As I like to tell my students, I consider my Law and Policy class effective if, after taking it, they use two phrases more frequently than they did before they enrolled: “it depends” and “it’s more complicated than that.”
That measure of effectiveness would undoubtedly be incomprehensible to the voters who installed as President of the United States a man who had neither experience with nor even a rudimentary understanding of government. Evidently, people who would agree that doctors need to attend medical school and serve a residency in order to treat the complexities of the human body think managing an organizational behemoth responsible for the common lives of over 350 million people can be handled by anyone able to fog a mirror and regurgitate talking points.
When Republicans look at what they’ve gotten out of their current moment of unified government, they can point to cutting corporate taxes, some judicial appointments and … not much else. Beyond that, they claim that they’ve teed up the economy for explosive growth through the magic of “deregulation.” But deregulation is a term that should be banned from the nation’s policy lexicon, mixing as it does equal parts wholesome and foul — in this administration, almost exclusively foul.
As they proceed to explain, whether rolling back a given regulation will be helpful or damaging depends on the nature and purpose of the regulation. It’s more complicated–much more complicated– than the one-size-fits-all “get government out of the way” zealotry that has increasingly characterized the GOP.
The wholesome justification for deregulation arises when government uses its power in ways that gum up the dynamic power of markets. In the long run, our nation’s wealth and the opportunity it provides for improving quality of life depend on the forces of creative destruction. In competitive, open markets, incumbent actors cannot prevent challenges from more nimble competitors, armed with new products or more efficient ways of organizing the production process.
The authors identify a number of regulations that do “gum up” markets, and agree that eliminating or relaxing them would be healthy for the economy and likely to reduce the growing gap between the rich and the rest.
They also note that those aren’t the regulations being eviscerated.
Unfortunately, this is not the kind of regulation that the Trump administration has been attacking. Instead, it has been sharpening its knives for precisely the kinds of regulation that, far from distorting markets, help to improve them. In particular, regulation is often necessary to a properly functioning market when, in its absence, businesses can make a profit by pushing costs onto others, in effect forcing others to subsidize their bottom line. In two areas, the environment and finance, these are exactly the sorts of market-improving regulation that the administration has put in its cross hairs, with the effect of increasing profits via freeloading.
In an article in the New York Times, Lindsey and Teles make the point that there is a critical difference between regulations that operate to protect dominant business interests and regulations that legitimately, if often imperfectly, address real problems of market failure.
Effective deregulation requires knowing the difference.
For that matter, effective government requires public managers who respect evidence, are committed to the common good, and understand how our complicated government works. The looters who are currently in control of all the levers of the state don’t come close to meeting those criteria.
The purpose of Memorial Day is to remember–memorialize– those who died in active military service to the country.
As we contemporary Americans enjoy our beers and barbecues, perhaps we should take a few minutes to consider what national characteristics and ideals have been considered important enough to merit that ultimate sacrifice. (It’s a holiday; we can postpone consideration of how frequently we’ve fallen short of those ideals to another time…)
Liberty and equality are often said to be the basic American values. The nation’s founders defined liberty as personal autonomy–your freedom as an individual to “do your own thing,” so long as your “thing” wasn’t harming the person or property of someone else, and so long as you were willing to accord an equal liberty to others.
In other words, live and let live–at least up to a point.
Americans have often disagreed about what constitutes harm and about the proper limits of government’s power, but generally within the confines of that libertarian definition. The nation’s courts have increasingly taken a dim view of government efforts to intrude into matters that are properly the purview of personal conscience and individual decision-making.
Since the Bill of Rights only limits what government can do, arguments against improper exercises of private power must rest on consistency with our national values unless they contravene some affirmative law.
Which brings me to the NFL, and its recent decision to require players to exhibit public behaviors that team owners and our ignoramus President deem “patriotic.” The NFL is not government; as private employers, owners cannot violate the First Amendment. They can, however, demean its principles and the very concept of patriotism. And by imposing a rule that government could not constitutionally impose, they have.
