The United States Marshals Service famously is the nation’s oldest federal law-enforcement agency. It supports the administration of the federal judiciary by providing courthouse, judge, and witness security and handling prisoner custody and fugitive apprehension, among other things that are difficult for judges, who tend to be limited to activities like issuing written orders and rulings, to accomplish as a practical matter.
Our conventional understanding of the checks-and-balances system does not accord much checking authority to the judiciary, however, which essentially is limited to declaring that a congressional or executive action is unconstitutional. If the chastised branch does not come to heel, there would seem to be little the judiciary can do, except perhaps issue another order.
In 1955, the Supreme Court did just that. Faced with inaction following its landmark ruling in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (Brown I), which rejected in public schools the separate-but-equal segregation regime previously authorized under Plessy v. Ferguson, 163 U.S. 537 (1896), the Court issued its Brown II decision, demanding that schools desegregate “with all deliberate speed.” Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 301 (1955) (Brown II).
(Somewhat interestingly, some view the “with all deliberate speed” language not to mean “quickly,” which I think is how it is taught today, but as creating a “loophole . . . that allowed Southern states to stall racial equality.” This view may stem from the procedural particularities of the Brown II ruling, which sent various post-Brown I challenges back to various federal trial courts and charged those courts with the task of entering new “orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Id. Thus, “without an official court order, states could essentially take as little or as long a time as they deemed necessary to desegregate their school system.”)
Still, despite the Brown II reprimand, inaction persisted in some quarters such that necessitated President Dwight Eisenhower’s use of federal soldiers to force compliance in Little Rock.
Less than two weeks into his term, President Donald Trump’s administration has presented the nation with a similar sort of constitutional problem. On Friday, he issued an executive order banning non-citizens from entering the United States from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen for ninety days and suspending the Refugee Assistance Program for 120 days. The executive order also provides that, “upon the resumption of the [Refugee Assistance Program] . . . the Secretary of Homeland Security  is further directed to . . . prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Given the executive order’s focus on countries with majority-Muslim populations, many recognize this language as a religious-based carve-out for Christians. Among other things, the executive order also places a cap– at 50,000– on the number of refugees who will be allowed to enter the country during fiscal year 2017.
The next day, multiple federal trial judges separately issued temporary restraining orders to petitioners who had arrived in the country with previously valid immigrant visas but were detained at airports under the new executive order and lawful permanent residents. The court orders are supposed to halt enforcement of key provisions of the executive order and prevent removal of affected individuals from the country. (Numerous other legal actions have been filed challenging the order.)
Precise information is difficult to come by, but there have been reports that U.S. Customs and Border Protection (the sub-agency of the Department of Homeland Security charged with law enforcement at the nation’s borders) officials were refusing to comply with the court orders staying enforcement of the executive order by continuing to detain or deport people attempting to enter the country and denying detainees access to legal counsel. A DHS press release stating that the agency would continue to enforce the executive order mentioned, though seemingly deemphasized, the court orders. A more recent press release from CBP asserts that the agency “immediately began taking steps to comply with the [court] orders and did so with professionalism.”
A refusal by the executive branch to comply with federal court orders could present an even more significant constitutional problem than the one at issue surrounding Brown, because it would present a direct challenge to the judiciary by a coequal branch, and because an Eisenhower-like intervention would be unavailable.
There is no obvious path to resolution of such a head-on affront to the authority of one branch of the federal government by another, and this particular gap in the federal governing apparatus is the most vulnerable one. While some have looked to the Marshals to address the currently brewing conflict, it remains unclear what they actually could or would do:
In the meantime, while the possibility of a constitutional crisis looms, uncertainty likely exists as a very real detrimental consequence for those directly affected by the conflicting executive and judicial orders.
