March 22, 2007

Teaching about sensitive subjects.

If you're wondering why I'm not writing anymore about the Kaplan story, it's that my approach to it has always been to comment on articles published in mainstream media. (If you don't know what I'm talking about, clicking on the "Kaplan story" label below will collect all the old posts about it.) But you might be interested to know that one response by my school was a forum, held on Tuesday night, where faculty and students discussed the challenge of teaching about controversial subjects. I have worried that the reaction to Professor Kaplan's classroom statements (about the Hmong) would cause teachers to avoid the subject of race:
It would have been so much easier to teach using simple, straightforward lecturing, with every sentence carefully composed, with a sharp eye on the goal of never giving anyone any reason to question the purity of your beliefs and the beneficence of your heart.

Your colleagues may sympathize with you in private, but most likely they’ll be rethinking this idea — heartily promoted in law schools since the 1980s — that they ought to actively incorporate delicate issues of race into their courses.
The forum seemed designed to address questions like this. I'm not going to write about the forum. In fact, I didn't attend the forum because I saw it as too much of an internal confabulation to write about here, and I didn't want to use the material that I'd be privy to.

My colleague Alan Weisbard, however, did decide to attend and to blog about it. You can read what he wrote here. I thought you might find this part especially interesting:
[M]any students, of varying backgrounds and perspectives (at generally liberal UW, this was expressed most poignantly by (white) students, male and female, identifying themselves as "anti-affirmative action" and/or as "Republican" (whatever that is)), felt reticent to express their true views on controversial subjects because of fear of negative repercussions from fellow students (and gave some chilling, in multiple senses, examples). Some present expressed considerable doubt that faculty could do much to change this: Peer culture may be much more influential than anything faculty do or don't do. Others disagreed, and there was some constructive, if largely disembodied, discussion. At least we were talking, and complexifying the oversimplifying assumption of faculty omnipotence and sole responsibility. Not much talk of student responsibilities to the collective learning environment, however.
Alan has some more posts on the subject over there which you can click around and find.

I should think that affirmative action -- an extremely important topic in constitutional law -- is the single most difficult thing to discuss openly and vigorously. Don't you agree? I suspect that in the great majority of law school classrooms, perhaps in nearly all of them, students feel compelled to act as though they support affirmative action and dare not say anything to the contrary, even if the teacher seems to bend over backwards to encourage debate.

Professor Kaplan caused an uproar while teaching about race from a left liberal position. I really wonder what the reaction would have been if he had been viewed as a conservative, who was not presumed to have the generally approved set of political beliefs. On the other hand, I think that the only reason he got into the position where he ended up saying some inflammatory things -- and I still don't know exactly what they were -- was because he was teaching from a left-wing perspective.

As to the students who feel chilled, I think it's easy to say to them they should take more "responsibility" in the "collective learning environment," but I think the teacher has got to be the teacher. Students are going to care what other students think about them. Their social relationships matter to them, and their interest in their standing among their peers deserves respect. The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and to require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs, endorsing policies, and proclaiming politics.

But by all means, talk about such things. There must be a thousand bars and cafés in town where you can carry on the conversation late into the evening.

43 comments:

cokaygne said...

You said:

The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs, endorsing policies, and proclaiming politics.

That is wonderful. Thanks for saying that. I hope that your colleagues and academia in general follow your advice. Those few sentences are one of the best things I've seen written on the internet in a long time.

AllenS said...

You said:

"I should think that affirmative action -- an extremely important topic in constitutional law -- is the single most difficult thing to discuss openly and vigorously. Don't you agree?"

Why not call it what it actually is, unconstitutional.

David said...

The problem in academia is that too many left-wing teachers shelter their ideologue selves under the affirmative acton umbrella. They do not support free speech if it contradicts their cherished beliefs. Further, they limit dissent to their 'hallowed' beliefs by stifling dissent in the culture through EEOC departments and affirmative action bureaucracies.

The Hmong controversy is a predictable outcome to the politics of hate preached by some from the bully pulpits of today's classroom environments. I question Professor Kaplan's motives as surely as I question the disenguousness of an ACLU lawyer shilling for NAMBLA's legitimacy.

Ask Larry Summers what he thinks about free speech and controversial subjects in academia today. Or you can go to Las Vegas for a symposium on ethics and morality. On the home front, the administration takes the politically expedient path and cravenly sends the problem to committee in the guise of a forum and effectively launders the problem away.

AllenS said...

or you could call it discrimination.

