Yale Law Journal - Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis

Yale Law Journal - Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis
JEDEDIAH BRITTON - PURDY , DAVID SINGH GREWAL ,
AMY KAPCZYNSKI & K . SABEEL RAHMAN
Building a Law-and-Political-Economy Framework:  Beyond the Twentieth-Century Synthesis

Abstract. We live in a time of interrelated crises. Economic inequality and precarity, and
crises of democracy, climate change, and more raise significant challenges for legal scholarship and
thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies
and practices that reaffirm the inequities of the current era. In particular, market efficiency, neu-
trality, and formal equality have rendered key kinds of power invisible, and generated a skepticism
of democratic politics. The result of these presumptions is what we call the “Twentieth-Century
Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals
it from analyses of power.

This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new “law-and-political-economy approach” to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power,
equality, and democracy at the center of legal scholarship.***

from the Conclusion***Political fights interact generatively with scholarly and policy debates in
pointing the way toward a more democratic political economy. The emergence of new grassroots movements, campaigns, and proposals seeking to deepen our democracy is no guarantee of success. But their prevalence and influence make clear the dangers and opportunities of this moment of  upheaval—and highlight the stakes of building a new legal imaginary. Neoliberal political economy,
with its underlying commitments to efficiency, neutrality, and antipolitics, helped animate, shape, and legitimate a twentieth-century consensus that erased power, encased the market, and reinscribed racialized, economic, and gendered inequities. By contrast, a legal imaginary of democratic political economy, that takes seriously underlying concepts of power, equality, and democracy, can in-
form a wave of legal thought whose critique and policy imagination can amplify and accelerate these movements for structural reform—and, if we are lucky, help remake our polity in more deeply democratic ways.

China Says We’re a Joke. And, Alas, We Are. | Talking Points Memo

This has been my take.  After the usual self-protectiveness and fumbling the Chinese sytem went into full campaign mode to stem the novel corona virus and they did.  The first U.S. take was "oh, sure, they're a dictatorship".  We can't do it that way (build a hospital to isolate CV+ patients for two weeks, etc.  Can't or won't, we didn't. And we have a malicious clown at the top of our pyramid. - GWC
China Says We’re a Joke. And, Alas, We Are. | Talking Points Memo
by Josh Marshall
***But big picture, good lord, pretty much completely guilty as charged. China initially bobbled the outbreak, had a major crisis. They mobilized. They shared information with the world. They mounted a massive, historic containment effort, built whole hospitals in a matter of days. The US hung back and did a mix of ignoring it or talking down to the Chinese. Look how they wear masks! Haha. Masks don’t work. Whether poo-pooing or derision the big message was that this didn’t have anything to do with us. Or it was a hoax. Until we had our own catastrophic outbreak and then suddenly you didn’t tell us! You hid the truth from us! You will pay the price! Also please send us masks! We really need masks! Please!

My take on The Harvard Crimson’s “The End of the Harvard Century” and The Yale Daily News’s “No Lux or Veritas” — Jerome A. Cohen | 孔傑榮（柯恩）

My take on The Harvard Crimson’s “The End of the Harvard Century” and The Yale Daily News’s “No Lux or Veritas” — Jerome A. Cohen | 孔傑榮（柯恩）

Review: Cathleen Kaveny's book 'Ethics at the Edges of Law,' Part 1 | National Catholic Reporter

Review: Cathleen Kaveny's book 'Ethics at the Edges of Law,' Part 1 | National Catholic Reporter
Review - Part 2
by Michael Sean Winters

When I first opened the pages of Cathleen Kaveny's book Ethics at the Edges of Law: Christian Moralists and American Legal Thought, I had not anticipated that the nation would, on account of the coronavirus, be forced to confront some of the most foundational issues of law and culture. Watching these libertarian Tea Party activists wave their Gadsden "Don't Tread on Me" flags as they climb the steps of their state capitols, protesting public health restrictions as infringements of their civil liberties, it is easy to dismiss them as yahoos, incapable of admitting that their dream of untreadable autonomy is a nightmare already attained in the anarchy of a country like Somalia. But here we are.