As a momentary closing point, here is a recent passage from a judicial decision written by Judge Neil Gorsuch, the person President Trump this evening nominated to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, quoted in a news report, that suggests that a Justice Gorsuch would be concerned about separation-of-powers matters and would look upon an expanding executive branch in that context with a critical eye:
GUTIERREZ-BRIZUELA v. LYNCH: In this 2016 case, Gorsuch wrote for a panel of judges who sided with a Mexican citizen who was seeking permission to live in the U.S. The case gave Gorsuch an opportunity to raise an issue he has championed in his time as a judge: whether courts should so readily defer to federal agencies in determining what laws and regulations mean.
Referring to high-court cases that Gorsuch believes cede too much power to agencies, he wrote: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is [Supreme Court precedent addressing executive-branch authority] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
Yesterday was Memorial Day. The legacy and cost of wars as public policy decisions can be told in gruesomely sterile bar graphs. It is relatively easy to discuss and analyze an issue by aggregating the participants and then slicing and dicing them in the pursuit of answers and pseudo-conclusions. War merits inspection on an n=1 basis as well. Even though that sort of inspection is difficult and expensive, and even though its results are not readily translated into things like bar graphs and statistical tables, it remains necessary. This is particularly so given the sense that our armed forces draw their volunteers from increasingly narrow demographic subsets. Considering the individual soldier, even (perhaps especially) if she is not personally known to the considerer, is worthwhile and valuable.
Individualized humans can communicate messages to other humans that statistical humans cannot, and, in the course of placing at risk human lives, regard of the former ought at least to compliment analysis of the latter.
If you die in the United States and your death is someone else’s fault, your surviving family members probably can recover legal damages (i.e., money) from the person who wrongfully caused your death. For example, Georgia allows a surviving spouse to recover “the full value of the life of the decedent, as shown by the evidence.” O.C.G.A. § 51-4-2(a). Placing a monetary value on a human life is a notion and, subsequently, a process fraught with moral, ethical, and practical obstacles, but, as democracy is to forms of government, we have come up with scant else in the way of providing a legal remedy to the surviving victims of a wrongful death. (Indeed, the availability of civil wrongful death actions offer these victims at least two things the criminal justice system does not provide: 1) the possibility of receiving tangible compensation– again, in the form of money– for the loss of their family member, and 2) the ability to control the legal action directly, as the plaintiff in the lawsuit, rather than as an observer to a criminal case controlled by a government prosecutor, who is not strictly bound by the wishes of surviving victims.)
If someone decides that you are going to make Alabama your eternal sweet home, though, things will go a bit differently for your surviving kin than they would had you died in neighboring Georgia, or, really, anywhere else in the country. Unlike those in other states, Alabama’s wrongful death statute does not afford survivors the right to recover based, in some measure, on the value of the life of the decedent; instead, Alabama courts have made clear that only punitive damages are available to wrongful death plaintiffs. Atkins v. Lee, 603 So.2d 937, 942-43 (Ala. 1992). Rather than compensating the surviving family of the deceased for the lost value of their deceased relative’s life, punitive damages are designed to punish the wrongdoer and thereby deter such wrongdoing in the future. Instead of the value of the life of the particular deceased individual, in Alabama, the sole measure of damages potentially available to wrongful death plaintiffs is based on the (jury’s view of the) reprehensibility of the wrongdoer’s action:
The amount of damages should be directly related to the amount of wrongdoing on the part of the defendant or defendants. In assessing damages, [the jury is] not to consider the monetary value of the life of the [deceased], for damages in this type of action are not recoverable to compensate the [family] of the deceased from a monetary standpoint on account of his death, nor to compensate the plaintiffs for any financial or pecuniary loss sustained by the family of the deceased on account of his death.
Id. at 943. As the Alabama Supreme Court explained, this restricted approach “rests upon the Divine concept that all human life is precious.” Id. at 942.