A few observations:
The “fans” who have declared themselves so offended–who claim that “taking a knee” is “disrespectful” to the flag and unpatriotic–haven’t complained about the longstanding forms of “disrespect” that routinely occur during the national anthem: food vendors hawking, large numbers of attendees ignoring the ceremony and talking, etc. Nor have they mounted an effort to ban flag bathing suits and bandanas, or protested when some civil war apologist displays the confederate flag. So you’ll excuse me if I conclude that their real objection is to black athletes having the temerity to (quietly and yes, respectfully) protest police brutality toward African-Americans.
Genuine patriotism expresses itself by fidelity to the principles upon which this country was founded. Among the most important of those principles are freedom of speech and conscience, and civic equality. The soldiers we memorialize today didn’t fight and die for a piece of cloth; they were defending the principles that the piece of cloth symbolizes. The player protests are consistent with those principles; the NFL rule is an expression of contempt for them.
The exercise of power doesn’t change hearts and/or minds. If human history teaches us anything, it is that coerced expressions of religious belief or patriotic allegiance are not only inauthentic but counterproductive. Forcing children to recite a prayer in school doesn’t make them religious; forcing grown men to forego public expression of their grievances doesn’t lessen the grievance.
The NFL has caved in to the bullying of a racist President and the noisy anger of his rightwing base. It will be interesting to see the reaction to this rule from people who understand genuine patriotism to require respect for the rights of players to express opinions with which they may or may not agree.
Noise, after all, doesn’t equate to numbers, and I’m willing to bet that the people disgusted by the NFL’s cowardly effort to placate phony “patriots”outnumber those noisemakers by a substantial margin.
If the NFL owners lose more business than they gain, it will serve them right. Their brand of “patriotism” dishonors the flag they purport to be respecting.
Friday night, I spoke at a local synagogue about women’s rights. They were very nice to me. Here’s my talk. (Apologies for the length.)
___________________________
I don’t know how many of you remember when it was considered tactful to refer to older women as “women of a certain age.” I’m one of those women, having attained and then passed that “certain age,” and I’ve seen a significant evolution in women’s rights in my own lifetime. Not too long ago, someone asked me if I had experienced discrimination because I’m a woman. I responded that I’ve really been lucky; I’ve been able to do pretty much anything I wanted to do. But when I began to think about it, I realized that my entire life has played out against the restrictive laws and patriarchal social expectations of the times. A number of options that were available to males simply weren’t options for me. As noted, some of those options were legally unavailable, but many other limitations were products of prevailing, deeply-rooted social attitudes. To the extent women accepted those attitudes, we didn’t see discrimination—we just saw “the way things are.”
My mother—who was born the year women finally got the vote–didn’t work, although she was a woman who would definitely have been much happier pursuing a career. But for middle-class women, participation in the workforce was seen as evidence that one’s husband wasn’t an adequate breadwinner—so it wasn’t an option.
When my sister and I were in grade school and high school, there were no women’s sports. Girls were cheerleaders, boys played team sports. When I went to college, my parents wanted me to choose a profession I could “fall back on” if my eventual husband died. I could choose among the three professions suitable for women—I could be a teacher, a nurse or a secretary. Three times in college, I switched into the school of Liberal Arts, and three times my father switched me back into the School of Education. (I get nauseated at the sight of blood, and I was never a good typist—so voila—I was a teacher!).
When I got married the first time, women still couldn’t get credit or establish a credit rating separate from that of their husbands. Later, when I went to law school, my sister’s brother-in-law told me I should be ashamed that I was taking the place of a man who would actually practice law. A cousin who was a lawyer was more supportive; he told me that if I really excelled, I would probably get hired, but the only lawyer job I could expect would be in the “back room” of a large firm, doing research. I wouldn’t be allowed to work directly with clients. A “friend” told me that my selfish decision to go to law school meant that my children would end up being drug addicts.