9780190612290.jpg

"Interdisciplinary" is one of those catchy words, not quite jargon, that academics like to invoke which really do not mean very much. If you are organizing an academic conference, you might bring together an historian with an economist and a theologian and each will look at a particular issue from their vantage point, but there is no real effort at, nor aptitude for, synthesis. Ours is an age of hyper-specialization, which makes interdisciplinary efforts difficult and they often yield nothing but mush. If there is any cross-pollination, it occurs amongst the audience members who may, or more likely may not, allow that interdisciplinary discussion to cause them to embark on an intellectual path that might otherwise have remained untrod. Meanwhile, academics must attend to increasingly minute topics and subtopics, generating peer-reviewed articles for the Northeast Minnesota Ecclesiastical Review that will be read by few in their own field and precisely no one outside it. Interdisciplinary scholarship has been a phantom.

Until Cathleen Kaveny came along. The Boston College theologian and law professor's book brings Christian moral theologians such as John Noonan, Stanley Hauerwas, Paul Ramsey and Mercy Sr. Margaret Farley into dialogue with the American legal tradition. The result is not amorphous at all but, instead, a dialogue that yields real insights into the lessons moral theologians can learn from your local courtroom. It is less clear that the mutual enrichment works as well in reverse. And, as the politics of the pandemic has shown, it is not just at the edges, but at the foundations of law that we need to consider ethics and the demands on humankind our moral aspirations require.

Let's look in detail at how Kaveny begins the book to discern her method. She credits one of her mentors, John Noonan, for his part in reintroducing the idea of historicity into Catholic ethical thinking in this country with his seminal work on the development of Catholic moral teaching about usury in the medieval period. In a word, that teaching changed. This was news to the Neo-Scholastic moral theologians of the mid-20th century whose syllogisms floated above history, providing certainty if little else.

Noonan's impact on Kaveny is clear: "We manifest our fidelity to the persons of the past not in slavish repetition of old formulas but rather in sensitively attempting to discern the core purposes of traditional doctrine and in creatively applying it to a new situation," she writes. "Such a process requires us both to understand and to judge our predecessors. In sifting through their thought, we must separate insights of enduring value from the rough bundle of time-bound presuppositions and failures of will and vision that trap them." The Noonanesque (and Newmanesque) echo is clear as a bell.

Moral theologians and judges must both consider the necessity of rules and societal norms as well as the particular situation of individuals in coming to a judgment about a particular act. Noonan had examined Judge Benjamin Cardozo's ruling in one of the most famous tort cases in history, Palsgraf vs. Long Island Railroad. Noonan criticized Cardozo's decision in which he not only ruled against the impoverished mother of three, but required her to pay the court costs for the railroad. Kaveny agrees that the decision deserved criticism, but comes at the issue differently from Noonan:

Criticizing Cardozo's failure to address the issues of social justice raised by the case, he locates its source in Cardozo's inability to see the persons standing before his bench. But to adopt this construal of responsibility toward persons would begin to blur the distinction between respect for persons and regard for impersonal rules that Noonan wants to maintain. To talk about precedent and the more generalizable features of persons' lives is to begin to talk about rules again, albeit fairly specific ones. If the objection to Cardozo's opinion is not so much that he failed to attend to Mrs. Palsgraf's particular troubles but to the more general feature of her social status, why not say that Cardozo articulated the rule of tort law in an unjust fashion?

 Kaveny presses further, noting that Noonan's wrestling with "the simultaneous merciful favor and just judgment of God" might elucidate some of the tensions his legal approach poses in this work. Citing Noonan's essential conception of Christian ethics as a matter of imitating Christ, Kaveny begins with a foundational observation: "First, since the relation between Christ's power as impersonal judge and his personal love as savior is ultimately a theological mystery, we cannot expect to work out its ethical implications in a fully systematic way." Think of how differently the debate regarding Pope Francis' apostolic exhortation Amoris Laetitia would have been if this observation had been stipulated by all concerned. Secondly, "when God's impartiality is set aside in the Bible, it is set aside on behalf of the weak."

