Barely Legally

confessions of a moot court bailiff

Same as It Ever Was

NPR interviewed President Obama about the progress the country has made in his eight years as president. The whole thing is an excellent read, but you have to appreciate how Steve Inskeep and crew did their homework. This question kicks off my favorite exchange:

As part of this project, we also had a look at your 2008 campaign speech in Philadelphia about race in which you talked in one passage about anger in the black community, which you said is sometimes counterproductive but it’s real and there are reasons it. There’s another passage which I hadn’t even noticed before, in which you say there is a similar anger among some in the white community who don’t feel particularly privileged by their race and do feel frustrated that they’re losing jobs, losing pensions, feel like they’re losing ground.

Looking back, were you describing there the same force that is driving much of our election discussion here in 2016?

Before I let the President respond, I’m going to throw a link here to the excellent NPR podcast Code Switch, whose first episode featured the line “when you’re used to privilege, equality feels like oppression.” Strongly recommended.

Anyway, Mr. POTUS. Did you realize white people would maybe go crazy back in 2008 when half the electorate thought you were Muslim?

Well, not only the election and discussion driving 2016; this has been an ongoing theme in American history. You can go back and during Jim Crow and segregation and you’ve got black sharecroppers who have nothing and alongside them, poor white farmers who don’t have that much more except for the fact that they’re white. And the degree to which a lot of politics in the South were specifically designed to make sure that that sharecropper and that white farmer didn’t get together to question how the economy was structured and how they both could benefit, that’s — that’s one of the oldest stories in American politics.

So — so it’s not surprising that what I said in 2008 still holds true today. It was true for a long time.

Safe to take that as a “yes.”

Gentrification and Affirmative Action

Rachel Cassandra, writing for The Bold Italic, is Sleeping with a Gentrifier. Overall, I really enjoyed Cassandra’s essay about the guilt caused by simply participating in San Francisco’s broken real estate market. However, the way she starts her essay is a little confusing.

I first lived in the Mission 10 years ago. I had holes in all my clothes, a neon-pink studded belt I’d altered with silver rivets and an aimless existence loosely centered on rejecting authority and oppressive systems. With my index fingers, I bang-typed magical-realism stories on my manual typewriter, then Xeroxed them into zines alongside collages with lesbian-feminist messages. Over the next few years, my hair alternated between shaved, Mohawk’d and unevenly cut with children’s scissors.

My rotating housemates included a transgender woman from Iowa, a Goth-chick sex-addict catering server and a dreadlocked anarchist Internet hacker. We spent many Sundays hungover eating brunch at the Mexican restaurant on our corner, speaking in Spanish to the family who ran it. We weren’t Latin American like the families around us, but we tried to respect the neighborhood ecosystem. We felt safe, but two times I was walking with a housemate when someone assaulted her. Arriving home, we’d smell when the crack dealer had just come through. At some point, I couldn’t afford the $450 rent and shared a bed with a housemate. It was 2005. The social media tech boom was still in the womb of San Francisco’s fattening belly.

Here’s my question, though: weren’t you and all your friends gentrifying San Francisco back then? If you couldn’t afford the $450 rent, is that maybe because it kept going up? Maybe there were some new amenities catering to the servers and hackers and essayists.

Cassandra’s essay is wonderful and brutally honest and self-reflective, and I’m absolutely as guilty as she is—albeit on the opposite coast—of participating in a gentrifying real estate market, and all that implies for people less socioeconomically well-off than me. I hope in ten years I’ve grown as much as she has in the past ten; it’s just odd that she indicts her current self but gives her past self a free pass.

On a related note, here’s Tom Ley writing about how awful male writers are, and why they nonetheless get away with being awful despite the fact that women can’t write two sentences without being pointlessly critiqued by a man. Fancy that. He begins by quoting an unbelievably absurd passage by a male essayist, and then tears it apart:

But there is that passage, a piece of bad writing—not bad because it is a bit purple or self-absorbed, but because it is dishonest and obscurantist. It uses the forms of confession and introspection to do the opposite, to gesture vaguely at something even as it labors to conceal it. The passage spreads a fog over all the rest of Phillips’s ocean of observational storytelling: He is on a journey to find answers, but he cannot even bring himself to think about the questions. An editor could have tossed that bit, which purports to be the heart of the story, into the trash can and the reader would have been none the wiser.

You’ve got to read the passage; I was convinced it was satire.

See how I put those two links after one another? Look at how self-aware I am! Need more proof that I’m not one of Those Men? Noted female writer Jia Tolentino published my favorite essay of the week, All the Greedy Young Abigail Fishers and Me. On the heels of this week’s Supreme Court ruling that ‘yes affirmative action college admissions are still Constitutional thanks for asking,’ Tolentino writes about her shameful days as a tutor and adroitly describes the racism institutionalized by our primary education system:

Texas parents—as ability permits, and like parents throughout the country—pay good money to live in good school zones. These schools are “good” in a double and mutually reinforcing sense: they are academically vibrant, supportive, and competitive; they also draw from a wealthy population, which means most of the students are white. As Abigail Fisher’s case, a.k.a. Becky With the Bad Grades v. UT Austin, reminded us: the top 7 percent (formerly 10 percent) at all Texas high schools get admitted to UT’s flagship campus automatically. This means that a second-rate student at a first-rate school, a.k.a. an Abigail Fisher, does not automatically get in. This means that a portion of white kids don’t get the educational success those property taxes were supposed to pay for. The 10 percent policy is implicit discrimination against “good schools,” the party line goes.