When I was interviewing for my first job as a lawyer, the EEOC was only a few years old, but lawyers at the firm knew that certain questions were off-limits. I had three small children, a fact disclosed by my resume, so I volunteered my childcare arrangements. (It seemed reasonable.) One of the lawyers was so visibly relieved that I evidently wasn’t going to burn a bra then and there that he blurted out “Not that there’s anything wrong with being a woman! We hired a man with a glass eye once!”
When Bill Hudnut appointed me Corporation Counsel, I was the first woman to head the city’s legal department. That deviation from the norm evidently triggered a lot of speculation. The Indianapolis Star identified me as a “divorcee” and the Indianapolis News ran a “gossip” item, asking “Did a city official just appoint his most recent honey to a high city position?” Evidently, the notion that a woman might be a good lawyer never crossed their minds.
When I ran for Congress in 1980, I was told by a number of people that they wouldn’t vote for a woman with young children, because my place was at home with those children. (I don’t need to remind you that men with young children are never the subject of similar sentiments—nor do I need to share my strong suspicion that they wouldn’t have voted for any woman, with or without small children.) When I joined a small law firm after losing that election, one of the partners suggested that I stick to wills and divorces, which were areas deemed appropriate for women lawyers. That actually represented progress, since by that time there were at least some limited areas in which it was acceptable for women to be lawyers …
Virtually all of these examples seem ridiculous today, when girls excel at sports and law school classes are more than 50% female. So there has been progress—actually, a lot of progress. I am always bemused when female students assure me that they aren’t feminists—a word that some of them evidently associate with beefy women who don’t shave their legs. The young women who don’t think of themselves as feminists simply take for granted that they will get equal pay for equal work, that they won’t have to “put out” for the boss in order to get that promotion, that they can choose the number and spacing of their children, and that there might even be a pediatrician whose office hours don’t reflect the assumption that mom is home all day.
As the commercial says, we really have “come a long way, baby.” But as the “me too” movement, the persistence of the glass ceiling, and depressing statistics about earning discrepancies all attest, we still have a long way to go.
And that long way to go was before the hard-won gains for women’s equality came under sustained attack. At the Women’s March, an elderly woman carried a sign saying “I can’t believe I’m still having to protest this shit.” A lot of us old broads feel that way.
The unremitting attacks on Planned Parenthood are particularly troubling, because women owe an enormous amount of our progress to the availability of reliable birth control. Only when we are able to plan our families, only when we are able to be more than baby factories, is it even possible to talk about having both a family and a career. Once women were in control of their reproduction, they entered the labor market in huge numbers, and became less economically dependent upon their husbands. A woman with a decent job could leave an abusive or unfulfilling relationship and support herself. Economic independence is the first step toward equal treatment, and the ability to decide for ourselves the number and spacing of our children is what makes economic independence possible.
That independence is also what has triggered the backlash we are experiencing from insecure men and especially from the Christian fundamentalists who believe that God made women to be submissive to men. Let me be very clear: there are sincere and admirable people who have principled objections to abortion—but anyone who believes that the anti-Choice movement and the assaults on Planned Parenthood are really about abortion is naïve. The real focus of this attack is on access to birth control and self-determination. It is an effort to deny the equal moral status of women. Let me share just one illustrative example—there are many, many others.
In 2009, the Susan Thompson Buffett Foundation donated over $23 million to the Colorado Family Planning Initiative. That was a five-year experimental program offering low-income teenage girls in the state long-acting reversible contraceptives—IUDs or hormonal implants—at no cost. These devices, which require no further action once inserted and remain effective for years, are by far the best method of birth control available, with less than a 1 percent failure rate. (The failure rate for the Pill is higher.) One reason more women don’t use these devices is cost: While they save the patient money over time, the up-front price can be as high as $1,200.
The results were staggering: a 40 percent decline in teen births, and a 34 percent decline in teen abortions. And for every dollar spent on the program, the state saved $5.85 in short-term Medicaid costs, in addition to other cost reductions and the enormous social benefit of freeing low-income teens from unwanted pregnancies and what too often follows: dropping out of school, unready motherhood, and poverty.