Roger said...

Having never been in a law school classroom, I would have guessed that lawyers in training would be more inclined, not less inclined, to explore opposite points of view.

I think your question is even more germane to undergraduates--especially those in general college requirements classes. Frankly, I dont know how to do it well.

P. Rich said...

Students arrive at university with half-baked ideas about race and such. That doesn't make their beliefs any less impassioned. The difficulty in holding a "discussion" on touchy topics is that for some, it will immediately be perceived as a critical confrontation and degrade into emotional outpouring - intellect be damned.

Wise males learn early on in relationships with typical females (statistically likely to be Myers-Briggs F Types) that feelings are not subject to debate. They just "are;" and they trump fact, logic and reason every time. The same problem will surface in any attempt to discuss a topic about which one or more of the participants, male or female, feels strongly. Feelings are an obstacle to reason and a frequent cause of miscommunication, and they aren't going away.

yetanotherjohn said...

Put it in positive terms.

Quote the amendments. Then ask who is for race equality. Cite some polemic from the KKK and ask someone to defend that race inequality. Now cite some polemic for racial references in school admissions and ask someone to defend that race inequality.

Compare and contrast the two positions as both favoring racial inequality. Both sides justify their advocacy of racial inequality based on past, present and future harm/good that will flow from allowing their racial inequality. Once you establish that, it becomes very hard to justify any form of racial inequality as other than one group looking for advantages over another group which in turn would be contrary to the constitution.

Badger 6 said...

Fortunately Justice O'Connor has now given us a deadline when the unenlightened masses will no longer need Affirmative Action. twenty five years from 2003? 2004? I don't remember what year the Michigan Law decision was hounded down for sure, but at least we are in countdown mode finally.

Bruce Hayden said...

On a similar, but slightly different, line, one of the most unsettling things I encountered in law school was the discussion of Roe v. Wade in Con Law. The prof, who in reality is somewhat liberal and IMHO likely agrees with the case, got in trouble with the feminists by asking that some of them take the opposing side. For that, a formal grievance was filed against him (which went nowhere, when the faculty grievance committee asked them what they wanted as a remedy - a regrade? Not likely, as the woman with the high grade in the class was their leader).

But as bad, this brought to light that a number of students had been intimidated by peer pressure from criticizing the decision. My guess, based on rumblings, is that 1/4 to 1/3 of the class didn't agree with that decision, but had been effectively silenced by the majority, esp. the vehemence of the "feminists" in the class.

Ann, at least until you were (IMHO falsely) identified as a "consevative", I would think that you could get away with this better than a male prof could. Like Kaplan here, you had the right credentials to question that case.

David said...

Allen, you are correct. It is discrimination and unconstitutional. The good news is, the tide is turning against relativism.

Roger, you do it well by seeking the truth and not some hazy construct that promotes cumbaya morality. Setting up entire bureaucracies whose existence depends on make-believe victimhood is not the answer. Remember the "Twinky" defense a few years back?

Fantasy law is still being taught to this day by a small but vocal aging band of diminished hippies revelling in a Marxist utopia.

The real question for the ages is the effect of marijuana on the onset of senile dementia.

Jennifer said...

From my own experience as a relatively conservative student in an overwhelmingly liberal school, I learned quickly not to speak up if my views were not on the strictly defined "tolerant and open minded" list. Not because I was concerned with what other students thought of me, but because it was beyond pointless. You are shouted down very quickly, often quite emotionally and mob rule takes over. What's the point? It's not a debate - it's a shame on you, you ignorant brownshirt session.

The only remedy is - as you suggest - the teacher structuring the classroom to avoid the groupthink. But, I only encountered a handful of professors willing to do that.

Bruce Hayden said...

"The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and require them to defend those arguments and to respond to other students who have been called on to articulate other arguments."

The problem with that is that even in law school, on really touchy subjects, like race and abortion, some, if not many, of the students are going to adamently refuse to take the opposite side.

I can see a strong pro-lifer taking the anti-Roe v. Wade side of the abortion debate. But no one in their right mind is going to take the anti-affirmative action side in a law school class. No one wants to be thought of as a bigot by his peers, and that is precisely what would happen.

Ann Althouse said...

Those of you who are just asserting that affirmative action is obviously unconstitutional are just demonstrating what the problem is from the other side. The idea is to examine the subject analytically and in a way that develops legal skills. Shutting down one side or the other is not the point.

Bruce Hayden said...

"The real question for the ages is the effect of marijuana on the onset of senile dementia."

