In Which I Go Out of Character and Strike a Blow for Concision

So, if you read this blog (which you appear to), you probably know that I tend to write rather lengthy blog posts. The same is true of basically everything I ever write: it gets long. I'd like to think, however, that most of the length is not just due to pointless excess verbiage, but rather because I'm just saying a lot of stuff. Regardless, there's a kind of irony in my critiquing someone else on grounds of insufficient concision. But what can I do when I read a sentence like this one:

The refusal of a legal order to recognize itself as hierarchically integrated into a more comprehensive legal order is justified, if the more comprehensive legal order suffers from a structural legitimacy deficit that the less comprehensive legal order does not suffer from.

Oh. My. God. Let me rephrase that:

The refusal of a legal order to recognize itself as hierarchically integrated into a more comprehensive legal order is justified, if the more comprehensive legal order is less structurally legitimate than the less comprehensive legal order.

I only altered the italicized part. I cut the part I modified down by maybe 40%. I'm pretty sure I cut the amount of stuff-that-gets-said in that part by precisely 0%. Seriously, what's the point of the "suffers from a structural legitimacy deficit" construction? The related phrase "democratic deficit" or "democracy deficit" keeps popping up in various forms of comparative constitutional law/theory that I've been encountering of late, and it drives me crazy. What's a democracy deficit? Deficit means shortfall, shortfall implies a baseline (e.g., the federal budget deficit is the shortfall of federal revenues relative to the baseline of federal outlays), so what's the baseline? Maximum Conceivable Democracy? Well that would be lovely, but in that case there's a "democracy deficit" everywhere and that's not really a huge problem because we live in an imperfect world and we do the best we can. If not that, then... what? The most democratic object in the frame of reference? Okay, but then why not just use plain old comparative language like what I used in my rewrite up above? It's a lot shorter and less jargon-y and you end up saying something that sounds a lot more like the natural way to say the thing you mean to say. Sheesh.


(I know it's been a while since I've written any posts, and that this is kind of a curious one to break up the drought. The trouble with law school is that I'm busy and I also have no shortage of actual people to discuss my ideas with, which means I feel less impetus to process those ideas by blogging about them. On the bright side I don't think I have any actual regular readers to whom I'm not related, so there probably aren't a ton of people aggrieved by my shortcomings in this regard.)

On the Politics of "They"

Kevin Drum just posted a little note on his blog announcing that he has "gone over to the dark side" and started routinely using "they" or "them" as gender-neutral singular third-person pronouns. I say, hooray! slash, why is this the dark side, exactly? I've long been an advocate of this as both the most natural way to talk, even putting politics aside, and essentially requisite once you take the politics into account. Anyway, here's Drum explaining his decision:

I'm not proud of this. But he or she has always grated on the ear. Likewise, using he some of the time and she some of the time is just too damn much work. And it's kind of confusing too. How careful are you going to be to use them equally? How much attention are you going to pay to make sure you aren't using them in gendered ways (he when you're writing about doctors, she when you're writing about nurses)? Etc.

 I would go a lot further as to both he or she and the alternation method: I think they're both flatly unacceptable for political reasons. The basic impulse here is that separate is not equal. Imagine, for instance, that for some reason we lived in a world where it was just baked into our language that we had to use a different third-person singular pronoun to refer to someone based on whether they were white or black. Or gay or straight. We wouldn't be okay with this, would we? I don't think we would, not even a little bit. And we most certainly would not be okay with either of these alternatives Drum identifies, the "X or Y" approach or just trying to mix and match. Because that would suggest that every time we referred to anyone, even a fictional person the details of whose persona are not important, we must give them a race, or an orientation, and make a special note of it in how we refer to them, and go out of our way to note that we're not doing that. Similarly, the way our language actually works, if the grammar pedants who oppose the "they" solution have their way, it is simply impossible to refer to a person without either giving them a gender or making an explicit, out-loud statement that you're not going to give them a gender. There is simply no natural way to just refer to someone as a person and as nothing else. Even "he or she" doesn't really refer to someone as a person, even awkwardly, because it's telling you that, while we're not assigning this person a gender, they have one (of course, everyone does, that's not the issue) and, more to the point, whichever gender they have is so important, so fundamentally definitional of their entire existence, that if we knew which one it was we would have to incorporate it into the way we refer to them.