When the original grant ran out, the state legislature had to decide whether to continue funding the program. Now, you would think continued funding for so successful a program would be uncontroversial–but you would be wrong. The bill continuing funding for the program passed the Democrat-controlled House, but the Senate Republicans killed it.
And what were the highly principled reasons for refusing to continue a program that reduced teen pregnancies, reduced the number of abortions, and saved money? According to one Republican State Senator, using an IUD could mean “stopping a small child from implanting.”
Another said, “We’d be allowing a lot of young ladies to go out there and look for love in all the wrong places.”
If these lawmakers were really “pro-life,” they would support programs that substantially and demonstrably reduce the incidence of abortion. As the travesty in Colorado clearly shows, however, their real objective is to deprive women of self-determination. If necessary, at taxpayer expense.
A full list of the ongoing assaults on birth control and reproductive rights, from the Hobby Lobby decision to Mike Pence’s effort to require funerals for miscarried fetuses to the constant efforts of state legislators around the country to outdo each other’s transvaginal probes and other punitive measures would take hours. Just in Indiana, the ACLU is currently challenging at least three anti-choice laws. I want to believe that what we are seeing is a last convulsion of old men who are frantic to retain their male privilege…but the jury is still out.
The ferocity of the pushback against women’s autonomy and reproductive rights is particularly dangerous to those of us in the Jewish community, because it represents the belief that fundamentalist Christian dogma should be the law of the land—that government should favor the beliefs of one segment of the Christian community over the theologies of other religions and other Christians.
One reason that the United States has been hospitable to Jews—and Muslims and Sikhs and other minority religions—is that the Bill of Rights not only separates Church from State, but forbids government from making decisions that are properly left to individual citizens. As I tell my students, the Bill of Rights is essentially a list of things that government doesn’t get to decide. The American constitution and legal system are based upon respect for personal autonomy and the primacy of the individual conscience—not upon conformance with majoritarian religious beliefs. I don’t think it is an accident that so many of the “family values” politicians who seem intent upon keeping women barefoot and pregnant are also anti-Semites who insist that the United States is a Christian nation.
Opponents of measures requiring equal pay for equal work, pundits who excuse predatory sexual behavior in the workplace (or by the occupant of the Oval Office), voters who reject female candidates for public office simply because they are female, and the politicians and public figures who talk about “making America great” like in the “good old days”—want to take us back to a time when women’s voices were discounted and our aspirations ignored. They want to go back to the “good old days” when women were second-class citizens—a time when being a straight white Christian male conferred automatic social dominance.
I lived through those “good old days.” They are the days I described at the beginning of this talk. They aren’t the reality I want my granddaughters—or my grandsons—to inhabit. We all deserve better.
As I often try to explain to students, there is an important difference between rights and privileges. The essential element of the rule of law–the characteristic that distinguishes it from the exercise of power–is that the same rules apply to everyone. If everyone doesn’t have rights, no one does. Some people may have privileges, but that isn’t the same thing.
The deal is, the person engaging in free speech who is saying something with which you disagree has the same right to voice his opinion as the person with whom you agree. If we don’t all play by the same rules, if some people have more “rights” than others, no one really has rights. They have privileges that can be withdrawn if they offend or oppose those in power.
The rule of law is fundamental to a constitutional government. It is glaringly obvious that Donald Trump does not understand either its definition or its importance. It is equally obvious that he wouldn’t respect it if he did. Like most autocrats and would-be autocrats, he is all about self-aggrandizement, the exercise of power and the ability to reward his friends and punish his enemies.
Trump’s lack of comprehension of, or respect for, the rule of law is one of the many reasons he is so unfit to hold public office.
What triggered this rant was an article about Trump’s decision to impose tariffs on steel and aluminum–a decision he has evidently been reconsidering in recent days. (When your policy pronouncements emerge from impetuous impulses rather than considered analyses, they do tend to change on a day-to-day basis…) The article described the proposed tariffs and their potential consequences, and reported on the number of U.S. companies that were scrambling to win exemptions to them.
As of the time of the article, the Commerce Department had evidently received 8,200 exemption requests.
Let’s deconstruct this.
