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This is my first time posting so I hope I'm posting in the right place, following all the local conventions, etc. This is something that I've had on my mind for a while and this seems like one of the only places on the Internet where this kind of thing can go.
I've been thinking about how laws are described, and how lacking and vague they often are.
Imagine you are a preschool teacher, supervising a group of children on the playground. You decide to teach them the rules of soccer. You tell them some of the basic rules, like how there are two teams, and that the goal of the game is to score points by putting the ball into the other team's goal. You also tell them that You Are Not Allowed To Use Your Hands.
As the game begins, you leave to attend to some other business. When you return shortly afterward, all the children come flocking to you. They eagerly clamor to tell you that Johnny broke a rule. Specifically, he used his hand to stop the opposing team from scoring a goal. Johnny readily admits this, adding that he is sorry. One by one, the children line up to tell you what they think should happen.
Alicia says that Johnny should be given five minutes of timeout.
Braden says that Johnny's team should lose the game.
Carrie says that Johnny's opponents should be awarded one "point".
Darren says that Johnny should have to apologize to everyone else and promise never to do it again.
Esther says that Johnny should be banned from playing soccer because he clearly can't follow the rules.
Given the rule that you gave them (You Are Not Allowed To Use Your Hands), which, if any, of the children is correct? There is a correct answer in "real" soccer – Johnny's opponents should be given a free kick (or penalty kick, depending on where the offense occurred) and Johnny should be given a red card for denying a goalscoring opportunity. However, you never told the kids that rule. You only said that You Are Not Allowed To Use Your Hands. There was no way they could have figured out what your intended punishment for the infraction was. There's no reason why their suggestions aren't equally valid, since even though you stated that an action was illegal, you failed to tell them its consequences. Ultimately, you will have to appeal to the meta-rule of The Rule Is Whatever I Say It Is Because I Am The Adult And I Am In Charge, and the children will have a valid grumble about the arbitrariness of your tyrannical rule. However, their suffering is not in vain, as you have learned from this experience and in the future, you will formulate your rules in the form of a trigger ("when someone uses their hands") and a consequence ("the other team gets a free kick"), saving future generations of preschoolers from untold agony.
Okay, great. Some hypothetical preschoolers are unhappy. When has this ever happened in real life?
Take the case of the Pine Tar Incident. On July 24, 1983, the Kansas City Royals played the New York Yankees in a game of baseball. In the eighth inning, Royals third baseman George Brett hit a two-run home run, putting the Royals ahead 5-4. However, opposing manager Billy Martin then pointed out to the umpire that the bat Brett used to hit his home run had pine tar applied in an illegal fashion. Specifically, he contended that Brett violated the following rule:
The umpires examined the bat and agreed with Martin, ruling Brett out and his home run void. A whole flurry of events followed, including the Royals lodging a successful protest where the league office overruled the umpire's initial ruling and ordered a replay of the final innings of the game, stating that the appropriate consequence of the infraction was to remove the bat from the game, not overrule the home run that had been hit with it.
The ultimate ruling isn't very important, but the point is that Bats Can Have Pine Tar In Some Places But Not Others is the same kind of rule as You Are Not Allowed To Use Your Hands. It's a bad, ill-formed rule, leading to ad-hoc rulings that leave those involved feeling justifiably aggrieved. A better rule would be something like Bats That Have Pine Tar In The Wrong Places Will Be Removed From The Game. Indeed, Major League Baseball (one of the best-run organizations in terms of writing good rules) has recognized this deficit and has since amended its rule to be along those lines. Other examples of well-formed rules include If The Ball Goes Out Of Play Then The Other Team Gets A Throw-In (in soccer) or If A Pitcher's Socks Are Too Colorful He Has To Change Into Different Socks (in baseball), which both specify a clear trigger and consequence.
Obviously, these concepts apply to laws made by governments just as much as it applies to rules for games. There is a reason why the earliest laws read something like He Who Puts Another's Eye Out Shall Have His Own Eye Put Out and not like Putting Another's Eye Out Is Not Allowed. Transparency is important to having a fair set of laws, and clear consequences provide that transparency. In the case of Hammurabi's code, it means most people can live free from the fear of recreational eye stabbers, since they know that most people will be hesitant to stab eyes if it means getting their own eyes stabbed in return. On the other hand, if the law was Putting Another's Eye Out Is Not Allowed, the question of what the consequence is unanswered. In practice, it would default to The Law Is Whatever I Say It Is Because I Am The King And I Am In Charge, which is significantly more volatile. One would have to keep an eye out (har har) for eye stabbers that were unusually friendly with the king, for example.