In other words, a world where "he" and "she" are the only valid third-person singular pronouns valid for use as to human beings is a world which insists that all people are inherently defined by their genders. That's basically a denial of the common humanity of men and women and to me that's just flatly unacceptable. There's plenty of stuff to say about why the grammar pedants should lose on their own terms (Shakespeare uses the "they" construction, I'm pretty sure), but that's not the point. If the case were absolutely ironclad that using "they" this way was incorrect as a matter of linguistics, that wouldn't matter. At some point there's got to be a kind of popular sovereignty over language, a right of the people to amend their language if it no longer serves their need, and if we must accept that the English language as of today simply doesn't include a sufficiently egalitarian third-person singular pronoun, well, that's just an area that's crying out for amendment. And guess what! We've already been making that amendment (if it was ever needed in the first place; see above re Shakespeare), albeit in sort of a gradual, common law-y way. Good for us!

Did Somebody Say "Forgotten MVP Season"?

MLB.com currently features a link to this piece, dedicated to the proposition that Derek Jeter is underrated (or at least that he once was). How, you might wonder, do they defend this remarkable assertion? Because in 1999, when Jeter narrowly led all American League position players in bWAR and trailed Manny Ramirez by a tenth of a point in fWAR, he didn't win the Most Valuable Player award, or even finish in the top-5 in voting. Instead, Texas Rangers catcher Ivan Rodriguez won the award, while Red Sox pitcher Pedro Martinez, who had one of the best pitching seasons of all time (and then followed it up with a similarly-dominant one the next year), finished second. Proof positive!, says this piece, that Jeter gets no respect.

Now, I could try to construct some arguments for why Jeter's low finish that year was deserved. He tailed off significantly in the second half, his OPS dropping from a ridiculous 1.065 to .903 (which is admittedly still great, but less absurdly great, particularly for 1999). His team had the best record in the American League, and would've needed to finish twelve games worse than it did to miss the post-season, so while it's true, as the article says, that Jeter was the best player on a winning team, it's also true that he didn't make much of a marginal difference in that team's regular-season outcome. (Obviously that form of that argument is a bit ludicrous, and I don't know if the same great-team penalty that Dave Cameron found in Manager of the Year voting has historically applied to MVP voting, but it's a logical extension of the things people said about why Mike Trout shouldn't win his awards.) Then there's the fact that, if we're talking about value as value, there's no plausible argument that anyone not named Pedro should've won that award.

And then there's the fact that WAR likely understates, perhaps significantly, the impact of a great defensive catcher like Ivan Rodriguez. I don't have any pitch-framing numbers from 1999, but I bet he was pretty good at it, and there's reason to think that the best pitch framers add a ton of value that way. The idea that catchers should get extra credit is a remarkably venerable one; Roy Campanella won three MVP awards while having only one league lead in any one major stat in those three years, while Yogi Berra won his three MVP awards without leading the league in anything the whole time. Neither was anywhere near the league lead in WAR. Pudge Rodriguez was way closer to the league WAR lead in 1999 than either Campanella or Berra were in any of their MVP seasons. So if Rodriguez was an undeserving winner that year, the Yankees should give back some hardware of their own.