That would be an interesting discussion. Maybe some day. While I support the use of medical marijuana, as I noted in the Cathy Seipp discussion, I know several long term pot users who seem to be experiencing significant adverse affects from its use. There, I indicated that they seem to have developed thinner skins, as the rest of ours thickened. But there also seems to be some shorter term memory loss, with a consequent emphasis on events long ago (most often pre-pot childhood memories).

I had not thought of that as early onset dementia, but the idea has merit.

Fen said...

The problem in academia is that too many left-wing teachers shelter their ideologue selves under the affirmative acton umbrella. They do not support free speech if it contradicts their cherished beliefs. Further, they limit dissent to their 'hallowed' beliefs by stifling dissent...

Yes, its telling how many Affirmative Action Bake Sales have been shut down by school administrators. They are intolerant of speech they oppose.

cokaygne said...

We've come a long way from the days when John Adams entered a Boston courtroom and defended the British soldiers who were accused of the Boston Massacre or later when the ACLU defended the right of Nazis to march in a town populated by Holocaust survivors. Some of these comments suggest that there are law faculty who do not believe that everyone deserves a fair trial. This doesn't just happen on the left either. All you have to do is ask the people rotting in Guantanamo.

Bruce Hayden said...

Those of you who are just asserting that affirmative action is obviously unconstitutional are just demonstrating what the problem is from the other side. The idea is to examine the subject analytically and in a way that develops legal skills. Shutting down one side or the other is not the point.

This is why Ann teaches the stuff, and the rest of us don't.

LutherM said...

Martin Luther King, Jr. said in 1963,"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."
In the dissent to the decision in Plessy ,Mr. Justice Harlan said in 1896 "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

I have absolutely no problem with Universities giving financial aid to less affluent students (which in a sense discriminates against those who can pay exorbitant tuition), but I am unable to see a justification for race-based preferences. As a law student, being asked to defend Affirmative Action might be defined either as (a) good training or (b) Cruel and Unusual Punishment.

Al Maviva said...

Most of my profs were very liberal to leftist, and it came across in class. They often had a bullpen of a handful of reliable left liberal go-to-gunners and watching them work their amen chorus was always fun. I was an "out" conservative in law school and I really didn't care about what people though. For some reason there were a lot of military vets in my particular class, including some 20+ year retirees, and most of us were pretty conservative, and it formed sort of a peer group of libertarian/conservative contrarians. This made an interesting dynamic, because if there were two or three of us in any given class, the groupthink would often get popped like a balloon, the tennis match between the prof and the designated agree-ers would end, and lo and behold, several other students would speak up including the 'younger more impressionable' ones that had contrarian views of their own, that I might not agree with either. that would lead to *several* viewpoints being discussed, not just doctrinaire liberal and doctrinaire conservative. It took people to stand up and state their opinion without being worried about what others thought though, to stimulate more open debate.

Roe and the affirmative action did provide interesting moments though. My con law prof, a well known liberal prof and former S.Ct. lit specialist, stated at the start of the discussion of Roe that "I support a woman's right to chose more than most, but any serious scholar of Roe has to admit at the outset that the legal reasoning of Roe and Griswold is laughable." Wow, that sure got the room to be quiet, fast. Later on, in the discussion of equal protection and affiramative action, the half dozen or so National Lawyers Guild student chapter members in the class made a concerted effort to win the debate by repeatedly referring to the two normal positions as "the argument in favor of affirmative action, as opposed to the racist argument" and slight variations on that theme. I would probably have spoken up in class that day, but one of the NLG girls was really cute in an ernestly-full-of-herself-makes-me-laugh kind of way and I thought it would be more fun to just let her talk and try to shout down other people's opinions. I think she probably made more opponents of affirmative action in one day, than the UMich School of Law does in any given admissions cycle.

Howard said...

I used to teach a class at UCLA and one at a night deal at USC. I always told everybody that if you don't get insulted or have your feelings hurt at least twice a week you are doing something wrong, most likely you are hiding out. I guess that was then....I cannot imagine structuring a class where learning is supposed to happen with a principal criteria of not hurting others feelings. What's going to happen to you in the real world? Do rejection slips bother you boobie; how about not getting a part that you read for; and that job interview where that horrible man told you "he'd get back to you" and he didn't.

Oh, and if you think being a salesman ain't rougher on the salesman than the client, then you ain't had the right summer job.

paul a'barge said...