Alabama’s adoption of the legislative premise, whether “Divine” or otherwise, “that all human life is precious” is laudable, but the state’s unique wrongful death statute does not necessarily operate to advance the goal of valuing all human life equally. First, it simply does not treat each case identically, as different juries will award different amounts to wrongful-death plaintiffs in different cases (based upon the reprehensibility of the wrongdoer’s action). Second, by taking a purely punitive stance, the civil action essentially duplicates the purpose of any companion criminal action. Third, and related to the second point, it is not obvious that a strictly punitive civil arrangement operates as a greater deterrent on actions resulting in wrongful deaths than the more common, compensatory schemes of other states. Fourth, and related to the third point, the practical effect of this statute is that it is more difficult for wrongful-death plaintiffs to collect in Alabama than it would be if their deceased relative died in a different state, because they must convince a jury of the (degree of) wrongfulness of the defendant’s actions that caused the decedent’s death instead of focusing on the value of the life lost, which can be challenging when the act that caused the death looks more like mere negligence than intentional homicide. Indeed, and fifth, the result of Alabama’s approach is that the wrongdoer effectively is allowed to determine the value of the life lost; whatever label the state applies to the variety of damages recoverable, it seems likely that plaintiffs in Alabama will, for all practical purposes, view whatever they recover in a wrongful death action to represent a measure of what they wrongfully lost.
There is nothing necessarily wrong with enacting idealistic or aspirational legislation. Such pronouncements can serve practical purposes, and a document like the Declaration of Independence would seem to serve as a good example. Legislatures must take care, though, that the immediate practical effects do not serve to undermine, in actual effect, the principled stance taken. When that happens, one rightly wonders about the government’s true aim. Is Alabama’s goal to treat “all human life [as] precious,” or is it simply to make the legal landscape less hospitable to wrongful death plaintiffs and their attorneys?
Eight months later, another American city is undertaking physical confrontation of questions sometimes forcefully presented that, distilled, are fundamentally straightforward. Answering them has proven challenging, however.
The binary nature of many of the relationships and interactions at issue can lead to both clarity and confusion. This remains a time for asking questions (and seeking answers to those questions), rather than drawing conclusions:
It is an open American wound in one of our great American cities, and any attempt to conscribe some “lesson” to be learned, some overarching A-to-B “The More You Know” takeaway is an insult to the density of the situation both in Baltimore and the rest of the country. (The president’s response Tuesday on this was telling; he actually apologized for giving such a long answer.) Life is impossibly confounding, from every angle — the best you can do is just try to have empathy for every individual human being and admit that none of us can truly know anything. I can’t boil it down to any conceivable essence without losing its bottomless complexity, and neither can you. Distrust those who try. They are attempting to sell you something.
At the risk of losing this site’s sponsoring advertisers, I will press on just a little further in order to note the following:
Justice demands that participants in the riots are identified, arrested, and charged with whatever crimes they committed. Their unjustifiable violence endangered innocents, destroyed businesses, and harmed the economic future of largely black neighborhoods; they earned the frustrated contempt of Baltimore’s mayor and members of its clergy and strengthened the hand of the public-safety unions that are the biggest obstacles to vital policing reforms.
But a subset of Baltimore police officers has spent years engaged in lawbreaking every bit as flagrant as any teen jumping up and down on a squad car, however invisible it is to CNN. And their unpunished crimes have done more damage to Baltimore than Monday’s riots. Justice also requires that those cops be identified and charged, but few are demanding as much because their brutality mostly goes un-televised. Powerless folks are typically the only witnesses to their thuggery. For too long, the police have gotten away with assaults and even worse. The benefit of the doubt conferred by their uniforms is no longer defensible.
There exists a binary relationship between the law and the citizenry as well. In practice, the making of the former ought to reflect the– perhaps aspirational– values of the latter. The enactment of laws enshrining principles of equality is no small feat, a fact to which older generations can attest. Yet, as the exceeding of boiling points in Ferguson and Baltimore within the past year reveal, the still greater challenge remains the actual living under and abiding by those governing principles of equality.
For some, recent events in Ferguson and Baltimore come as revelations that fundamental power, class, and race conflicts persist in this country. (For many others, of course, knowledge of the reality of these conflicts did not come recently.) These protests and related events do not represent a step backward, though, because their underlying drivers are not new, and because the effort to carry out enacted policies of equality and justice comes as a natural and subsequent step following the enactment of those policies.