The third conclusion is the one most challenging to more traditional ethical approaches: "divine mercy and judgment are ultimately focused on each person in all her individuality." The legal corollary from this ethical postulate is clear: "[N]o matter how sensitive a rule or category might be to general features of human need, earthly judges can never afford to ignore the particularity of the person standing before them. In the end, if a judge must err, it is better to do so in favor of the person rather than the rule. Equity trumps law."

Having examined how Noonan's ethical training affects his jurisprudence, now Kaveny looks at the opposite flow, how lawyerliness can and should affect Christian ethics, using Noonan's work on usury and contraception as a touchstone. She posits two core conclusions, the first that "legal argument is advocacy, not only of a particular conclusion or result but also of a certain way of viewing the world that supports and surrounds it … a truly excellent legal brief does not merely compile evidence but also proposes a vision of reality (or at least that portion of reality which is in dispute) that is more complete and compelling than the vision offered by the opposition."

Her second conclusion is less foundational and more cultural, but also sheds an interesting interdisciplinary light on these human conundrums. "[T]he fact that legal argument is oriented toward achieving a certain practical result for one's client means that the way lawyers approach authoritative sources differs from that of many scholars. … [T]he dominant question for a lawyer is not what to say to a controlling opinion, but what to do with it." The distinction is not small. "The opinion, itself one word in the continuing conversation of law, provides the raw material and the framework that enable the lawyer to exercise both creativity and judgment in proposing the next word. Some purposes are emphasized, some phrasing borrowed, other elements are downplayed or marginalized." This lawyerly approach allowed Noonan to amend his book on contraception after Pope Paul VI issued the encyclical Humanae Vitae in 1968, but to do so in such a way that he still found more possibilities for the development of doctrine than some more conservative ethicists discovered in that same encyclical.

Along the way, Kaveny's arguments are happily littered with piquant observations. "The burgeoning literature on the development of moral doctrine conveys the impression that the concept of 'development' itself is the theological equivalent of nuclear energy — acknowledged by all as a powerful and potentially helpful tool in theory, but intensely feared by some as dangerous and even deadly in practice," she writes. Or this: "Yet an unwelcome by-product of the salutary expansion of the field of moral theology has been the loss of a common canon that characterizes the field, or a common set of sensibilities that characterize its practitioners." Or this; "The culture wars in the Catholic Church have meant that the concern about the coherent practice of the discipline of moral theology has become too narrowly focused on the 'bottom-line' positions people hold." Each one of these sentences invites further reflection and development.

I shall conclude the review on Monday. See PART 2

Editorial: Dolan delivers the church to Trump and the GOP | National Catholic Reporter

Cardinal  Archbishop Timothy Dolan at St. Patrick's Cathedral

Editorial: Dolan delivers the church to Trump and the GOP | National Catholic Reporter

The capitulation is complete.

Without a whimper from any of his fellow bishops, the cardinal archbishop of New York has inextricably linked the Catholic Church in the United States to the Republican Party and, particularly, President Donald Trump.

It was bad enough that Cardinals Timothy Dolan of New York and Sean O'Malley of Boston, joined by Los Angeles Archbishop José Gomez, currently also president of the U.S. Conference of Catholic Bishops, participated in Trump's phone version of a campaign rally on April 25. With hundreds of others on the call, including Catholic educators, the bishops were once again masterfully manipulated. They previously gave Trump certain campaign footage when they delivered Catholics to his speech at the March for Life rally in Washington early in the year.

Now Trump will have Dolan's language from the call, telling everyone that he considers himself a "great friend" of Trump, for whom he expressed mutual admiration as "a great gentleman." The cardinal went on to say that he was "honored" to lead off the comments on the call.