Most of the UT student body gets in through the Top 10 rule. The rest—approximately 8 percent, the year Fisher applied—are admitted through a holistic evaluation process, which takes into account things like extracurriculars, leadership, personal essays, and race. This is the part of UT admissions policy that Fisher’s case was challenging. Note that it was easier for her (or the anti-affirmative-action zealot who bankrolled her) to take a margin of UT admissions to the Supreme Court than to envision a version of justice in which she had, along with 92 percent of admitted students, straight-up earned her way in.

Fisher’s case was extra galling because UT denied admission to 168 black and Latino students with better grades than her that year. Tolentino’s firsthand look at the entitlement of the white people involved in the Texas educational system is fantastic.

Just How Many Dogs Do American Cops Kill?

David Meyer Lindenberg, writing for Mimesis Law, on the rather high number of dogs killed by American police every year. The other surprising thing:

The police penchant for shooting dogs gets totally inexplicable when you realize that not one cop has been killed by a dog in the past 80 years. According to the Officer Down Memorial Page, the last cop to die in this way was Officer Jackson Bennett of Gainesville, FL, who was bitten by a rabid street dog while on patrol and died April 27, 1936. Domesticated dogs haven’t killed anyone in at least the last century.

A century! That can’t be true, can it?

Published in the news on

How American Politics Went Insane

Jonathan Rauch in The Atlantic, writing about… well, that thing we’re all obssessed with. He argues that the political process has become so decentralized that it barely takes any actual support to make it onto a ballot.

According to the Pew Research Center, in the first 12 presidential-primary contests of 2016, only 17 percent of eligible voters participated in Republican primaries, and only 12 percent in Democratic primaries. In other words, Donald Trump seized the lead in the primary process by winning a mere plurality of a mere fraction of the electorate. In off-year congressional primaries, when turnout is even lower, it’s even easier for the tail to wag the dog.

In the 2010 Delaware Senate race, Christine “I am not a witch” O’Donnell secured the Republican nomination by winning just a sixth of the state’s registered Republicans, thereby handing a competitive seat to the Democrats. Surveying congressional primaries for a 2014 Brookings Institution report, the journalists Jill Lawrence and Walter Shapiro observed: “The universe of those who actually cast primary ballots is small and hyper-partisan, and rewards candidates who hew to ideological orthodoxy.”

This is actually one of the conclusions—not premises—of Rauch’s argument. His premise is that political power brokers, backroom dealmaking, and the kind of shady things most people hate are actually pretty healthy for a democracy.

I’m not entirely certain, but it’s an argument worth entertaining.

No Such Thing

Lauren Woodman asks an interesting question:Are we too obsessed with data?:

In the 1970s, 7-Eleven in Japan became independent from its parent, Southland Corporation. The CEO had to build a viable business in a tough economy. Every month, each store manager would receive reams of data, but it wasn’t effective until the CEO stripped out the noise and provided just four critical data points that had the greatest relevance to drive the local purchasing that each store was empowered to do on their own.

Those points – what sold the day before, what sold the same day a year ago, what sold the last time the weather was the same, and what other stores sold the day before – were transformative. Within a year, 7-Eleven had turned a corner, and for 30 years, remained the most profitable retailer in Japan. It wasn’t about the Big Data; it was figuring out what data was relevant, actionable and empowered local managers to make nimble decisions.

I worked at a Hollywood Video in college, and always wondered why they collected information about the weather at the end of the day. “Knowing” was apparently the only half of the battle Hollywood Video successfully waged, as they went bankrupt before I made it out of law school.

Of course, in order to pick the four right data points out of the “reams of data,” 7-Eleven’s CEO had to have reams of data to begin with. It’s a multiple choice test that the CEO passed, not a fill-in-the-blank test.

How to Get Away With Manslaughter

Former NYPD officer Peter Liang, who was actually convicted for manslaughter for the death of an unarmed black man, isn’t going to prison. He will receive five years of probation instead:

Liang faced up to a 15-year prison sentence for the second-degree manslaughter of Akai Gurley, but New York supreme court judge Danny Chun reduced his conviction to criminally negligent homicide moments before the sentence was delivered. The prosecution stated its intention to appeal against the reduction in charges. But the sentence handed down was nearly identical to what was recommended by the DA, Ken Thompson, in March.

There’s a lot going on here. I’m most struck by the silence of the NYPD Patrolman’s Benevolent Association, the largest of the half-dozen unions which represent police officers. Usually, when an officer kills someone, PBA’s President Pat Lynch screams his head off about what a perfect angel the officer was, and what a cowardly thug the deceased was. This case might represent the most that Lynch—the Thrasymachus of Manhattan—has kept his mouth shut in fifteen years.