At this time, however, many questions remain.
The growth of media and communication technology has provided us with greater volumes of utterances from more people than ever before. It is easy to capture the unfiltered, unvarnished thoughts of a broader portion of society. With emphases on access and immediacy, people are publishing more of their regrettable opinions, jests, thoughts, and other statements that upset members of their audience.
Setting aside an evaluation of the person-by-person authenticity of the widespread responses to off-color jokes, for example, the speakers’ apologetic responses to the reaction to these increasingly frequent statements have settled into a pattern that merits brief examination.
A recent instance of this now-reflexive call and response came earlier this month. MMA fighter and media personality Chael Sonnen was on Fox Sports Live, new sports network Fox Sports 1’s version of ESPN’s SportsCenter, to discuss boxer Floyd Mayweather’s match against Canelo Alvarez. Criticizing the perceived quality of Mayweather’s recent opponents, Sonnen said:
I’ve never seen anybody in the history of America get so rich and so famous off of having complete wimps throwing punch at their faces. I know what you’re saying. You’re saying, “Well, it’s happened before, what about Rihanna?”
Video of the segment is available here.
Sonnen’s inartful, imperfect analogy between Mayweather, who happened to have served jail time for domestic abuse, and Rihanna, a pop singer and a domestic abuse victim, triggered the issuance of an apology from the network before Sonnen’s remarks could blossom into a larger controversy:
FOX Sports regrets the comments Chael Sonnen made during last night’s edition of FOX Sports Live. They were an inappropriate attempt at humor that Sonnen acknowledges shouldn’t have been made and he apologizes to anyone who may have been offended by his remarks.
This cycle– statement, reaction, apology– has become both rote and swift in American media culture, to the point where a) the reaction phase no longer is a necessary way station before the apology, and b) the apology itself has become formulaic, always addressed to “anyone who may have been offended.”
The ubiquitous and seemingly harmless addendum about “anyone who may have been offended” is, at best, counterproductive. First, while the phrase usually comes at the end of the “apology,” blunting and qualifying what otherwise might simply be, “I’m sorry,” it actually indicates a limited, defined audience for the “apology.” Rather than allowing for a statement that could be simultaneously broader and more direct, this phrase shifts the attention and onus from the person who made the original statement to those people upset by the remark and whose sensibilities ostensibly necessitated the apologetic charade. This linguistic shift then draws negative attention to these supposedly overly sensitive people, who, it then will be said, must be members of the “P.C. police,” seeking nothing more than the suppression of free speech and the enforcement of antiquated moral values.
Second, and perhaps more fundamentally, the phrase renders the apologetic nature of the statement, because it refuses to acknowledge that even one person actually upset by the statement exists; at best, it is a conditional apology. A conditional apology is no apology at all, particularly where the apology’s recipients are not equally able to engage in dialogue with the apology’s issuer.
To remedy these deficiencies, in reverse order: 1) change “anyone” to “those” and “may have been” to “were,” so that the apology is addressed to “those who were offended” and the focus remains on the person apologizing, and 2) remove the phrase altogether. “I’m sorry for saying what I said” works just fine on its own.
It has been a long time since I have read fiction. Nonfiction has comprised effectively the entirety of my pleasure reading for years, and spending the past year developing ALDLAND has meant that sports news (i.e., more nonfiction, with the exception of hockey teams’ playoff injury reports) has dominated my online reading as well. Once I set aside Justice Breyer’s book earlier this year, I began to contemplate a return to fiction. I’m not quite ready yet, though, opting first to tackle Michael Sandel’s latest, which I’ve nearly finished. I also have contemplated reading Hampton Sides‘ Hellhound on His Trail: The Stalking of Martin Luther King, Jr. and the International Hunt for His Assassin next just as an excuse to remain in nonfiction’s friendly waters.