This is very simple... there are some very brutal bullies in the arena of political correctness. These thugs have everything to lose if they lose the leverage they have over political correctness. And, affirmative action IS the battle field, so we all can expect this battle to be fought as a battle to the death.

If you teachers can't muster the cojones to stand up to these bullies, how can you expect your students to learn any other lesson?

If you folks in academia can find the courage to stand up to the citizens of your state and their elected representatives in fighting for the rights of an untenured nutjob who is teaching that 9-11 was an inside job, yet you can't find the courage to stand up for a leftist/liberal law professor who tries to bring up race in the most dainty of terms, how is anyone else out here supposed to assume anything other than that you in academia are complete frauds?

Fen said...

Some of these comments suggest that there are law faculty who do not believe that everyone deserves a fair trial. This doesn't just happen on the left either. All you have to do is ask the people rotting in Guantanamo.

Since when does the Constitution apply to foreign nationals enagaged in terrorism? They are POWs, to be detained until the war is over.

Peter Palladas said...

The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and to require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs, endorsing policies, and proclaiming politics.

But by all means, talk about such things. There must be a thousand bars and cafés in town where you can carry on the conversation late into the evening.


Let's start with the end: what a sweet, righteous life you must have led for so long to imagine that students actually 'end' their conversations in the late evening. Social death to even turn up at the cafe before midnight! Don't you recall those urgent student debates that would not have the gall to call themselves genuine 'urgent studuent debates' 'til kissed by dawn's early light?

You don't! Wow, you really should have accepted my offer of a smoke at the Kinks' concert in '73;)

But to the matter in hand. By 'defend' are we talking about the legal craft and craftiness that can and does defend whichever argument is paying the bill? The skill and capacity to make a case for defence or prosecution. (It was the mark of A J P Taylor's supreme mastery of history that he could construct sound, evidenced and utterly plausible arguments pro or contra any historical thesis. Didn't quite argue for his integrity of soul, but that's another matter.)

Or do you mean 'defend' as in "I believe in this, so come get me if you think I'm wrong"?

The 'bong for Jesus' thing for example: is it defending the right to speak out howsoever crassly or is it advocating that Jesus did or should have bonged? (Not sure of this whole 'bonging' thing here as I have simply no idea what the banner was supposed to be saying, but that's of no merit to the argument.)

The true debate would have to be the classic 'This House Supports/Deplores...' with genuine advocates for both sides. But even then there would be the Taylorites who would happily pitch their rhetorical tents either side of the river.

But who cares about the Taylorites - at least people would be speaking not struck dumb.

Seems so ironic that the country that has so heavily majored on the right of free speech is so agonised about saying anything.

We over here take a different line: some bloke was selling 'Bollox To Blair' tee-shirts at a country fair and was arrested for 'breach of the peace' on the grounds that he/it could cause 'alarm and distress.'

Convicted and fined he appealed and the appeal court threw out the case saying he had every right to be rude about T Blair.

Now you could well argue that he should never have been brought under the law in the first place and who would I be to disagree? There is an increasing Stalinist tendency in the UK that seeks to suppress fair and unfair comment.

But then again at least the guy had the balls, as it were, to say what we all think, has been vindicated and the judicial establishment has freed him to be hostile to politicians - and presumably his sales have burst the ceiling.

So 'Bollocks to Blair' - I rest my case m'lud.

Joe Baby said...

Totally agree on affirmative action -- it's a no-go zone. AA might not only have been a factor in admission, but many opportunities during law school give preferences based upon race or gender.

And if you argue against such programs, you're not only taking on one race -- you're taking on all them, and you're taking on women in some instances.

Why would a wise law student do that? I'll have lifelong relationships with some of these folks -- why be portrayed as a racist nut because of a 30 sec. comment in a class?

By the way, the ABA intends to ramp up their AA efforts, and many state bars are targeting more "diversity" within the big firms.

I'd rather argue that women were better off pre-Griswold in front of the entire female student body.

Beth said...

call on students to articulate the arguments of the various parties...require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs....

This is what I do in my freshman comp classes, though of course the level of argument is different. It has the advantage of requiring them to do research to learn the arguments and evidence behind various positions, which is one of the main goals of the course, and moves them away from the kind of personal experience writing they've mainly done in high school.

Dave Ebersole said...

Prof. Althouse covers the teaching perspective about as well as I've seen it articulated. My experience in ConLaw was positive because the course was presented much like she articulates.