But that's not what I'm here to talk about, not in the main. No, I'd like to talk about a different league and a different New York team, and a few different players who got a lot less MVP respect than they deserved. In 1998, John Olerud hit .354/.447/.551 and put up 8.1 fWAR/7.6 bWAR. That put him third in the National League per Fangraphs, behind Barry Bonds and Mark McGwire by half a win, and second per Baseball-Reference, half a win behind Bonds. But he only hit 22 home runs, not being part of the insane record chase of McGwire and Sosa, and his blend of pure hitting and great first base defense got so little respect that he finished a whopping 12th in the voting. Oh, and did I mention that, while the Mets didn't make the post-season that year, they did win 88 games, climbing out of a slump that had consumed the first two-thirds of that decade, finishing a game out of the Wild Card tie, and launching one of the best eras the team had ever seen? Sosa won the award, and it's tough to complain about that, but Olerud at least should've been near the top of the ballot.

Or how about eight years later, when Carlos Beltran hit 41 home runs and hit .275/.388/.594 while playing Gold Glove defense in center field? His 8.2 bWAR were second in the league, barely behind Albert Pujols, and his 7.6 fWAR was likely second behind Albert, though by a bigger margin. Oh, and the Mets made the post-season. In fact they dominated, winning 97 games and leading the entire league by nine victories. Beltran finished fourth in the voting. The next season, which the Mets spent in the thick of contention, Beltran's teammate David Wright hit .325/.416/.546, had a 30/30 season (30 home runs, 34 stolen bases), and also won a Gold Glove, deservingly. His 8.3 bWAR was second behind Pujols, while Fangraphs thought his 8.4 WAR led the league by half a win. And while it's true that the Mets suffered an ignominious collapse to miss the playoffs, Wright was no part of that: he hit .352/.432/.602 in September, and .397/.451/.575 during the 17-game collapse itself. He did an almost inhuman job of trying to carry his team, and it's hardly his fault that it wasn't quite enough. He likewise finished fourth in the voting. Who won these MVPs? Ryan Howard and Jimmy Rollins of the Phillies. Wright led Rollins by about 2 WAR by either metric, and Beltran led Howard by something like two or three wins. But Howard put up goofy home run and RBI numbers, and Rollins hit 20 triples and 30 homers while playing a good shortstop--and for the team that snuck past the Mets. So despite having the best position player (modulo Pujols) in the league two consecutive years, the Mets didn't even get a top-3 MVP finish out of things.

And then there's the curiosity that is Bernard Gilkey, 1996. In his first season with the Mets, the left fielder hit 30 home runs and 44 doubles en route to a .317/.393/.562 slash line, and also (so say the metrics) fantastic defense. He was right around the league lead in WAR by a position player not named Barry Bonds, with Baseball-Reference putting him a tenth of a point ahead of Ellis Burks and Fangraphs putting him the same distance behind Jeff Bagwell. Now I'm not saying he should've won the MVP. I mean, Bonds should've, and other than that, Mike Piazza should've. It's absurd that Ken Caminiti in fact did. But perhaps the guy who had one of the most productive seasons in the league should've finished a bit higher up than 14th?

That's four times that a Met has been either arguably the best position player in the National League or arguably the best position player in the National League who wasn't Bonds or Pujols (and we all know guys like that get held to a higher standard for winning MVPs). The best any of them did was fourth place in the voting. One of them finished outside the top-10 despite his team's having been in the thick of playoff contention, out of nowhere, all season long. So if we want to talk about "forgotten MVP seasons," let's not talk about Derek Jeter. The other side of that "most saturated media market in the country" can boast not one, not two, not three, but four MVP-caliber years that were already forgotten while they were happening over the span of barely more than a decade.

And none of those four players possess a single absurdist Gold Glove either, let alone five.

It's Not About Race, It's About Racism

I try not to watch much Fox News these days. Well, any days. I mean I've never watched any Fox News, except for that one time when Stephen Colbert went on the O'Reilly Factor. But in general I try to keep my exposure level to Fox, and to conservative media in general, to a minimum. That's the kind of thing that gets you rather criticized in some parts, but seeing a few clips of Fox's coverage of the Ferguson situation has reminded me why I have this policy. It... was kind of shocking. And disturbing.