The whole cringe-worthy exchange (yes, Trump did self-describe as "the best" president "in the history of the Catholic church") was made worse the next day when Dolan provided more campaign footage from inside St. Patrick's Cathedral in announcing that the president was "worshiping with us," purportedly livestreaming the Mass at the White House.

Friendships have existed in the past between U.S. presidents and princes of the church. How those affected the church's involvement in politics and policy, negatively or positively, differed from one circumstance to another. But it is rare, if not unprecedented, that the church's leadership apparatus would be co-opted to the degree seen in the case of Trump.

Certainly, it is without precedent that the leadership would cozy up so cravenly to a president whose most consistent attribute is an uncontrollable propensity for lying, continuously and about everything. He is dangerously disconnected from reality and is defined by characteristics that normally are condemned from pulpits.

In People of Hope, a book-length conversation Dolan conducted with journalist John L. Allen Jr. published in 2012, a chapter is devoted to politics in which the cardinal concedes that there is an understandable perception that the U.S. bishops are in a "de facto," in the questioner's words, alliance with the Republican Party.

The reality, Dolan contends, is more complex. "My experience is that we bishops are actually fairly scrupulous in wanting to avoid any partisan flavor."

One might reasonably conclude today that such scrupulosity has gone out the window. For Dolan and his fellow episcopal travelers, the all-consuming issue is abortion. That tops the agenda in any political consideration. Allen asked: "Are you saying that the perception of being in bed with the Republicans, or the political Right, is the PR price that has to be paid for taking a strong stance on abortion?"

"Yes, that's exactly right," Dolan answered.

Unfortunately, the bishops have paid a much higher price than poor public relations in their political strategy the past four decades. Abortion is a serious subject that they've turned into a political volleyball in a game with no winners except the groups on the extremes of the issue who cash in every four years, sustaining careers and an endless debate.

KEEP READING

U.S. must pay shortfalls to health insurers - Maine Community Health v. U.S.

When the Affordable Care Act was passed underwriters faced a difficult problem.  Neither the number nor the sickness of those who enrolled through its exchanges could be predicted with reasonable actuarial confidence.  And Congress put many restraints in place - mandatory coverage, limits on administrative  overhead, etc. So it guaranteed - for three years - that the federal government would pick up the shortfall.
But the Republican-led Congress refused to foot the bill. With no money appropriate the government refused to pay..  Several insurers, including Maine Community Health, sued.  The Tucker Act they said promised that the government would meet its obligations.  This one was stated plainly in a statute.
Yesterday the Supreme Court in an opinion by Justice Sonia Sotomayor, ordered the United States to pay the $12 billion owed.  Only Justice Samuel Alito dissented.  He cannot bear the thought of implying a cause of action not expressly created by statute.

Justice Sotomayor concluded with a ringing bit of originalist rhetoric:

The Government should honor its obligations. Soon after ratification, Alexander Hamilton stressed this insight as a cornerstone of fiscal policy. “States,” he wrote, “who observe their engagements . . . are respected and trusted: while the reverse is the fate of those . . . who pursue an opposite conduct.” Report Relative to a Provision for the Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander Hamilton 68Centuries later, this Court’s case law still concurs.

Plaintiffs defeat J&J Daubert motion in NJ talc powder cases

Plaintiffs defeat J&J Daubert motion in  talc powder cases  

In a major setback for Johnson & Johnson, the first federal judge to rule on the reliability of plaintiffs’ experts testifying about whether baby powder causes ovarian cancer has admitted them in potentially more than 16,000 lawsuits.