How does this relate to the culture war? Well, I was thinking about the recent (okay, not really that recent) Supreme Court ruling on Affirmative Action. Every source I have ever read on the topic has talked about the ruling as something that says You Are Not Allowed To Discriminate On The Basis Of Race without any mention of what the consequences are. For example, the New York Times writes
Affirmative action is "unlawful", but what exactly is the penalty if someone discriminates on the basis of race? To draw a parallel to the preschool soccer situation above, one can easily imagine five people with the following suggestions:
All these suggestions are completely consistent with You Are Not Allowed To Discriminate On The Basis Of Race. In practice of course, the law defaults to The Law Is Whatever I Say It Is Because I Command A Byzantine Bureaucracy That Will Somewhat Enforce My Demands So I Am Vaguely In Charge. This is exactly the same kind of unclear situation as the handball and pine tar cases, except the stakes are much higher. If you ask various Experts (TM) what the current law actually is (in terms of trigger/consequence), you will only get speculation. Some say that universities will be able to continue to discriminate on the basis of race as long as it's in a way that isn't exactly the same as the way they had been doing in the past, while others say that the effect is slightly larger. No one knows what the law really is until it gets enforced.
On the other hand, there is also the possibility that we actually do know what the law is. After all, if a law is simply a trigger paired with a consequence, we've already witnessed at least one instance of the trigger (a university discriminating on the basis of race) along with the consequence brought about by that trigger (the universities are told nicely to stop doing whatever they were doing). That is, the law isn't You Are Not Allowed To Discriminate On The Basis Of Race, but rather If You Discriminate On The Basis Of Race, We Tell You To Stop Doing That. (As far as I know, the universities have not been penalized or ordered to compensate their victims in any way – if this is incorrect, I would be open to being corrected.)
If I'm right about this kind of law being bad, what can one reasonably do about this? If someone says "The Supreme Court just made affirmative action illegal", should I respond with "That is a non-central usage of the word 'illegal'"? If saying "AA is illegal now" is bad usage, what would be good usage of "X is illegal"? Certainly, there could be some cases where it is useful, as a code of laws can be made easier to understand if you group multiple triggers with the same consequence (for example, multiple actions in soccer are grouped together as "fouls" and have basically the same consequences). The category of "illegal" could be useful in a similar vein, where we group together various triggers that have the consequence "negative things happen to you". We could then exclude things from the "illegal" category if the consequences are not sufficiently bad, like how we don't consider earning income "illegal" even though it results in losing some amount of money through taxes.
I don't know how to end the post so this is the end of the post.
Punishing racist liberals who act like their ideology is the law is indeed one of the most important ways to restore western republics. Liberals here is a wide range and include woke conservatives like the Theresa May, Torries and others who in practice have been part of this problem.
At minimum people who abuse their post to make a police that goes after not self hating people, or to discriminate for minorities, can in fact be removed from their positions.
Another possibility are large fines.
And why not criminal prosecutions as well.
Generally what needs to be done is simple and doesn't really fit into a bothsidesist narrative that pretends to have intellectual complexity when it is actually intellectually dishonest.
A rule of principle does conflict with the current mainstream liberalism and the ideology that has taken over much of the establishment.
Nevertheless one must also consider organisations. Can you have a non racist society when left wing activist organisations and etnhic supremacist organisations have successfully conspired to have huge power in goverment and in private corporations?
The ADL is quite notorious example in American sense and organizations like hope not hate in places like Britain. I believe making such organizations illegal and declaring them criminal organizations and putting in charge prosecutors with a mind to have them go the way of the mafia, is the way to go.
You must be intolerant to the ideology and ideologues who say that it is ok to discriminate in favor of groups of the progressive stack, to get a society that doesn't do it. So don't tolerate people who promote these ideas in academia, in books, etc. The playbook that has been followed against both the far right and moderation can be used quite successfully against the far left.
As for freedom of speech absolutism, that is completely impossible. A relatively more free society might happen but like in eastern europe after end of communism when they blacklisted the political commissars, you will need to do that. At some point the freedom of the criminal or the political commissar to be an authoritarian tyrant conflicts with the freedom of rest of society.
However things like equality under the law might require a culture that is quite for it. Generally tradeoffs are certain, but you can have a different balance that are worse or quite better. Lets just say the world where Stalin, or Jonathan Greenblat has the maximum freedom is worse than one where regular people are relatively free but figures like these are much less so. Plus freedom of certain individuals isn't everything, there is also to consider how institutions should faction in the way they supposed to.