Assume you owned a company that relied upon imported metal to manufacture your widgets. The government moved to impose tariffs, which would increase your costs and make your widgets less competitive with the widgets manufactured in other countries. Assume further that you applied for an exemption from the new rule, based upon some tenuous argument or plea of hardship. Wouldn’t you be likely to do whatever you could to curry favor with the administration dispensing those exemptions? You’d almost certainly dig deep to make a political contribution.
“Pay to play” is, unfortunately, nothing new in American politics. Engineers and others who bid on government projects know that a history of political donations may not be enough to get them the contract, but is necessary to ensure that their bid is one that will at least be considered.
That said, unsuccessful bidders who believe that a contract has been awarded to a company that didn’t meet the statutory criteria–a donor whose bid was not “lowest and best”–can sue. And win. It happens more often than you might think.
Of course, the ability to sue and have your complaint judged fairly requires that the country’s judicial system be both impartial and competent. That’s one reason this administration’s rush to fill judicial vacancies with political cronies is so pernicious.
In places where government agencies can confer benefits at their discretion–routinely the case in autocratic regimes–and there is no legal recourse, corruption is widespread and inevitable. (See: Putin’s Russia) Quid pro quo replaces rule of law.
That’s the path America is on right now. If the GOP enablers in Congress survive the midterm elections, the prospects for turning things around will be very, very dim.
Currently, there are three important issues on which there is scientific consensus but controversy among laypeople: climate change, biological evolution and childhood vaccination. On all three issues, prominent members of the Trump administration, including the president, have lined up against the conclusions of research.
This widespread rejection of scientific findings presents a perplexing puzzle to those of us who value an evidence-based approach to knowledge and policy.
Agreed. So far, so good.
The author of the piece, a psychologist, then notes that many people resist complexity and shades of gray; they live in an either-or, black or white universe, and are extremely uncomfortable with “non-dichotomas” thinking. He notes that this characteristic is a factor in depression, anxiety, aggression and, especially, borderline personality disorder.
In this type of cognition, a spectrum of possibilities is divided into two parts, with a blurring of distinctions within those categories. Shades of gray are missed; everything is considered either black or white. Dichotomous thinking is not always or inevitably wrong, but it is a poor tool for understanding complicated realities because these usually involve spectrums of possibilities, not binaries….
In my observations, I see science deniers engage in dichotomous thinking about truth claims. In evaluating the evidence for a hypothesis or theory, they divide the spectrum of possibilities into two unequal parts: perfect certainty and inconclusive controversy. Any bit of data that does not support a theory is misunderstood to mean that the formulation is fundamentally in doubt, regardless of the amount of supportive evidence.
Similarly, deniers perceive the spectrum of scientific agreement as divided into two unequal parts: perfect consensus and no consensus at all. Any departure from 100 percent agreement is categorized as a lack of agreement, which is misinterpreted as indicating fundamental controversy in the field.
The article goes on to explain that people whose minds work this way will latch onto any anomaly or disagreement, any “non-consistent” factoid, as confirmation that the entire theory–evolution, climate change, the efficacy and safety of vaccination–is bogus.
Where I part company with the author is his willingness to see this “conceptual approach” as a sign of a mental mal-adaptation, an indicator of other (generally mild, but troubling)mental illness. Although I’m certainly willing to concede that this may sometimes be the case, a couple of other explanations are more consistent with Occam’s razor– the principle that, when presented with competing hypothetical answers to a problem, one should select the answer that requires the fewest assumptions.
In other words, simpler is likelier.
Among the elected officials who dismiss climate science, for example, are a significant number whose campaign coffers are regularly replenished by fossil fuel companies. I suspect these lawmakers’ expressed opinions are more convenient than real.
And if I may be permitted a decidedly un-politically-correct observation, a genuine inability to understand the difference between the scientific method and religious dogma–the inability to recognize the difference between empirical evidence and a preferred and comforting world-view– may be a sign of limited intellectual capacity.
In other words, these people aren’t mentally ill. They’re just not very smart.