But anyway, one of the themes of the rantings of the people on Fox was that it was wrongful of liberals generally to make Ferguson and the shooting of Michael Brown about race. So here's what I have to say about that: it's not about race. It's not about race at all. Michael Brown's shooting is not outrageous because Michael Brown was black. It's outrageous because a young man was murdered. (Yes, that's conclusory, but as far as I can tell there's no reason to think it was anything other than murder, except that the perpetrator was an on-duty cop and there seem to be people who increasingly think that it's just a logical impossibility for an on-duty cop to commit murder). It's doubly outrageous because the murderer was a member of the government, of law enforcement, sworn to protect the people. Which, you might think is a bit inconsistent with murder. And the outrage is compounded by the fact that this happens a lot. And it pretty clearly doesn't have to: other countries simply don't experience significant numbers of murders by their police officers (and also don't suffer rampant violent crime by the thus-emboldened criminals).

So where does race enter the story? Because essentially all the victims of police murder in this country happen to be black. Or to put it another way, race only enters the equation because racist, violent police officers put it there. Michael Brown's death was an outrage simply because he was human and he was murdered. The point is that he was murdered because he was black, as an awful lot of other people have been. So it's really not about race, and it's certainly not really about his race. It's about racism, and the racism which seems to spawn most of the police violence and brutality in this country. This is also, of course, why you see lots and lots of white people every bit as outraged as any black person about Ferguson (or at least very nearly; I wouldn't want to presume that those of us who don't live under this threat can quite understand just how terrifying it is). The conflict here isn't white against black, it's racists against non-racists. The former are a rather large subset of white people; the latter are a coalition of non-whites and white liberals. And those of us in the not-racist coalition are all equally outraged about Brown's death, and about the conservative indifference to his death (sorry, did I say conservative? I meant racist, it's so easy to get confused these days). We'd be equally outraged at the shooting of a white person by cops, except that, well... that doesn't happen so much.

Any guesses why that might be, Fox contributors?

::crickets::

Also, Regarding "Justified Shootings"

Okay, one last thought about the whole Ferguson thing. As part of their coverage of the Ferguson outrages this week, Vox.com put up a post called, "When is it legal for a cop to kill you?" The idea was to educate people about the law governing police shootings, which is basically that, as a matter of constitutional law, cops may shoot someone to protect their life or the life of a third party (as may anyone else who's in a position to do so), and they may also shoot a suspect fleeing a crime scene if and only if they have probable cause to think the suspect has committed a violent felony. And the main reaction I kept having to reading the article was, okay, but do you have to actually kill the person? Like, we can put on our philosopher's hats and think about when it's morally justified to kill someone, and we might come up with something a lot like these two situations. The first one makes a ton of sense: in a choice between "murderer kills innocent person" and "attempted murderer is killed," you choose option #2 every time (except, maybe, in some sort of action-movie scripted scenario where the attempted murder in question is actually justified for some reason, heh). The second one is a bit tougher to justify given the level of uncertainty that may often be involved, but at the very least we can see why not letting someone you know to be a murderer flee a crime scene has some of the same elements of not letting someone shoot someone else.

But just because killing the person in question might be somewhere above the ethical replacement-level line, that doesn't mean it's the best thing. Ideally you'd manage to both prevent the violence/apprehend the suspect and not kill anyone. Now, I get why it's not a great idea for cops to shoot dudes who point guns at other dudes in the leg. In that circumstance, I get shoot to kill, and honestly, if you point a gun at someone else and make it pretty damn clear you mean to shoot them, you don't have that much of a complaint if someone else shoots and kills you first.* But in the second circumstance? The only possible reason for preferring to shoot a fleeing suspect in the chest is that you're more likely to hit them that way. Stipulating that your bullet will find its target, shooting in the leg accomplishes 100% of what shooting in the chest would, minus the gratuitous killing. Hell, shooting with some sort of stun gun/tranquilizer dart/tazer would accomplish 100% of what shooting to kill would, minus the gratuitous killing.