On Monday, in a 141 page opinion   Chief Judge Freda Wolfson, D.N.J. in New Jersey, who is overseeing the talcum powder multi-district litigation against Johnson & Johnson, found that five scientific experts for the plaintiffs, two of whom have testified before Congress on talcum powder safety, could appear before juries.
At the heart of her decision is recognition of the admissibility of opinions by epidemiologists who deploy a flexible weight of the evidence approach.  The consideration of what are called the Bradford Hill factors.  Sir Austin - the UK biostatistician - with Richard Doll designed the studies that established the carcinogenicity of tobacco smoke.  His 1965 essay The Environment and Disease: Association or Causation is the now scriptural resource.
The heart of epidemiology is an integrative approach which combines clinical, pathological, and statistical evidence, an approach I explored twenty five years ago in an essay titled Against the Odds.  A key resource identified by Judge Wolfson is the Reference Guide on Epidemiological Evidence in the Federal Judicial Center's Reference Manual on Scientific Evidence.

The ruling is a big win for plaintiffs’ attorneys, who for years have faced accusations from Johnson & Johnson about allowing “junk science” into the courtroom.

“For four or five years, Johnson & Johnson has said this is ‘junk science,’ that there is no reliable science to support these theories,” said Leigh O’Dell, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles, who is co-lead plaintiffs’ counsel in the MDL. Wolfson’s ruling found the plaintiffs’ experts had “used reliable methodology and their opinions are substantially supported by the science.”

“That completely obliterates that argument, and it’s very significant for the overall litigation,” O’Dell said.

Beasley Allen reports on its website about the experts now available for testimony at trial:The clinical experts initially challenged by the defense but now cleared to testify about the dangers of talcum powder use include:

• Anne McTiernan, MD, PhD – Research Professor at the University of Washington School of Public Health’s Department of Epidemiology and the University of Washington School of Medicine, and a cancer prevention researcher at the Fred Hutchinson Cancer Research Center.

• Arch “Chip” Carson, MD, PhD – Associate Professor and Program Director for the Southwest Center for Occupational and Environmental Health at the University of Texas School of Public Health in Houston.

• Daniel Clarke-Pearson, MD – Professor and recent Chairman in the Department of Obstetrics and Gynecology at the University of North Carolina-Chapel Hill, specializing in gynecologic oncology.

Judge Wolfson’s ruling allows additional testimony from the following experts:

• Ghassan Saed MD, PhD – Research Professor in the Departments of Obstetric Gynecology and Oncology at Wayne State University and the Karmanos Cancer Center in Detroit. Dr. Saed will testify about his clinical research demonstrating that talcum powder can cause inflammation and oxidative stress in cells.

• William Longo, PhD – Material scientist/electron microscopist and founder of Georgia’s Micro Analytical Laboratories, specializing in the analysis of asbestos and mineral fiber-containing materials. Dr. Longo will testify that J&J talcum powder products contain asbestos and fibrous talc, based on his analysis using transmission electron microscopy.

The case is In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation (MDL No. 2738)

Bram Wispelwey and Amaya Al-Orzza | Underlying Conditions · LRB 18 April 2020

Bram Wispelwey and Amaya Al-Orzza | Underlying Conditions · LRB 18 April 2020

At nearly 18 per cent officially, and probably higher, the prevalence of diabetes among Palestinian refugees in the West Bank is one of the highest in the world. The official rate in Gaza is 16 per cent. Among adult citizens of Israel, it’s 7.2 per cent. The disease suppresses the immune system, among other complications, and can spiral dangerously out of control when combined with an infection, such as the coronavirus that causes Covid-19. Diabetic patients with Covid-19 in China had a 1 in 14 chance of dying, more than triple that of the general population.

Decades of living in overcrowded refugee camps and a rapid transition to cheap and readily available high calorie foods, in part a result of the neoliberal economic changes that came with the Oslo Accords, have led to an explosive increase in obesity and diabetes among Palestinians. As in other parts of the world, the prevalence of the disease is linked to land dispossession, structural violence, colonial domination and oppression. In the United States, diabetes is nearly twice as common in the Indigenous and African American populations as it is among non-Hispanic whites. Other examples from around the world confirm the connection between historical oppression and chronic diseases.