My inexplicable resistance to fiction nevertheless is slipping, however. Although I had no intention of reading or buying Jay Caspian Kang’s debut novel, The Dead Do Not Improve, I had been hearing about its release for a year, so it was easy enough to decide to take a peek when the Grantland blogger offered the first thirty-five pages of his book for free perusal online. My reactions to the experience of reading the opening of Kang’s novel were not complex or groundbreaking. My first thought was that it felt not so bad to be reading fiction again. My second was that the text seemed awfully autobiographical, and I couldn’t decide whether that irritated me. My third thought was confirmatory of my preconceived notion that there was no need for me to buy or read (now, the entirety of) this book. My fourth thought, upon completing the excerpt, was that maybe I would get the book, as a flippant way to ease back into fiction. I suppose that’s marketing at work, but my idea was that, rather than hold out on fiction not because I didn’t want to be reading it but because I felt I had to reengage in a particular way, and the choice of which fictional work would be my first would be too fraught.
I was not expecting to see any more of Kang’s text anywhere outside of the book’s covers when I came upon his recent Gawker post. Apparently a lot of other people thought The Dead Do Not Improve seemed pretty autobiographical too. For some reason, this (again, apparent) sentiment put Kang on the defensive, so he took to Gawker to try to tamp down the issue by presenting yet another, albeit much shorter, segment (italicized below by me for clarity) of the novel, this time with new annotations included:
To try to shove that top-down question of “how much of your life is in your character” and all of its political implications a bit further out to pasture, I’ve annotated an excerpt from The Dead Do Not Improve to tell you exactly what parts came from my life and what parts did not. My hope is that you will find these details to be about as unimportant as they ultimately are.
The true parts I have tagged IRL. The fictional parts are tagged FICTION.
Those mornings in the parking lot with my three friends, the Ronizm mornings: Seth Bloomberg (IRL: name altered) picked me up at seven-twenty on the dot.
In precal, I sat between Heba Salaama and Paul Offen. Years later, Heba Salaama, better known to the greater student public as Heavy Salami, won a hundred thousand dollars on some network TV weight loss show (IRL), but back before her dreams came true, in those pre-9/11 days when the last name Salaama was simply a curiosity, Heba was the terrifying, ethnically ambiguous girl who sat next to me in math, who kept telling me that I smelled like weed (IRL), who threatened to tell Ms. Butler if I didn’t let her copy last night’s homework (FICTION).
The entire exercise is available here. Upon reading all of it, my immediate reaction is that whether “these details” are “unimportant”– to the reader’s experience of Kang’s novel, presumably– is beside the point.
I chose the two excerpts of the excerpt that I did because they demonstrate a) Kang’s ability to use a particular, basic literary technique, and b) his decision not to employ that technique in a particular instance. Explicitly, Kang’s annotation reveals that he knows how to write about a person he’s met while disguising that person’s identity by using a different name, an elementary and widely accepted technique. There is nothing objectionable about writing about real people in the fiction context; indeed, it seems like it would be difficult to write convincing fiction about human beings without having met and being influenced by one or two. Still, as a matter of common courtesy and because there’s little to be gained by using real names, authors usually use a different name for their character. Like any author, Kang is familiar with this technique, and he demonstrates it with the character he calls “Seth Bloomberg.”
In the second excerpt, however, Kang declines to use this technique and goes out of his way to let us know that he’s chosen not to. “Heba Salaama,” the protagonist’s classmate, is a real person, and her name is Heba Salaama. Kang not only expressly tells us this, but he goes further out of his way to let readers know that Salaama is a real person by linking to a video of her. Within one sentence, Kang makes pointed reference to Salaama’s weight and ethnic background and mixes in a fictional part about academic cheating (recall the actual book does not contain the annotations being discussed here) before moving on to an extended discussion of his actual high school’s “lone autistic kid,” whose real name Kang also uses.