So basically what I'm saying is, shouldn't there be some kind of narrow tailoring here? Shouldn't there be some effort to minimize the amount of killing that goes on, rather than just saying, "well, I can make a case that killing this person isn't worse than leaving them uninterfered-with, so I'm gonna kill them"? Shouldn't there maybe be a rule that, if you could've chosen a less-likely-to-cause-someone's-death option that would probably have gotten the job done just as well, you weren't exactly "justified" in using the more-likely-to-kill option instead? Maybe that can't be as a matter of law; maybe you shouldn't be sent to jail for such a decision. But shouldn't you, y'know, get fired for it? Or something? One way or another I know that other countries get by without having their police forces shoot so many people dead, so there must be something we could do to have that happen less often here that wouldn't be a disaster. It seems to me like a moral imperative of the first order that we try.


*Of course, there is the ol' grey zone where someone does something that makes it unclear whether they're about to try to shoot someone. Like, for instance, the guy who was shot earlier this week (not in Ferguson, I believe, just elsewhere in America, the Greatest Country Ever or so I'm told) carrying a toy, plastic rifle around a Wal-Mart. Or when someone goes to fish their wallet out of their pocket for ID or whatever and the policeman thinks they're going for a gun. (Because concealed carry doesn't have any downsides whatsoever...) I feel like the balance that an awful lot of police seem to strike in these situations is to basically give complete, 100% priority to protecting their own life, and 0% priority to making sure they don't kill an innocent person. That does not seem like a particularly good balance to me, since they're both, y'know, human beings who aren't in the act of trying to murder anyone. In fact, since the police officer but not the totally random dude off the street has literally signed up to risk their life in defense of the populace, I think there's a valid though by no means slam-dunk argument for giving more weight to not killing totally random innocent dudes than to letting cops protect themselves. But at the very least they've gotta give more weight to that interest than they do now, right?

My Problem with Washington v. Davis

Washington v. Davis is a 1976 Supreme Court case which ruled, in essence, that the Fourteenth Amendment's Equal Protection Clause is not a self-executing ban on all government policies which have racially disparate impacts. That is to say, just because some policy has a more negative effect on black people than white people is not enough to make it into a violation of the Equal Protection Clause. To be even more specific, the point is that if all the person challenging the policy can show is that such a disparate impact exists, they lose; instead they need to show that the policy had racially discriminatory intent. Now, in some sense this has to be right. Most states fund themselves predominantly through property taxes and sales taxes and therefore have regressive tax codes, unlike the income-tax-funded federal government. Black people tend to be poorer, and are therefore disproportionately burdened by regressive tax codes. But the Equal Protection Clause cannot reasonably be construed as making sales taxes off-limits. My tendency has been, therefore, to say that I more or less agree with the statement in Washington v. Davis that disparate impact alone does not make a constitutional violation, though I might want to press pretty hard on letting disparate impact be considered evidence of discriminatory intent, perhaps even in the absence of any other evidence.

But then let's consider the specifics of the case Washington v. Davis itself, and how it relates to this week's outrage in Ferguson, Missouri. The facts of the case are that two African-Americans had applied for positions in the Washington, D.C. police department, and had been rejected based on their scores on Test 21, a verbal skills test used throughout the federal bureaucracy. They sued, because as it happens, black people failed Test 21 at a much, much higher rate than white people. (Like three times higher I think, roughly 60% versus 20%.) Now, interestingly, the Court also ended up ruling that, in fact, there was no disparate impact, because the Civil Rights Act of 1964 uses a disparate impact standard. I'm not exactly sure how they got to that conclusion, and my guess, from a judicial-sociology perspective, is that the main difference between dissenters Thurgood Marshall and William Brennan and the majority was their understanding of the disparate effects of the policy.