Israel’s military occupation, and a neocolonial aid regime with ever tightening donor restrictions, have contributed to a fragmented and underfunded health system that makes Palestinians more susceptible to a pandemic. With some of the highest population densities in the world, social distancing in refugee camps is nearly impossible. There are fewer than 120 ventilators in public hospitals for the 3.2 million people in the West Bank, and only 65 ICU beds for the two million in Gaza, of which 26 are available for Covid-19 patients. The toll of an outbreak would be catastrophic if it reached the scale currently seen in Europe and the US.

Despite the urgency of the situation, the response from accountable bodies has been anaemic at best and at worst openly hostile. 

Weijia Jiang - CBS News Challenges Donald Trump

I think this is a really impressive effort by CBS News White House reporter Weijia Jiang.  The transcript follows the clip.  I don't recall a President being challenged in this way..perhaps no one else who held the office deserved it. - GWC

Q   Mr. President, 22—more than 22 million Americans are currently unemployed—

THE PRESIDENT: Yeah.

Q   —as a result of this. Today we hit the grim milestone of more than 40,000 Americans now having died from the coronavirus. Can you explain then why you come out here and you are reading clips and showing clips of praise for you and for your administration? Is this really the time for self-congratulation?

THE PRESIDENT: Well, I will tell you this: what I’m doing is I’m standing up for the men and women that have done such an incredible job—not for me; for the men and women—admirals, vice president, if I might. But all of the men and women, thousands—tens of thousands of them that built hospitals in New York and New Jersey and all over this country in record time. They’d throw up 1,000 beds in four days. I’m sticking up for those people. Those people have been incredible. I’m also sticking up for doctors and nurses and military doctors and nurses.

Q   But the clips that you played and what you read earlier was praising you and your administration specifically—

THE PRESIDENT: All I played today was Governor Cuomo—

Q   Why is now the moment to do that, sir?

THE PRESIDENT: —saying very positive things about the job the federal government has done. And those people—

Q   On the day where more than 40,000 Americans have now died.

THE PRESIDENT: And those—those people have been just absolutely excoriated by some of the fake news, like you. You’re CNN; you’re fake news.

And let me just tell you, they were excoriated by people like you that don’t know any better, because you don’t have the brains you were born with. You should be praising the people that have done a good job, not doing what you do. Even that question. So just so you understand, if we didn’t—

Q   The question is: “Why now, sir?”

THE PRESIDENT:  —do a job—

Q  The question is “why now,” not “why are you doing it,” but why now?

THE PRESIDENT: I’ll tell you why now.  Are you ready?

Q   Yeah.

THE PRESIDENT: Because these people are, right now, in hospitals. It’s dangerous.  It’s going to a battlefield. And I want these people—I want you—

Q   This wasn’t about hospital workers, sir.

THE PRESIDENT: I want you and—

Q   This wasn’t about the doctors.

THE PRESIDENT: It’s all about that.

Q   This was about you and your administration.

THE PRESIDENT: It’s not about me. No, nothing is about me.

Q   That was what you read.

THE PRESIDENT: Look—look, you’re never going to treat me fairly—many of you. And I understand that. I don’t even know—I got here with the worst, most unfair press treatment, they say, in the history of the United States for a president. They did say Abraham Lincoln had very bad treatment too.

Q   Sir, the Wall Street journal headline you just read has your name in it. It talks about “Trump remaking the playbook.”

THE PRESIDENT: Well, that’s a positive thing, because that’s an exercise in how to do it and what to do. And that’s good for the future. People can learn from that. But I want the men and women of this country that are in danger—the admirals and the generals that have done a job like they’ve never done before. They’re in war. We’re in war. You know, I call it the “invisible enemy.” That’s the war, and it’s a dangerous war.

We’re also at a level when you said “40,000 people”—and you’re right: almost 40,000 people. And—

Q   More than.

THE PRESIDENT: Oh, “more than.” Okay, good. Correct me.

Q   We’re at 41,000.