Academia focusing on promoting the truth and real intellectualism is more important than respecting the freedom of those who want to promote nonsense, and so on. So I believe we need an attitute of enforcing behaviors that are not tolerant to the ideology that what is right is progressive/liberal dogma.
Let me propose an ethical system that is part of the enforcement mechanism and does allow vaccum to dominate. The ethos that it is moral of people promoting their own good, or their group's good while respecting the golden rule and same right to others and trying to not trample over other groups or individuals in pursuing their own betterment.
Enforcing evenhandedness and institutions working in the way they are supposed to will work better than most alternatives I see proposed. Although this also requires a faction of people who support doing this getting power and pushing it through.
Of course, contra some American libertarianish types, part of the rule of law includes international justice which includes the rights of national sovereignity, self determination, genocide being a crime and also purporseful demographic change at expense of a nation also being a crime under international law. In many cases there are pragmatically grey areas, but no people are not interrchangeble, in both attiutes and behavior, nor does the current zeltgeist successfully try to remove ethnic identitarianism of their ingroup against their outgroup. They reinfore it. You see them promote antidentiarianism against natives. So, you can't go full 100% hardcore on nationalism, since that can lead to areas of other groups being mistreated, but respecting the human rights of native peoples are a key aspect to deviating with the current pathological extremes. This means stopping illegal migration and mass migration and recognizing that it had been an infringement on the rights of native people. I have a view focusing more on the old world on this than USA specifically which is somewhat more complicated with its history in my view.
Anyway, the right wing that actually wants to enforce rules evenly and promote things more in line with what I argue here are the people whose ideology is compatible with changing the current injustice into justice. The far leftists in moderate or even fake conservative clothing who play bothsidesist games when they aren't outright hating on the only ones who could change things tend to for the most part side with the agenda that is far left ethnic supremacist against native ethnic groups in western countries. It is fairer to just call it antiwhite in the USA since one could claim blacks there are no more native than white Americans. They are the people to blame for what has happened and the kind of people who need to be kept out of influence on these issues and these far leftists in the centrist clothing are representative of who is to blame for pervasive racist policies of the nature I outlined continuing.
Sometimes facts might appear more muddy because like decades ago Its like trying to convince people who claim to be moderate that Soviet Union sucks and is oppressive while being in a room full of vicious fellow travelers. It won't go well for you, because of the bias and bad nature of the related people. But it doesn't make the facts less straightforward, it is just that straightforwardness and truth is controversial in certain circles that are acting with enough fanaticism, bias or bad faith. And then the struggle sessions start and pressure to apologize. So the problem is not that people aren't charitable enough to the people I condemned but that they have been too willing to excuse their bad behavior and tolerate it. In part because they haven't gatekept them enough out of influence and are allowed to influence the reaction to themselves.
Its like putting the thieves in the position of the judge when deciding the penalty for thievery!
The problem with corruption is that it's society-wide and an emergent phenomenon from economic circumstances (poorer countries are always more corrupt than rich ones are- just comes with the territory). This is why it's happening now- compared to 60 years ago there was no massive uplift out of poverty for most of the West through industrialization, no transformative technologies like radio, TV, thinking machines, telephones, affordable semi-private transportation, and certainly not all of those things at once.
This is why the US (and its provinces to varying degrees) citizenry was at a high watermark of anti-corruption at that time, and why conservatives even have a US that barely had any corruption to remember in the first place. Of course, despite their best attempts, all their anti-corruption laws ended up getting corrupted over time; movements and groups that were once positive-sum expansions of economics and civil rights have all devolved into zero-sum supremacy movements.
As far as eliminating corruption goes, well, that's a hard problem and not one any society has ever managed to solve. It's harder without circumstances that empower the anti-corrupt (we're currently scraping the bottom of the barrel for new technology) and that technology has allowed us to prevent most of the Four Horsemen from paying us a visit (as mostly-indiscriminate death from war/disease/famine tends to, after the fact, increase the individual's power to resist corruption due to increased resource availability, leading to the society becoming less affected by corrupt tendencies in itself- sometimes this needle doesn't move much, like in China during the mass exterminations campaigns of the '50s and '60s, but it does still move).
Calling it by its proper name is generally the best way to start.
Look, I live in a poorer country than USA where you don't see as happened in the USA of over 90% of jobs going to favored by progressives groups after BLM as Bloomberg reported. You don't see this kind of behavior because there are less people with this ideology.