I'd like to second Jenifer's point above. My experience at law school is that ideological groups are highly collegial and have very little time for counter-arguments (on both sides). As a result, it is not worth discussing things a lot of the time. This of course pours over into classes that are not as strictly regimented.

While an assertive student who is confident in his beliefs probably has little or no problem arguing points that run counter to the PC, it is much more difficult for students who are introverted or whose beliefs are less certain. And forget it if you see nuance in any issue at all.

In a way, law school is thus not unlike real life (at least political life).

P. Rich said...

No, Ann. Let's not put:

"Affirmative action is thinly disguised discrimination based on race, which has no support in the Constitution."

and:

"I believe in affirmative action because it is good for minority victims of the establishment; and if you don't agree you're an asshole and I'm gonna report you for harassment and racism."

into the same bucket. That is a weak criticism of the former and fundamentally invalid on its face.

David said...

Professor Althouse;

With all due respect, arguably it is the point to shut down the other side as the argument turns from analytical (facts) to emotional (feels good).

Breaking the discussion down into discreet parts focuses attention on individual parts while the whole loses it's integrity. Picture a jigsaw puzzle of the Mona Lisa or the Monster created by Mary Shelley's Dr. Frankestein.

The sword of Damoclese hangs over each class in the form of a breach of AA/PC. The lowest common denominator of participants respond by taking offense at an attack on a cherised protected belief.

I posit that there are those walking among us who don't believe in free speech, in any venue, if it weakens their agenda. I will be more specific, the extreme elements of both parties are susceptible to this bias. The rightwing nutjobs are dismissed as crazies. The leftwing nut jobs are treated as prophets and oracles.

This confluence of ideas is a problem and not an opportunity in our culture today.

John Kindley said...

I participated in an intra-law school moot court competition in which affirmative action cases were the subject. We had to argue both sides. I thought that my personal views were clearly against affirmative action. In reading the cases and being forced to articulate persuasive pro-affirmative action arguments, however, I found myself being persuaded that affirmative action was not clearly unconstitutional. A case dealing with the need, which seemed to me compelling, of a correctional institution with a largely black inmate population to not have an overwhelmingly white correctional staff sticks out as persuasive. I also considered the fact that arguably the purpose of a state law school is not primarily to provide prospective students with careers but to provide the citizenry in general with effective lawyers. If the citizenry believes that on the whole it would be better served by larger numbers of minority lawyers, even at the (small) "cost" of a slightly lower average LSAT score among incoming students, that would seem to be an arguably legitimate state interest. A relatively high LSAT score by itself does not make a slam-dunk case that the person "deserves" admittance to a state law school.

I also remember finding Justice Thomas' arguments against affirmative action to be very eloquent and compelling. I had a hell of a time in the moot court arguing against affirmative action, however, because all three of the judges in that moot court panel were fellow law students who were black. I thought for a minute I'd been set up! It was uncomfortable to say the least arguing to them, following Justice Thomas, that affirmative action stigmatizes minority students with the suspicion that their qualifications are not as good as that of other students and that they would not have been accepted by the school but for their minority status. My judges appeared quite unsympathetic to that argument.

I suggested on other threads that law students should grow the nerve to challenge in class assertions of the professor about the law or policy that are dubious, but this clearly has the potential to be distracting and to get out of hand. It would for the most part be unnecessary and uncalled for if professors follow Ann's suggestion in this post, which with cokaygne I'm grateful to Ann for saying:

"The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs, endorsing policies, and proclaiming politics."

A student can learn a lot by having to articulate and defend arguments with which he thinks he disagrees.

From Inwood said...

Fen

You say

"Since when does the Constitution apply to foreign nationals engaged in terrorism? They are POWs, to be detained until the war is over."

Silly you. You are so not au courant. Don’t you know that now we have to consider foreign law in our constitutional interpretation?

And, a fortiori, when dealing with foreigners....

From Inwood said...

P Rich

You correctly note that a statement like the following:

"I believe in affirmative action because it is good for minority victims of the establishment; and if you don't agree you're an asshole and I'm gonna report you for harassment and racism."

…. is a weak criticism of [an anti affirmative action position] and fundamentally invalid on its face.”

If that is what a future lawyer thinks is refutation, God help his/her clients. When this tactic works in a law school setting, & apparently it is used & works, the would-be lawyer is emboldened in his/her belief that such blackmail-as-substitute-for-reason will work in the real world. Funny, it does too often.

From Inwood said...