THE PRESIDENT: Good. Well, I’m really glad you corrected me, CNN.

But here’s the story. Let me just tell you something: if we didn’t do what we did, the 40,000 right now could be a million people. It could be a million people, not 40,000. It could be a million.

We’re tracking at much less than the lowest possible estimate. And that’s a great tribute to a number of people and a number of things. One of the things that it’s a tribute to is what’s taken place in this country with the American people, because they’ve gone inside. They’ve done it. They’ve done a job that nobody thought was possible.

And, in fact, when they did the models, as they call them, nobody thought it was possible. They did models not based on this kind of success.

I’ve seen New York streets, and I see it in the morning—I’ve watched, all my life, New York streets—and you can’t even see the pavement, there’s so many people. And you take a look this morning; you take a look—even on Friday morning, I looked at it, I saw it through a camera—there wasn’t a person on Fifth Avenue; there wasn’t a person on Madison Avenue. I’ve never seen anything like it. Because people have really listened to instructions, and they’ve listened to what we’ve had to say—and the professionals. They’ve listened.

And those people—people should really give them a lot of credit, including people like you, because you just don’t have the sense to understand what’s going on.
April 19, 2020

Will America Remain a Democracy in 2020? - The American Interest

Here's the money shot:

Perhaps unexpectedly, it is the democratic component of liberal democracy that is now most seriously at risk, raising the prospect, as the perspicacious commentator Hussein Ibish has recently warned, that the United States could become the first liberal non-democracy in modern times.
The core issue before us is whether, in the face of a deadly pandemic that is likely to persist for some time and resurge in the fall, America can preserve a core element of democracy—universal suffrage.

Will America Remain a Democracy in 2020? - The American Interest
LARRY DIAMOND

In the wake of the coronavirus, it’s an open question.

At the start of each academic year, I ask my freshman class, “When did the U.S. become a democracy?” The question exposes important ambiguities in the meaning of democracy. Is the answer 1776, when the American states declared their independence from King George III; or 1781, when our first constitution for self-government was ratified; or 1788, when the current U.S. Constitution was ratified; or 1789, when that constitution (and later that year a Bill of Rights) came into effect; or 1865, when slavery was abolished by the 13th Amendment; or 1868, when African Americans were able finally to vote nationwide; or 1920, when the 19th Amendment to the Constitution finally gave women the right to vote?

As a scholar of democracy, I believe the only correct answer is 1965, when the U.S. enacted the Voting Rights Act, which prohibited racial barriers to voting and thus ended the sordid “Jim Crow” practices that prevented southern blacks from exercising their democratic rights. The fact that most Americans—that is, white Americans—could vote and run for office before then was not enough to call the U.S. a democracy. Strong protections for freedom of the press and basic civil liberties—again for most, but not all, Americans—were not enough. A democracy requires that the people—all the people, through universal suffrage—be able to choose their leaders and replace their leaders in free and fair elections. And a liberal democracy requires more: strong protections for basic liberties; fair treatment of all citizens, regardless of race, religion, or gender; a robust rule of law, in which all citizens are equal under the law and no one is above it; an independent judiciary to uphold that principle; independent oversight institutions to control corruption and prevent abuse of power; a vigorous civil society to defend citizen interests; and a political culture of mutual tolerance, respect, and restraint.

As I have argued in my recent book, Ill Winds, the liberal elements of democracy in America have been fraying and eroding for some time as political polarization has relentlessly intensified, tolerance has diminished, facts have been distorted or invented, and politics have taken on the desperate coloration of a zero-sum game. This decay was well under way when Donald Trump announced his presidential candidacy in 2015, but it is misleading to claim that Trump is more symptom than cause of our current democratic travails. Leaders (especially elected leaders) have an outsized impact on the fate of democracy, and in the long checkered line of American presidents, Trump has had no peer in demagoguery, deceit, and hostility to the norms and institutions of democracy.