There are also people here who advocate moving more in line of this direction. And they do this because of their ideology. if they capture power they are going to push things more in that line. If people who see it my way are in power, then we will not tolerate progressive supremacists.
It really is tragic that your best hope of moving the needle even a little is mass death other than recognise that groups like the ADL not having a chapter in Microsoft, Google, not having influence in the FBI, is moving the world closer to evenhanded application of the rules by both the goverment and private institutions.
Generally I see here people willing to endorse more extreme ways of thinking over being negative, resentful and bitter of groups in a manner that might see as taking a side in the culture war, while their attitute also by default takes a side. Mercy to the guilty is cruelty to the inoccent, but what about not blaming the guilty at all?
I initially had a bigger post talking about the history and how even initially so called civil rights movements had supremacists in charge and in key positions of power. The main difference was that they might have some legitimate grievances too about how some of their favorite groups were treated while after getting their way it is all getting more and more. When the civil rights act was passed Lyndon Johnson was praising Marcuse's as the man whose philosophy reflects it and people like MLK were demanding that USA treats blacks especially better for having treated them in the past especially bad and he and his activists were harassing business to get them to hire larger percentage of blacks and complaining how disparate outcomes were evidence of racism.
But in any case, even if they were more moral in the past which I don't think they were to the extend people think, it doesn't change the current reality.
Progressive supremacists (Jewish supremacists, black supremacists, LGBT supremacists, female supremacists, left wing supremacists that is discriminate in favor of being a leftist) have captured power and are abusing it.
This is only a facet of corruption.
There are others. I fail to see your economic explanation apply to say warmongering in the USA. Where groups like the neocons have captured key positions in American goverment and remain in the key positions as administrations change and are authoritarians who gatekeep and cancel those who aren't neocons. Meanwhile weapon manufacturers have been one of the biggest funders of think tanks. Then there are contractors who make a lot of money in nation building while enriching themselves and local elite collaborators by overcharging and underlivering to the most extreme proportions.
There are plenty of poor communities that behave more morally than richer ones. You might be confusing in some instances the effect of bad behavior to the cause. Behaving in destructive enough manners help perpetuate poverty butt it is possible to be rich and be immoral and even predatory and parasitical.
The people involved with revolving doors in weapon manufacturers, governance, even intelligence services and front groups who promote warmongering are rich and made plenty of money out of this. They are also corrupt. Becoming richer has not made them more moral. Indeed as their method was corruption, it ensures a continuation of it.
Public private partnerships in spheres of medicine with revolving door with big pharma and goverment is also an issue.
Taking very serious agency problems is one way to combat other forms of corruption outside of just the progressive supremacists. Although it is all connected since in addition to intersectionality in ways of other identities, compromise in regards to other agendas and interest of the powerful and willingness to play along is a means for different factions to get their way and promote less conflict in a "bipartisan" uniparty manner.
The dominant ideology and whether institutions tolerate corruption is key. You can have improvement absent mass death, and promoting hopelessness is a cope excuse for being unwilling to name and oppose the corrupt and corruption. Things can always improve and become worse, which relates with whether moral people are willing to behave morally and enforce morality. If they are unwilling and allow immoral people to impose their vision and even strategically demoralize any opposition, well you will see how interesting times can get when people don't try to enforce a better way of doing things.
Of course a certain level of unpleasantness, negativity, bitterness is necessary. Sorry but you can't support being ruled by the reasonable, the ethical, the truthful, the honorable, the restrained, etc, etc, if you aren't unpleasant to the unreasonable, dishonest, unethical and corrupt.
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While this isn't exactly wrong, people tend to invoke it too broadly. Some aspects of the rule are what you say they are, but the rule itself isn't. The rule doesn't let you penalize teams because you didn't drink your coffee this morning and are cranky and decided to subtract points for S&G.
You could have a rule "I am the dictator and what I say goes, so I can penalize someone because I skipped my coffee", but that wouldn't be rule of law, even if it's literally following a rule.
This in turn incentivizes would-be-dictators to make tons of broad and vague rules with selective enforcement. If there is such a byzantine maze of laws that almost never get enforced, then nobody pays attention to them and then everyone ends up technically in violation of some sort of rule. Then the enforcer can pick and choose who gets penalized based on their own internal reasons, but always has some sort of justification in the actual rules to pin it to.