Prof A

You said:

"Those of you who are just asserting that affirmative action is obviously unconstitutional are just demonstrating what the problem is from the other side. The idea is to examine the subject analytically and in a way that develops legal skills. Shutting down one side or the other is not the point."

A fine point.

But where does the Prof end up?

For instance, when a Prof brings up the following cases, does he or she come to a conclusion after, with all due respect, letting all sides have their say without shutting down one side or another?

Dred Scott (Caused The Civil War)
Pollock (The No-Unapportioned-Income-Tax-Allowed case.)
Plessy (Back of the bus.)
Korematsu (OK to send Japanese Americans to concentration camps in US.)
Bush v. Gore (You know)

Or even Roe v Wade?

Paul Ciotti said...

I doubt that any school would be politically incorrect enough to do this now but when I went to freshman orientation at Columba in 1959, I remember one professor standing up and telling us: "If you are not angry and confused halfway through the first semester then we, as professors, are not doing our jobs." Nowdays if a professor says anything to make a student angry or confused, his whole career is at risk.

Simon said...

From Inwood - how is Pollock controversial at all (indeed, post-16th Amendment, it has as much ongoing relevance now as Chisholm v. Georgia does post-11th Amendment), let alone in the same league as Dred Scott, Plessy, Lochner and Roe?

From Inwood said...

Simon

Not sure what audience you're addressing when you use the term "controversial". Hey, though they don't know it by name there's a lot of people on the Right who'd say upon learning about it: "I like that Pollock decision, that court's approach." And a lot of people on the left who'd say "get outta here; SCOTUS would never rule against an income tax."

And feel free to add Lochner (another case "to be named later") to my list, though I don't think that the average person could identify Lochner by name (maybe someone form Utica, NY!).

Why Pollock then? For the same reason I mentioned my other cases.
Unless things have changed since I left law school, Con Law teachers teach from cases.

So, the law student read Pollock & then found out that the 16th Amendment had cured Pollock's ills.

So, quibble, but I listed it simply as an example of SCOTUS decisions which are now un-PC & about which, people who say, with religious fervor, that a SCOTUS decision is sacrosanct & must be obeyed, have no answer.

The list of SCOTUS decisions with which progressive people now disagree is endless & since you like NY cases, add Schnechter. Again, it's another "nobody knows my name" case though they know about the "nine old men" who decided it.

Regards

Inwood

Elizabeth said...

Simon, pardon me for creating a digression, but I just learned more about Plessy than I'd known in the past (that's from two semesters undergrad constitutional law, years ago), and I'm wondering how these things are covered in law classes, or in other discussions.

What I'm still floored to learn is th at one of the SCOTUS judges that decided Plessy was a New Orleanian, and a member of the White Citizens' League. That's the American militia (Anglo, mainly Protestant people who moved in after the LA purchase and brought more regressive race attitudes with them) that took up guns and attacked the Reconstruction government housed in the Customs Building on Canal Street, which separates the American and French areas of New Orleans. They brought down that government and rolled back the rights that had been granted under it to black men. They allied with the KKK to accomplish this. So, in all probability, this judge was in that crowd of traitors, and used force to overturn an elected government. What also astounded me, but shouldn't have, is that Plessy, who was chosen to challenge the segregation on the St. Charles streetcar line, was a light-skinned Creole who later registered to vote, putting down his race as "White" and going unchallenged. That case just puts the lie to so many myths of black and white, and is such a shameful part of my town's history.

From Inwood said...

Elizabeth

Not sure what “myths” & “traitors” are bothering you.

You mention that you understand that Plessy was white. Actually he was 1/8 Negro (Black, African-American, take your PC pick), which classified him as “colored” under LA law at the time, so the case was not moot, though it was a “test” case.

As for the KKK, the jejune, now Hon, Robert Byrd was a Pooh-Bah in his local Klan and the jejune, later Hon, Hugo Black was at least a Klan member. We are told by some that bringing up this inconvenient fact amounts to “McCarthyism”. Please review the McCarthy-Welch Exchange: “Have You No Sense of Decency?" It’s played on PBS at every fund raising (Monthly?)

And BTW, The Hon Earl Warren, who is judged by many a hero for having got through a unanimous Brown decision overturning Plessy, is also judged by many to have been, er, less than honorable in his treatment of Japanese-American citizens in WW II, proving that there are “second acts” in some American Lives.

Beth said...

"You mention that you understand that Plessy was white. "

No, I mentioned that he was able to present himself as white. That's a good example of a myth about race. In one situation he's black, in another he's white.