The issue here is not that Kang’s protagonist, named for another of Kang’s actual classmates, dwells on the physical characteristics, ethnic background, or mental capacity of other characters. Writers should be honest in this way, and protagonists, however autobiographical, do not have to be morally good people. Instead, the issue is why Kang felt the need to use the real names of real people like Salaama. Even if it isn’t a requirement for their protagonists, writers ought to be morally good people, and even though morality isn’t necessarily about balancing, two initial questions come to mind: 1) What does Kang gain by using the real names of people like Salaama?, and 2) What do people like Salaama lose when Kang incorporates them into his story, and publicly highlights likely unflattering episodes of their lives? For himself, Kang appears oblivious, which borders on the literally unbelievable.
Positive analysis has to do with descriptive, objective, fact-based observations; in essence, it asks, “what has happened?” Normative analysis, on the other hand, is subjective, and value-based; it asks, “what should happen?”
Different people use the “should” of normative analysis in slightly different ways, usually without taking care to precisely contextualize what they mean when they say that something “should” happen in a particular way. While public policy analysts and scientists, for example, usually seem to be mindful (or at least appropriately transparent) with their shoulds, economists seem to have some trouble in this area and may at times engage in overreaching normative analysis.
Economists ultimately are studying human behavior. When they make predictions about “what the market should do,” they really are predicting how people will act and react with respect to various signals. At a first level, there’s a simple feedback loop here. Unlike doctors stating the way in which a virus “should” mutate, for example, the real subjects of the economists’ normative statement can hear and react to the economists, and they often do. A second level recognizes that economists often have their own (implicit, unstated) preferences built into their normative assessments. A hydrologist doesn’t say that water and sediment ought to interact in a particular way because she personally wants them to. Conversely, it does not seem uncommon that an economist would say that the market ought to ignore a particular signal because she personally believes that the market is better off ignoring signals of that type.
The previous paragraph hints at the different uses of the normative “should.” One is predictive, based on collected past observations, data, and other indicia that lead an economist to render a conclusion about what “should happen in the future (based on what I have observed happen in prior similar circumstances).” The second is a value statement, based on personal preferences that lead an economist to render a conclusion about what “should happen in the future (based on how I prefer people and systems to act and behave).”
Failing to distinguish between these is problematic because the economist’s audience is a) unlikely to detect or make the distinction and 2) will assume the statement is of the first, scientific, predictive type and thus endow it with a certain level of authority to which it may not be entitled.
There also is a certain arrogance on the part of economists when they dress their personal value-based “should” statements like the more detached, scientific ones. This might be most apparent in the context of valuing human life, a topic that could itself fill numerous posts. Rather than phrasing the inquiry as determining the value of a human life, which many people find objectionable, economists refer to the value of a statistical life, apparently in an attempt to quell these lay fears by encouraging people to think about the question in a more detached, lifeless manner. Asking people how much they would pay not to be in a stadium of 100,000 people, knowing that a certain, small number (perhaps one) of those people would die, for example, is thin cover for the essential question of how much, in a monetary amount, we value a particular human life. I’m not saying we shouldn’t confront such questions– things like risk-risk analysis are important– but when economists tell us we should value our own lives or the lives of others at a specified dollar value, that we should be willing to subject ourselves or others to a particular increased risk of death, or even that we should or should not make a particular investment, their lay audience is right to bristle at them. They are right to bristle because the economist has made a value judgment for his audience, and the basis or framework for that value judgment is likely to exclude elements present in his audience’s value framework. Moreover, these sorts of presentations frequently seem to seek to justify and excuse business decisions to the detriment of broader, human interests. If economists are scientists of some variety, then the second sort of normative statements, the personal value-based ones, can quickly morph into pseudo science. See, e.g., here.
This all comes down to a matter of language. When economists say that the market should behave in a certain way, they really are saying something about the behavior of people. When they use such a statement to predict how they anticipate a group of people will act or react, the economists are acting in a beneficial way, and their audiences properly rely on them because they are speaking within their authority as experts on how people tend to behave in similar situations. When they use such a statement to tell people what to do with their own resources or lives because the approach fits the economists’ vision of how people and markets best function, the economists may be acting in an arrogant or deceitful way, and their audiences improperly rely on them because they are extending beyond their authority as experts. Cf. the difference between ontological and deontological approaches.