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I think it is important in this context to distinguish between "unlawful" in a criminal sense and "unlawful" in a civil sense. Functionally all criminal laws are written the way you describe. With a list of the prohibited conduct and a range of penalties for doing it. Civil law penalties are more vague because their purpose is to redress some harm that some individual A has caused some other individual B. Legislatures can (and do) pass laws modifying what kinds of damages one may receive when one has been wronged in various civil ways but there is not (by design) as complete a specification as criminal law. Civil law instead relies on the Plaintiff (the person bringing the suit) being able to articulate how much they have been wronged and asking a court for appropriate relief. To some extent we put trust in judges and courts (and a complex system of precedents) to figure out what the appropriate relief is in civil cases.
Lawsuits for violations of civil rights are, in the United States, civil lawsuits and generally are asking courts for (1) damages actually suffered and (2) an injunction against the defendant. The second part is important because it means if the enjoined defendant engages in the described conduct again there can be additional penalties (criminal and civil) for violating a court order, above whatever civil law violations it would also entail.
Circling back to your AA example the Supreme Court's ruling is more like "If You Discriminate On The Basis Of Race We'll Order You To Pay Damages To The People You've Discriminated Against And If This Isn't The First Time We'll Impose Additional And Escalating Penalties."
If they haven't yet, they will be. I think a little civil procedure is instructive here. Before anyone in a civil suit gets ordered to pay anyone else damages you first need to figure out whether the defendant is liable. After a court has made a determination about the defendant's liability, that determination becomes appealable to some higher court (and eventually SCOTUS). On appeal the appellate court doesn't take over the whole case, they are usually only deciding the particular issue being appealed. Afterwards they'll send the case back down to the original court with an order to continue proceedings consistent with their opinion. So SCOTUS's decision was the "end" of the case in the sense it found Harvard and UNC liable and created a national precedent that their conduct was a violation of the student's constitutional rights but it was not the end in a procedural sense. The trial court still needs to actually issue an injunction and figure out how much in damages to award the plaintiffs.
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Well, civil rights law suits against institutions that result in that institution paying large monetary damages have long been a thing. So presumably going forward Harvard can no longer use "targetting diversity" as a defense against such suits?
It's a little curious to me that there was no monetary judgement attached to this case. When a company like coca-cola or Tesla is judged as having acted in a discriminatory manner, they face hundreds of millions of dollars in damages. So why was there no monetary judgement in this Harvard case?
At least in SFFA v. Harvard, the underlying complaint requested :
SCOTUS generally does not answer all questions in a trial (barring a few rare situations where it is the court of first resort); it only resolves questions of law that were appealed to it and the court granted cert. Because questions of law related to attorneys' fees are very settled, that wasn't at question in the SCOTUS case. Instead, this was determined after SCOTUS vacated previous decisions and remanded to lower courts, which found just under 50k USD in costs. We won't know about attorneys fees for a while yet, because the district court gave an extension to October 27th and defendants almost always contest it (you can watch here for updates), but I'd expect that they'll do better than Clement and Murphy in my last post.
So in that sense, SFFA didn't get cash because they didn't ask. But that just kicks the can down the road to why they didn't ask? The Title VI doesn't explicitly authorize private rights of action at all, but the courts have generally allowed compensatory (though not punitive) damages. Some of the why's for legal strategy reasons -- SFFA knew they had an uphill battle without also getting into debates on how much access to Harvard is worth -- but there's also a broader logistics problem.
Courts can issue preliminary injunctions to prevent irreparable harm. And harms that can be compensated are repairable, by definition.
((There are a few exceptions-in-everything-but-name around "dignity" harms, but gfl bringing that here.))
In most cases, this makes sense! But it's a bit of a problem for a case like this one, because Harvard (and other schools) demonstrably care more about keeping The Wrong Sorts Out than the cash, and virtually every case will exceed the length of time that someone can wait to get into college. So SFFA was wagering for future preliminary injunctions in other cases over the (often trivial) compensatory damages in this one.
((In practice, they've lost that wager.))
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A SCOTUS ruling is not a law. However, the constitution is, and it does suffer from the problem you have observed. Except, is it a problem?
"No Soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."
I am not a legal expert, but I think there's nothing in the US Code that explains what the punishment for forcing you to shelter and feed a soldier is. What happens if Major González forces you to shelter and feed one of her soldiers during peacetime? You sue her! Just like the soccer kids, you come up with a punishment you deem appropriate and ask the court to levy it. And the whole judicial process is a solved problem. If Major González is able to avoid trial or punishment, you have bigger problems in the US.