As for "traitor," the White League took up arms against an elected government. That qualifies.

I don't know what point you're trying to make with Byrd, etc. I haven't disputed their KKK membership. So what?

From Inwood said...

Beth/Elizabeth

Do you present yourself sometimes as Beth & others as Elizabeth? Plessy had nothing on you!

And so I will place this reply in only one thread.

I think it incumbent upon you to explain, with clear positive statements, what, beyond the thoughts of most people today, has you so upset about the Plessy decision rather than for others to try to figure it out.

For instance, assuming that, as you say, Plessy presented himself as Black on some occasions & White on others (aside, the musical Showboat mocks the “one drop of colored blood” test), he was absolutely, positively “colored” under LA law & that was the issue. So what effect would Plessy’s schizoid conduct (which so far as I can remember was never mentioned in the opinion) have on whether the court’s opinion in his case (segregated colored facilities are OK as long as “separate but equal”) was or was not good jurisprudence?

Next, I’ve shown you that at least one later SCOTUS judge & one current Senator were KKK members. So, what effect did the membership of a then sitting SCOTUS judge in a White Supremacy group (which you, hesto presto, conflate to treason; “Code Pink” better get out of Nancy’s office with you on the case) have on the infamous Plessy case other than one vote out of eight? (Or is your bad guy the one who did not participate in this case?)

Have you given any thought to the bona fides or the mala fides of the others who joined in this decision?

Would you have been this excited in 1954 when you heard that Earl Warren had become the Chief Justice while Brown was being decided, knowing that he’d had a major part in the imprisonment of American citizens in concentration camps, which most people feel today was an outrageous violation of basic American rights?

Bonus question: some have suggested that a person who is deeply religious or orthodox should not be allowed to serve on SCOTUS, because he/she would be too prejudiced to decide certain cases. Do you agree?

BTW, you ignored my reference to McCarthyism in judging people for their past actions.

Finally, you also asked where I have

"come across the notion that it's a good thing to nitpick other people's use of rhetorical devices on a blog comment thread?"

Though not to worry.

"You realize [you’re]dealing with a bit of an eccentric."

Um, maybe I got my “notion” from the same “eccentric” playbook which you use to nitpick when you said that

“[I] sure use a lot of words to say the same thing over and over; repeating [my]self floridly doesn't improve [my]point.”

But of course, I wasn’t nitpicking. As I tried to explain, the use of Litotes (except for irony or false modesty) may be symptomatic of an inability to “put statements in positive form” which is more than a “nit” defect.

Regards

Beth said...

Inwood, just how hard is it for you to make the connection between Beth and Elizabeth? Blogger has its quirks, and I'm not the only person who comments in this blog whose name has been tweaked by the software.

Your obsession with litotes overlooks that the device is also used as understatement, for emphasis. But what's just plain weird is that you have such an obsession. I saw a comment from you on the same silly point to another poster in another thread. You're like a kid who learned a new word and has to work it into every conversation.

You continue to overlook, in Plessy, that I used the word traitor very specifically, for one who took up arms against an elected government. That's hardly on par with Code Pink. We call it terrorism these days. Likewise, Warren's decision on Japanese internment might well have given me pause in 1954, and I would have been happy to see that he was able to come to a better conclusion in Brown. What does that have to do with Plessy?

What about religion? Well, I wouldn't want a judge inclined to use sharia law to make decisions, just as I wouldn't want one who let Biblical teachings override our Constitution. That's not difficult. Scalia and Robert are both religious men but I don't worry that they act as priests rather than secular judges, for example.

As for the significance of race in Plessy, his case is an example of irony, in that it enshrined the policy of seperate but equal, while the man at the heart of it could cross that seperation at will.

Just curious, what about my comments has your panties in such a wad? You've taken a hostile tone that doesn't seem warranted.

rascal'smom said...

The truly sad thing is that UW-LAW is going to degree these folk and then turn 'em loose to practice law. I had reason to meet this professor for about a hot second a few years ago and he’s no racist. I truly feel for this decent man. Take Care Folks.

From Inwood said...

Beth/Elizabeth

calm down.

I’m not upset at you or your doppelgänger. I feel sorry for you, especially since you have resorted to name calling & teen-age clichés. (I guess you think your style is “awesome”! Whatever.) Or as you might put it “I know that I am not as impolite as you would not so impolitely have it.”