KEEP READING

The heat and the light, the disinfectant...The PRESIDENT

He gets it.  His uncle went to MIT...It runs in the family.
Dear old Stockholm Syndrome Dr. Deborah Birx..she really gets it too.
Follow to the end for the TikTok!

After hearing presentation President Trump suggests irradiating people's bodies with UV light or injecting them with bleach or alcohol to deal with COVID19. pic.twitter.com/cohkLyyl9G

— Josh Marshall (@joshtpm) April 23, 2020

Y'all got to be kidding. https://t.co/ujKULy07sq

— Kim McLarin (@KimMcLarin) April 23, 2020

“Veep” closing credits or “Curb Your Enthusiasm” theme? https://t.co/PdlJTLin2o

— David Corn (@DavidCornDC) April 24, 2020

How to medical pic.twitter.com/0EDqJcy38p

— Sarah Cooper (@sarahcpr) April 24, 2020

A BP Oil-Spill Settlement Gone Wrong - The Atlantic

A BP Oil-Spill Settlement Gone Wrong - The Atlantic: 
A well-known attorney helped land a $2 billion settlement for Gulf Coast seafood-industry workers. But who was he really representing?

Justice Alito's Jurisprudence of white Racial Innocence - Ian Millhiser - VOX

Justice Alito's Jurisprudence of white Racial Innocence - Ian Milhiser - VOX
by Ian Millhiser

On Monday, the Supreme Court held, 6-3, in Ramos v. Louisiana that criminal defendants in state court may be convicted only by a unanimous jury.

The practical impact of Ramos is small — until recently, only two states, Louisiana and Oregon, permitted a non-unanimous jury to convict a defendant. And Louisiana recently amended its constitution to eliminate this practice. But advocates saw in the ruling a big symbolic change in favor of racial justice. As the Court’s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy.

One justice took umbrage with that invocation of racism: Justice Samuel Alito. His dissent was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color. In the most noteworthy of those opinions, 2018’s Abbott v. Perez, Alito convinced a majority of his colleagues to write such a strong presumption of white racial innocence into the law governing racial voter discrimination that it is now virtually impossible for voting rights plaintiffs to prove that state lawmakers acted with racist intent.

Alito does not appear driven by broad skepticism of racial issues. While he has repeatedly lashed out at the mere suggestion that white policymakers may have been motivated by racism, he took a drastically different tone in Ricci v. DeStefano (2009). In that case, Alito wrote a lengthy concurring opinion suggesting that a cohort of mostly white firefighters were denied promotions due to a conspiracy between New Haven Mayor John DeStefano and a local black preacher.

In other words, when black or brown people have been on the receiving end of allegedly racist treatment, Alito preaches that we shouldn’t jump to such conclusions; yet in a case where white people were allegedly harmed, he wasn’t so cautious.

With his Ramos opinion, Alito continues to build a distinctive profile as a jurist: He has emerged as the Court’s foremost defender of white racial innocence.

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Public Health in the Balance: Judicial Review of Pandemic-Related Government Restrictions - Lawfare

Public Health in the Balance: Judicial Review of Pandemic-Related Government Restrictions - Lawfare: 
by Eric Posner

The coronavirus pandemic has spawned the most massive emergency restrictions of citizens’ liberties in the history of the United States. In most places, people are effectively under house arrest—free to leave home only for exercise; essential tasks (like buying groceries); and, for some people, essential work that cannot be performed at home. Citizens cannot hold political assemblies in the public square, organize union drives in common areas at the workplace, attend religious gatherings or operate businesses without government permission.

These events have produced a remarkable scrambling of ideological preferences. The last time the government cracked down on liberties on a large scale—in the wake of 9/11—liberals cried foul and went to the courts. Today, they criticize the president for failing to act more forcefully. Meanwhile, conservatives who might have cheered the security measures put in place to combat terrorism are protesting the lockdown. And they have brought cases in droves—arguing that restrictions in the various states violate constitutional rights to religious practice, freedom of speech, gun possession and protection of property.