What's the point of laws that include consequences for breaking them, then? When the state itself is a plaintiff you need laws that are written like this to direct the agents of the state that act on its behalf. Why did Hammurabi bother with his code of laws, then? The other point of laws that include consequences for breaking them is simplifying the job of the judges. Common law requires to judges to be aware of existing precedents to avoid unjust unequal verdicts. Having a code of laws for common, typical infractions reduces the burden on the court system.
Should there be a law like this for AA in college admissions, or should there be a bunch of "Wang v. Harvard" lawsuits? I think the latter option is much more American in spirit.
Shelter would probably constitute illegal entry under the Uniform Code of Military Justice, section 929(b). Food would seem to be theft or wrongful appropriation under section 921, or, depending on the facts, robbery under section 922
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There is a third point to having laws that include consequences for breaking them, which I think is relevant in this case. It's to ensure uniformity of treatment, and therefore fairness, among cases. If we end up with a thousand Wang v. Harvards, it could end up that one Wang runs out of money for lawyers and settles for $100, another Wang loses his case due to an incompetent attorney, while a third Wang gets an eight-digit payout. All while a thousand other Wangs go about their lives completely aware that they had the ability to sue. We know from criminal studies that certainty of being caught (and therefore punished) is more important for deterrence than the magnitude of the punishment, and if instead of having a well-known penalty, Harvard is playing the roulette wheel every time they do a discrimination, the deterrence factor is much smaller.
I agree that a massive sue-fest is hyper-American and it appeals to me on a gut level, but I'm not sure the benefits outweigh the way that it obscures what the EV of discriminating is.
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I think your hypotheticals perhaps obfuscate more than they clarify. The reason the penalty was unclear in those hypotheticals is because, in each, there rules were new (in the soccer example) or had rarely been adjudicated (in the pine tar incident), so there was no existing body of law for the adjudicator to turn to to determine the penalty. In contrast, re criminal law, the penalties are always stated in the statutes, and in civil litigation, the body of law re remedies is large enough that law schools offer entire classes on the subject
You are not correct, or if so are only very technically correct in that I do not know if there has been a remedy announced yet. When a trial court rules against a plaintiff, as the trial court did in the Harvard and UNC cases, but the decision is reversed on appeal, the case goes back to the trial court for further proceedings. The precise further proceedings depend on whether the appeal conclusively decided the case for the defendant*, but if it did, the lower court would conduct proceedings on remedies. See, eg, the football coach school prayer case, which settled 9 months after the Supreme Court's decision
And, note that sometimes plaintiffs do not seek damages (or only nominal damages, like $1), but rather only an injunction. I don't know that any damages were sought in Brown v, Board of Education, for example. That was not the point of the lawsuit.
*If the case was dismissed at an early stage, it might still be unclear whether the plaintiff's case has merit.
But it doesn't have to be that way. There's nothing about the nature of laws that requires new laws to omit penalties. The preschool teacher could have provided a penalty when explaining the rules. The fact that they didn't mostly just shows that they are not a good rule writer. This is fine for a soccer game, but for matters of law, we want good rule writers who don't neglect to specify a penalty for breaking their laws.
Why should we wait for adjudication to determine a penalty? Why can't the original writers of the rule specify their own penalty? We can't expect perfection, but we should at least prefer better to worse. The pine tar incident is a good example of the flaws of waiting for a ruling to establish a law. When faced with the vague law, the umpire chose a penalty that sounded good to him (the home run doesn't count), which was a pretty clearly bad ruling that caused a bunch of consternation and unhappiness.
So if I understand you correctly, at this point in time we don't know what the penalty for breaking the "no discrimination" law is, only that the Supreme Court has decided that the "no discrimination" law has been broken. If/when the trial court reaches a verdict in those cases, would that create a precedent for what the penalty is? Or is the meta-law simply that trial courts determine penalties on a case-by-case basis based off what they think is fair? I ask as someone who has very little clue about how the legal system really works.
That is my point. It ISN'T that way, which is why your hypothetical is not particularly germane.
Again, that is what authors of real laws usually do.
No, that is not quite right. We know what types of remedies are available for torts. That is quite well established. What we don't know is what the damages will be in this particular case. Eg: if I am wrongfully denied admission to Harvard, and have to go to Purdue instead, then my damages would be something like the present value the difference between the income I am likely to earn in my life as a Purdue grad versus what I likely would have earned as a Harvard grad. And that, of course, depends on things like my major; if I am a Social Work major, then my damages are going to be less than if I am a Business major, and if I am a Civil Engineering major, I might have no damages at all.
