An essential difference between civilization and barbarism is that civilized people conduct politics with words, a precondition of which is that words have objective meanings—they indicate this and not that—and that we are willing to articulate them.
Most people reading this will probably not have heard of Carl Auerbach, who died this week at the age of 100, but he was a great and beloved man.
Carl had a long and important life, including being the Dean of the University of Minnesota Law Schools. He was a close adviser to Hubert Humphrey and probably would have been Attorney General had Humphrey not lost to Nixon in 1968. Carl accomplished many things in his career, including publishing the first textbook on the legal process and participating in the classic Skidmore case. He was also a kind of Forrest Gump of the 20th century, knowing many of the famous people. For example, Richard Nixon worked for Carl at the end of World War II.
But for me, Carl was a special colleague, someone who was very much a father figure to me in academia. Carl was the consummate academic, one who insisted on rigor from other academics (as well as from himself).
Carl had very different political views than me, which made our relationship all the more special. Carl was both a socialist (his term) and an anti-communist. Carl used to regale us with stories about this, even though many of us had a hard time accepting his position. After all, we had seen so many socialists who were fellow travelers with communists or at least anti-anti-communists. But Carl was the real deal. Carl had grown up in an anti-communist family and he watched in post World War II Germany as the Russians took advantage of the West. His views were not welcome to the powers that be and eventually he left for academia. But not before this Forrest Gump met General Patton.
Almost seventy years ago, C.P. Snow famously warned of a split between two cultures in our universities and society. The first was the scientific culture marked by rigorous modeling and empirical methods. That culture itself divided into defined specialties. The second was humanistic culture marked by a focus on rhetoric and the evaluation of ways of life. That culture was less specialized because it wanted to try to answer some of the great human questions that knew no boundaries.
Snow oddly enough left out the social sciences in general from his schema and law in particular, although the protagonist of his most famous novel, The Masters, was an academic lawyer. But that same cultural divide replicates itself in many of the social sciences and especially on top law schools faculties today. One kind of legal academic is scientific, concerned with models and empiricism. Those working on this side have defined methods—well cultivated gardens of the intellect. And this scholarship tends to be positive, looking at how the world is rather how it should be. The humanistic kind of scholarship is more discursive, sometimes of a bit of jumble. It is less specialized and tends to the normative.
Snow worried that the loss of a common culture would create cliques within universities and make it harder to solve social problems. Neither technocracy nor the refinement of moral ideals suffices to improve the world.
Last week, the attorneys general of 20 states met at a conference “dedicated to coming up with creative ways to enforce laws being flouted by the fossil fuel industry,” in the words of the conference’s host, New York Attorney General Eric Schneiderman. The environmental website Ecowatch called it “an unprecedented, multi-state effort to investigate and prosecute” oil companies that the AGs say “stymied attempts to combat global warming.”
John Stuart Mill is a pretty complicated figure in the history of liberty. The phenomenon of Donald Trump is a pretty complicated development in American politics currently. Both had demanding fathers, successful professional careers, and an impact on the world around them, in ways intended and unintended. It’s doubtful Mr. Trump seriously thought he’d get this far as a candidate, and I wonder if Mill could have envisioned how much his contributions to the history of ideas would have promoted the growing rift between utilitarianism and liberalism.
The American Left generally welcomes immigration, but opposes foreign trade. There are exceptions of course, but generally the further left one moves this combination of policy preferences is even starker. Bernie Sanders seems wholly opposed to free trade and yet favors immigration. Indeed, he wants to make citizens of immigrants, even if they have come here illegally.
What explains this divergence? It cannot plausibly be concern for low-wage workers in the United States. It is true that trade, while being generally beneficial, can depress the income of low-wage workers (at least in the short term), because they must compete more with low-skilled workers elsewhere. But the effect of low-skilled immigrants is the same. It puts pressure on the wages of low-skilled Americans.
It can’t be concern for the poor abroad.
Among the intriguing AdLaw cases on the Supreme Court’s docket is U.S. Army Corps of Engineers v. Hawkes. The Hawkes own some land 120 miles from the nearest navigable river, where they want to dig up peat moss. The feds think that this land is their land, or water. In any event, no. To figure out whether this or that parcel is actually water and thus subject to the feds’ jurisdiction under the Clean Water Act the Corps has created a process called a “Jurisdictional Determination” (“JD”), which involves expensive (for the enforcement target) fact-finding and then adjudication before an administrative body.
In modern democracies, public discussion of the most momentous matters is bound to be reduced to what the political and media elites believe is the lowest common denominator.
Writing in the Journal of American Greatness, Plautus, who is more intent on making Trump to be the candidate he wants, as opposed to the vulgar brute that he is, calls for a conservative nationalism with tremendous purpose whose chief goal will be the elimination of the “managerial class.”
In my last post, I discussed some of the reasons why one might question how well the schools are able to implement anti-bullying programs.
I genuinely don’t know how well government schools are doing in addressing bullying, but this story from New Jersey does not inspire confidence. As discussed by Eugene Volokh, a sixth grader was found to have committed prohibited “harassment, intimidation or bullying” when he told a classmate that “it’s not good to not eat meat” and that “he should eat meat because he’d be smarter and have bigger brains,” and that “vegetarians are idiots.”
The decision, which was upheld on appeal to an ALJ, appears to have accurately applied the New Jersey statute, which defined “Harassment, intimidation or bullying” as “any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic . . . . “
Notice that while the statute is said to be about bullying, that is only partly true. Like many regulations against harassment, it is focused on the ordinary discriminatory criteria, such as race and gender. Much bullying is not about that. It is about harsh treatment for people based on their being a nerd or their interests or their awkward mannerism. Perhaps that is covered by the “any other distinguishing characteristic” language, but perhaps not.