Then there’s the District Attorney, who after successfully convincing a jury to convict Liang of second-degree manslaughter, recommends five years of probation and community service. (Note that second-degree manslaughter is a Class C Felony punishable by up to fifteen years in prison.) The judge agrees with the DA and metes out the recommended sentence, but reduces the charge to criminally negligent homicide, a Class E Felony punishable by four years in prison.

So what’s the difference between second-degree manslaughter and criminally negligent homicide? In Liang’s case, there’s no difference. The DA recommended probation and community service for the one, and the judge sentenced Liang to exactly that for the other crime. But this here’s a law blog, so roll up your sleeves.

Political Debt

Confession time: I’m a bit of a political junkie, and there’s nothing like mainlining coverage of the presidential elections. Sweet, sweet black tar polls and thinkpieces. Even if you’re not following along as obsessively as I am, you know that this one isn’t going the way anyone thought it would. Donald Trump has an insurmountable lead for the Republican nomination at this point, and I’ve read an unhealthy number of thinkpieces about why exactly that might be.

If you were to read one explanation, Josh Marshall, editor in chief of Talking Points Memo, has the best version. It’s all about technical debt:

If we do a project in a rough and ready way, which is often what we can manage under the time and budget constraints we face, we will build up a “debt” we’ll eventually have to pay back. Basically, if we do it fast, we’ll later have to go back and rework or even replace the code to make it robust enough for the long haul, interoperate with other code that runs our site or simply be truly functional as opposed just barely doing what we need it to. There’s no right or wrong answer; it’s simply a management challenge to know when to lean one way or the other. But if you build up too much of this debt the problem can start to grow not in a linear but an exponential fashion, until the system begins to cave in on itself with internal decay, breakdowns of interoperability and emergent failures which grow from both.

This is a fairly good description of what the media is now wrongly defining as the GOP’s ‘Trump problem’, only in this case the problem isn’t programming debt. It’s a build up of what we might call ‘hate debt’ and ‘nonsense debt’ that has been growing up for years.

But if you want a great description of what exactly this “debt” looked like when it was issued, you want Ben Fountain’s American crossroads: Reagan, Trump and the devil down south. Start with the disappearance and murder of three young black men who were registering African Americans to vote in Mississippi in 1964.

Mississippi officials insisted that the whole thing was a hoax, a publicity stunt to drum up support for the civil rights movement. Mississippi senator James Eastland alleged that the movement’s Meridian office had reported the three men missing in advance of their disappearance, and he called on President Johnson to launch an investigation into “civil rights fraud”. Leaders of the Mississippi Sovereignty Commission asserted that the young men were regularly being sighted alive and well, most reliably in Alabama. Others claimed that they were hiding out in Cuba, “with Fidel Castro and the communists”.

The bodies of the young men were eventually discovered buried in an earthen dam. It wasn’t the work of one or two bad apples:

In the months and years to follow, the story of their deaths would gradually come to light: their abduction by a Ku Klux Klan posse; the collusion of local law enforcement; the point-blank execution in a clearing in the woods. Far from being the work of a few vigilantes, a quite distinct picture emerges of a brutal, highly organized power structure procuring the murders of these three young men, then spinning hard to keep the truth from coming to light. Elected officials. Citizens councils. Law enforcement. The “community”.

And that’s where Reagan went to speak the words “I believe in states’ rights”, in his first appearance as the Republican nominee. These days we know it as dog-whistle politics, that coded language Lee Atwater was talking about. Reagan did not, by the way, mention Chaney, Schwerner or Goodman, whose bodies had been found a few miles away. That screaming silence, that was a dog whistle too, and to think that Reagan didn’t know what he was doing is to consign him to the ranks of the epically stupid. He’d campaigned for Goldwater. He was a two-term governor of California, and a veteran of national politics. The Neshoba County speech stands as one of the true masterpieces of the Southern Strategy, a dog whistle that blew out the eardrums of every racist reactionary within 3,000 miles.

I don’t know about you, but that didn’t come up in my American history classes. It seems like an unmistakable message.

Don’t Get Cocky, Star Fox

Emma Boyle, Gamer-in-Chief at Gadgette, writing about the backlash against easy modes in video games:

It’s because there are so many different ways that I and other people enjoy games that I can’t see what the issue is with giving players the best chance to enjoy a game in their own way. By including invincible mode, Star Fox Zero’s developers aren’t negatively shutting players out; they’re trying to bring more in. They’re trying to make the game enjoyable to as wide an audience as possible by allowing them to customise the gameplay experience to suit either their experience level or simply their gaming priorities.

Unfortunately many players only seem to like customising the gaming experience when it’s a customisation that suits them. There was outrage when a dad changed The Legend of Zelda to make it gender neutral for his daughter but oddly the comments section for this mod that allows players to see “realistic bounce and jiggle” for character breasts in Skyrim didn’t attract quite the same amount of vitriol.

That’s one hell of a mic drop. Also, not to pull Nerd Rank on the kids whining about an easy mode in the new Star Fox, but back in my day, games were impossible to beat. Kids today have it easy, whether they think so or not.