It's not just that we don't know what the damages will be in this specific case, it's also that we don't know what the damages will be in the generic racial-discrimination-in-university-admissions case. At best, we know that the penalty in this case will be a subset of the remedies in tort law, and that in future cases like this one, the remedies will also be a subset of the remedies in tort law, though not necessarily the same subset. This is only slightly more helpful than not knowing anything at all. Knowing that the available remedies for torts are X, Y, and Z is like knowing that the remedies for a foul in soccer are free kicks, penalty kicks, yellow cards, red cards, lifetime ban, etc. The part that you really want to know is what the algorithm is for figuring out which of those remedies applies in any specific case.
Is this a statement of what you think will happen or is this what you think should happen? That is, do you think that as of this ruling, every White and Asian person who has been rejected from any AA-practicing university in the past few decades will be able to sue successfully for monetary damages equal to the drop in expected earnings they suffered? Alternatively, is there established tort law that says "when a university wrongly denies admission to someone, the damages are to total the loss in expected earnings, no more, no less"?
The reason I'm trying to nail down a specific penalty is because it sounds like the current system is a judge flipping a coin to decide whether to take your case and then pulling a number out of an ass for the damages, which is very much The Rule Is Whatever I Say It Is Because I Am In Charge.
I can assure you that that is not the case. First of all, why you think courts have discretion not to take a case is beyond me. As for damages, there are entire books published on the subject of tort damages and a whole slew of jury instructions on the topic. And see here:
Why wouldn't every decision apply retroactively? When a court interprets a law in a precedent-setting way, isn't the idea that the law is and has always been that way, and that earlier courts had simply gotten it wrong? If this specific case of SFFA v. Harvard had featured a specific plaintiff, wouldn't that person be entitled to damages? If so, why that person and not others? It seems to me that all decisions of this nature must be applied retroactively by virtue of the fact courts typically rule on events that happened in the past.
That's fair. We can limit it to the last few years. I don't think this changes much.
This takes me back to my original point, which is that if this is truly the case, then the law isn't If You Discriminate On The Basis Of Race Then You Have To Pay That Person Some Amount of Money. It's If You Discriminate On The Basis Of Race Then Nothing Happens To You Because No One Person Can Prove Anything. I appreciate you educating me on tort law (I mean this sincerely; sorry if I come across as combative but I do appreciate the lesson on something I know very little about) but it's kind of irrelevant if we never get to the point where damages are being calculated.
That said, is the standard of proof really that an applicant has to show that they would have been admitted but for their race? For employment discrimination, as far as I'm aware, you don't have to prove that you would have been hired/not-fired but for your race/sex/etc. You only need to prove that your protected group status was a significant factor in the decision. Is university admissions different, and if so, is that difference spelled out in law?
Maybe "take a case" is not the step where attempts at justice are thwarted, but my impression is that it is often the case that people are in theory legally entitled to some compensation but cannot reach the point where a court issues a decision on their complaint. My point is that in order for "AA is illegal" to be true, there must be a reliable way for an entity that engages in AA to be penalized for that violation, and from what you said and what I see, it doesn't look like that will be the case.
There are many attorneys who make a very good living representing victims of illegal discrimination. Moreover, class actions are often an option. Were there truly no remedy, defendants would not settle suits. But they do.
And note that attorneys fees in successful civil rights suits, which are paid by defendants, can often be much greater than the damages. https://en.wikipedia.org/wiki/Uzuegbunam_v._Preczewski
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In a country where the constitution is broadly interpreted as allowing or forbidding (or requiring) a huge number of things, the body that ultimately interprets the constitution (ie. SCOTUS) is by far the most powerful political body. The one limit on its power is that it can’t directly enforce its decisions without the support of the other arms of government. If you allow SCOTUS enforcement powers (which essentially amounts to control over the police, intelligence, and the military) then you have turned the US into an interesting form of quasi-democracy in which a panel of absolute rulers who govern based off interpretation of scripture are elected for life by the senate on a rolling basis.
Personally I think that would be a better political system, but it isn’t our political system. As @RandomRanger has said, SCOTUS has afforded Congress the ability to devise a system whereby unconstitutional behavior around affirmative action is subject to criminal punishment. Will that happen? Of course not. Currently, the threat is more that a future GOP executive could possibly take some actions via the Education Department against non-compliant universities, or that civil suits could result in expensive damages.
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Courts really need legislative or executive support to punish things, as opposed to merely rendering them "illegal". I'd levy a big fine, like the EU does against tech companies that it dislikes. They just pick a number - $5 billion dollars plus after 90 days 5% of daily revenue unless they stopped bundling google search with android phones...