But in any event, now let's ask the key question: assuming, for the sake of argument, that the effect of Test 21 was to result in a more-or-less all-white police force in a majority-black city, and also assuming for the sake of argument that Test 21 was adopted with absolutely, positively no intent for that to happen, but only with intent to make sure that police officers had good verbal skills (an undoubtedly good thing!), is there really no problem here? Because, as we see so dramatically in Ferguson, the police are basically the instrument of government. They are the ones who actually impose governance and law upon the people. They are the ones who wield the violent force which the government is said to have a monopoly on the legitimate use of. And they, therefore, are the ones in position to perpetrate government abuse of the people. Hell, they're in a better position to do that than legislators, whose abusive actions can be more easily challenged in and nullified by the courts. When a cop kills someone, well, there's no such thing as compensatory damages for that.

And so I think there's a very real sense in which having a police force almost exclusively comprised of members of the historically oppressor race policing a large population of the historically oppressed race is kind of, y'know, just not okay, whether or not you meant for it to happen. For similar though arguably less weighty reasons ('cause we're not talking about the people walking around with guns on their hips), I think it's just not okay to have policies in place whose result is that your state bureaucracy is segregated into an all-male group of powerful office-holders and decision-makers and an all-female secretary pool. (That's the facts of the next case in the disparate impact sequence, Personnel Administrator of Massachusetts v. Feeney.) And I become particularly skeptical of the actual facts of Washington v. Davis when I think about how easy it is for verbal skills tests to become, in essence, whiteness tests. I mean, hell, there's a reason why segregationists used literacy tests. Now, yes, there does have to be some accommodation to the perfectly legitimate government interest in making sure its people can basically communicate. But guess what? Adult black people tend to communicate with one another pretty well. So if your "verbal skills test" is flunking most of them, maybe that means you're really testing mostly for "ability to talk like a white person," something that probably isn't that necessary for being a Washington, D.C. police officer. And shouldn't that be unconstitutional, even if it was kind of accidental? If we believe that the constitution commits us to racial equality (which we do; see Brown v. Board of Education), and if we believe that it forbids systems of caste, shouldn't it just not be possible to constitutionally set a whole bunch of white dudes to police a large black population?

Big Government, but Actually

So, I've written before about how I dislike the phrase "big government," or at least the way it gets used these days. This week's disaster in Ferguson, Missouri, where yet another young, unarmed black man was shot and killed by police and where those same police have responded to the wave of protests said murder occasioned by using military equipment on their own citizenry, is, I think, a really powerful demonstration of that point. Because this is big government, real big government. This is government which is big not in its budget or in its bureaucracy but in its capacity for physical force. And let's remember, physical force is what makes a government a government. Literally, governments are defined by their relationship to violence. That's how you tell what's the government in any given area, really: you look to see who has a monopoly on the legitimate use of force. Well, I say "legitimate," because I guess they're only one competitor in the illegitimate-use-of-force market, if a rather major player. And so I think the most meaningful possible sense of the phrase "big government" has got to be a government with an aggrandized relationship to violence. Like, say, a government which has gone around equipping local police forces with military equipment mainly because it (the military equipment) was there, meaning that the so-called "War on Drugs" just had to turn itself into an actual, literal war against the American people, or rather against those of the American people who have the misfortune of dark-colored skin. That's what we're seeing in Ferguson, and that's what's really worth railing against. That and the highly-related surveillance state form of "big government." There's a pretty good reason to think that a government which is spying on its populace and which has in essence armed itself against that populace as against an enemy military power is doing something wrong, and is at the very least a pretty real threat to the people it's meant to serve. There's no great a priori reason to think that a government with many regulations or with a large budget is doing something wrong. One of these things deserves to have the derisive "big government" label slapped on it, the other doesn't. At least Rand Paul has the decency to object to both.