Since you don’t seem to understand the need not to whine (there I go again) when confronted with some basic challenges, I suggest some rest. With all due respect, of course. And then I offer the following as a “wake-up call”, tho I note that your chances of waking up are more probable if you’re just asleep rather than clueless or confused.

I do not spoon-feed or write everything in “Basic English”. If a sentence with a “big” word or a relative clause confuses you, that's not my fault. And when you misunderstand & try to place the blame on me for my alleged poor style, or when you misunderstand the point of Plessy, neither are those things my fault. In the future, I’ll try to find a euphemism to describe your attitude, as long as you don’t take teen-appropriate potshots at me & my style.

So, let me help you. Do not be unskilled in the art of public discourse (there I go again) & so don’t say that the following “put you on the floor” & no whining when, for instance:

(1) You’ve called attention to someone’s style & he counters with a “tu quoque. (Especially when your manner would indicate that, in your own words, “[y]ou've taken a hostile tone that doesn't seem warranted”?)

(2) Someone points out that, not only was Plessy not about treason, you don’t know anything about treason. And points out your selective indignance re the rioters who want violently to take over Nancy’s office (or who engage in armed attacks on government offices today, if you will since loonies cannot bear arms within government buildings) vs. some white supremacists of yesteryear.

(3) Someone points out that the Plessy case was not about passing for White it was, rather, about what happened when Plessy wasn’t passing for White.

(4) Someone suggests that you shouldn’t have been so shocked, shocked to find that one Post-Reconstruction justice was not completely, um, reconstructed since a lot of the judiciary (the other six SCOTUS members in the majority of the Plessy court, for instance), as well as a lot of the country felt that way, as, apparently, did some of the 1953 SCOTUS honorable associate judges before Warren’s accession & arm twisting.

(5) Someone makes an analogy to Warren’s Epiphany, like Saul’s at Tarsus, suggesting that if you would be horrified at a Post-Reconstruction judge’s past, you might consider Concentration-Camp Earl Warren & the lessons of McCarthyism, especially since the McCarthy/Welch video is played on PBS at every fundraiser (every month?) And you might, in Warren’s case, unlike McCarthy in the exchange have come to realize that the frolicking “commie” law student in the ‘30s had gotten sense & was then an adult white-shoe lawyer in Welch’s firm. So what it “has to do with” your reaction to Plessy is that you really shouldn’t get “floored” by a judge’s past, much less selectively floored.

And finally, since you addressed more calmly, in a more adult manner the points about religion as a bar to judicial appointment, & what you see as Plessy’s irony, I’ll reply in kind.

It is certainly ironic, but surely a sidebar to discussions of the Plessy & Brown cases (and Brown’s progeny) in law & in life, if as you say (& I’m not doubting you) that Plessy could “pass”. To that point, I suspect that octoroon Plessy could not always pass "at will" as you'd overstate it & that he was thus chosen as the test sample because the plaintiffs wanted a reductio to show how extreme the “separate-but-equal” test was. That they failed & set the tone for many a year & many a generation was due more to the zeitgeist than any one judge’s evil past or the irony of the test case guy otherwise wanting to pass.

Until long after Brown, the fires raged & the desire to pass on the one hand & the “one drop of blood’ & the “paper bag” tests on the other still existed widely. The tests existed on both sides. On a sidebar within a sidebar, an Irish-American heritage magazine has proclaimed Mariah Carey & Derek Jeter, among other public figures, as Irish-American & now it seems that The Hon Barack has discovered an Irish ancestor. More irony; Al Sharpton does not see Barack as “Black enough”. But none of that’s enough to “floor” me. Or distract me from important things.

Your answer about religious judges is thoughtful & OK, up to a point. And it is especially apt in view of what I understand a German judge has just ruled: wife beating is OK if the “Beater” & the “Beatee” are practicing Muslims (not sure it has to be both, but Nevermind!). But, can we also agree that no one should have to check his/her moral code at the “courthouse door” just because he/she is an orthodox, true religious believer, & none of our judges should get away with acting, to turn your phrase around “as secular priests rather than judges”, just because they’re atheists and have an enlightened view on morality?

Regards, Whatever. (Sorry, just couldn’t resist)

Elizabeth said...

You’ve called attention to someone’s style & he counters with a “tu quoque.

Ah, I understand now. I did indeed suggest someone was long-winded and repetitive. Apparently, that comment has set someone off, and has him following me (both of me) across two discussion threads to wax on and on in response. I apologize; I can't imagine why I ever thought to label someone wordy, eccentric, or obsessive. Someone has certainly proved me wrong.