Of course, in the EU they know that legislators have their backs, they're united on this issue. I doubt it's the same in the US re affirmative action. The court is basically saying "if legislators want to set out a law to ban this stuff, we have your backs", they don't feel confident enough to go out alone. It's not really in the spirit of separation of powers for them to act alone. Likewise, Trump couldn't execute a travel ban, he faced suppression from the courts.
Just like Hanania's posts/book about US civil rights being interpreted into what they are today, it's the executive agencies and legislation alongside the legal decisions that make things actually happen.
In the US, legislative support for the ruling itself is irrelevant, as when a court makes a ruling, it is basically saying "The law as written is properly interpreted like this. If you don't like it, write a better law." The way that a legislature that disagrees with the ruling would overrule the court is by rewriting the appropriate law.
The executive branch, on the other hand, does have massive power to overrule the courts with immediate effect. John Marshall has made his decision, now let him enforce it. My take is that when this power is used as often as it currently is, it's a bad thing for the same reason that The Law Is Whatever I Say It Is Because I Am In Charge is a bad thing. I'll have to check out Hanania's writings.
My point is that they can only do this if there's a law or decision to interpret and they feel confident they won't just get hammered. Like you say, there's no law that says affirmative action is illegal, no clear notion of what the punishment should be, no guidance as to what should happen. They can reinterpret but it's hard to reinterpret standard and continuing practice into illegal, fineworthy, jailworthy crimes.
In Australia we had a case that would've cost the WA govt billions so they legislated to prevent the payout. Courts generally don't want to make judgements that will then get rendered irrelevant by the legislators.
There is. Title VI of the Civil Rights Act. Same law that protects blacks against discrimination also protects whites and Asians. It's just that the courts apply totally different standards depending on the race of those being discriminated against, while claiming otherwise.
Only de jure, as you say. It was devised not to protect Whites or Asians but to advance blacks, women and so on, so there's a logical consistency there. Intention and use were aligned. The court would not just be implementing what the words say, they're changing the fundamental meaning of the law even as everyone pretends it stays the same. I guess if we looked around we could find some case where whites were protected by the law (was there some case in Hawaii) but by and large that's not the function or goal.
This is on a different level to ruling that fish are bees or whatever for the purposes of some biodiversity preservation law, even though that's a huge change of factual content (and logically bizarre). They really need commitment from the other branches of govt to make such a meaningful change and get it to stick.
There's no change in saying those laws protecting everyone. The Fourteenth Amendment and the Civil Rights Acts would never have been passed if they were written to protect "only the blacks", and the Supreme Court has consistently held that they do, in fact, protect everyone. That is what the words said, that is what was intended. A claim that "No individual, on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination in, a Federally conducted education or training program or activity" means "Well actually it's OK to discriminate as long as it's against people of the majority race, the less-fair sex, the lighter color, domestic origin, able-bodied, Christians, or heterosexuals" is at least as crazy as "a bee is a fish".
But the outcome is massive and blatantly obvious affirmative action that favours non-whites and harms whites. Corporate America somehow managed to hire 94% nonwhite in 2021! You see all these HR people openly admitting what that they've been doing it and nobody seems to leap on this illegality. Because it's not de facto illegal.
The Soviet Constitution might promise you all these beautiful rights. They may be written in black and white. It might even be legally binding, it might technically be the supreme law of the land. But Stalin can wipe his ass with it every day of the week and your peers will laugh (quietly inside their heads) if you want to use it to defend yourself against the NKVD. Ultimately, the people who commissioned and made it wanted to make it look good to foreigners, not for it to actually act as a constitution. It had little or no relevance to the administration of the USSR.
Even if the law as written protects whites, there's a partiality in people's heads where they know what is or isn't typically a hate crime, what equal opportunities mean, what sexual harassment is, where the standards of proof should be. Law is implemented by men, not words on paper and what's inside their minds takes on paramount importance. It is possible to change people's minds and reeducate them but it takes time and unity from above. Judges are not out of sync with the legislators, they're not just suddenly deciding to interpret against the text, they run in the same circles and execute the meaning of the law as they understand it, not the letter of the law. If their interpretation was actually against what the legislators (as a collective) wanted, the legislators would change it.
The legislators can only change the law de jure. Changing the law de facto can only be done by the executive and to a smaller extent the judiciary. The court is NOT saying "if legislators want to set out a law to ban this stuff, we have your backs". The court is saying "legislators have ALREADY set out a law to ban this stuff". The court merely lacks the power to enforce its decisions against the obstinacy of the executive.
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