Companion to Science and Religion (2010). It’s an excellent review.

In the spirit of the review (and at the urging of Steve Shiffrin), here is a short list of titles on science and religion (I’ve yet to add the title from Harrison). Other compilations from yours truly related in some way to science (in alphabetical order): Biological Psychiatry, Sullied Psychology and Pharmaceutical Reason: A Basic Bibliography; Ethical Perspectives on the Sciences & Technology: A Basic Bibliography (this was largely derived from a much larger and older list on science and technology); and Sullied (Natural & Social) Sciences: A Basic Reading Guide. And of course I have bibliographies on religious worldviews as well at my Academia.edu site.  

References & Further Reading:                       

• Cottingham, John. On the Meaning of Life. London: Routledge, 2003.
• Cottingham, John. The Spiritual Dimension: Religion, Philosophy and Human Value. Cambridge, UK: Cambridge University Press, 2005.
• Dupré, John. Human Nature and the Limits of Science. Oxford, UK: Clarendon Press, 2001.
• Goodman, Lenn E. In Defense of Truth: A Pluralistic Approach. Amherst, NY: Humanity Books/Prometheus Books, 2001.
• Iyer, Nandini. “It Ain’t Necessarily So,” in Knut A. Jacobsen, ed. Theory and Practice of Yoga: Essays in Honour of Gerald James Larson.Leiden: Brill, 2005: 99-127.
• Kupperman, Joel. Value…And What Follows. Oxford, UK: Oxford University Press, 1999.
• Lloyd, G.E.R. Cognitive Variations: Reflections on the Unity & Diversity of the Human Mind. Oxford, UK: Clarendon Press, 2007.
• Lynch, Michael P. Truth in Context: An Essay on Pluralism and Objectivity. Cambridge, MA: MIT Press, 1998.
• Lynch, Michael P. True to Life: Why Truth Matters. Cambridge, MA: MIT Press, 2004.
• Lynch, Michael P. Truth as One and Many. New York: Oxford University Press, 2009.
• Lynch, Michael P., ed. The Nature of Truth: Classic and Contemporary Perspectives. Cambridge, MA: Cambridge University Press, 2001.
• Murdoch, Iris. The Sovereignty of Good. London: Routledge, 1991.
• Putnam, Hilary. Reason, Truth and History. Cambridge, UK: Cambridge University Press, 1981.
• Putnam, Hilary (James Conant, ed.). Realism with a Human Face. Cambridge, MA: Harvard University Press, 1990.
• Rescher, Nicholas. Pluralism: Against the Demand for Consensus. Oxford, UK: Clarendon Press, 1993.
• Rescher, Nicholas. Objectivity: The Obligations of Impersonal Reason. Notre Dame, IN: University of Notre Dame Press, 1997.
• Rescher, Nicholas. Nature and Understanding: The Metaphysics and Method of Science. Oxford, UK: Clarendon Press, 2000.
• Rescher, Nicholas. Cognitive Pragmatism: The Theory of Knowledge in Pragmatic Perspective. Pittsburgh, PA: University of Pittsburgh Press, 2001.
• Warner, Martin. Philosophical Finesse: Studies in the Art of Rational Persuasion. Oxford, UK: Clarendon Press, 2009.
• Wedgwood, Ralph. The Nature of Normativity. New York: Oxford University Press, 2007.
• Ziman, John. Real Science: What It Is, and What It Means. Cambridge, UK: Cambridge University Press, 2000.
  

Image: Interior ceiling of the Blue Mosque in Istanbul.