Notes on a Theory…

Thoughts on politics, law, & social science

Archive for December 2012

How Judicial Politics is Like Area Studies

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courrtPart of the critique of the standard approaches to judicial politics that I’ve been working on involves looking at the justifications offered for why the field chose decision-making as its standard concept of the thing to be explained, and why decision-making generally came to mean formal rulings on the merits by Supreme Court justices. I’ve argued elsewhere that part of this was a mistaken assumption that such decisions were action as opposed to talk and a mistaken assumption that decisions are necessarily efficacious.* (I say mistaken both because these assumptions are not true, but more importantly  because they obscure rather than illuminate). Once we jettison those assumptions, it means that other actors should be brought into better focus and whether rulings are followed is an open question. This means shifting our attention from decision-making to legitimation and authority, with the more important question being not ‘why did this actor do as they did’ but ‘how will others respond.’ Read the rest of this entry »

Written by David Kaib

December 30, 2012 at 4:28 pm

Top Five Posts That You Did Read: 2012

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Here are your top five posts from the last year, based solely on page views. The biggest thing driving traffic – one or two people who have a bigger megaphone than me passing it along.  (My thanks to those people).  Was there anything else they shared in common? Let’s take a look.

Also, don’t miss Top Five Posts that No One Read: 2012.

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Top Five Posts that No One Read: 2012

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I may post the top posts from the past year based on views, but I first thought I might do a list of posts that didn’t get much traffic that I wish had. Here they are, in no particular order. [This post edited slightly]

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Written by David Kaib

December 27, 2012 at 7:25 pm

Just Cause Laws are Civil Rights Law

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A recent case from Iowa has caused a great deal of discussion, and it illustrates an important larger point.

A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa Supreme Court ruled Friday.

The court ruled 7-0 that bosses can fire employees they see as an “irresistible attraction,” even if the employees have not engaged in flirtatious behavior or otherwise done anything wrong. Such firings may be unfair, but they are not unlawful discrimination under the Iowa Civil Rights Act because they are motivated by feelings and emotions, not gender, Justice Edward Mansfield wrote.

[snip]

Nelson, 32, worked for Knight for 10 years, and he considered her a stellar worker. But in the final months of her employment, he complained that her tight clothing was distracting, once telling her that if his pants were bulging that was a sign her clothes were too revealing, according to the opinion.

He also once allegedly remarked about her infrequent sex life by saying, “that’s like having a Lamborghini in the garage and never driving it.”

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Written by David Kaib

December 22, 2012 at 1:59 pm

How the NRA Shifted the Debate: Or One Way Conservatives are Better at Politics

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I’ve harped here on the notion, both popular and academic, that ‘talk’ doesn’t matter – that decisions are the key unit of politics, they are action, driven by some set of fundamental forces, unaffected by interactions among people. This is connected to an idea I’ve called democratic efficiency: that public opinion translates automatically into public policy, like a political market (market here being the imagined one of economic theory rather than anything that exists in the real world). This position renders the vast bulk of political activity nonsensical, but it has the handy consequence of ensuring that any outcome is explainable–some set of actors or policies won out because they were favored (probably by the voters), the proof being that said actors or policies won out. It’s circular, of course, yet somehow deeply satisfying.

I was thinking about this while observing the response to the horrific shooting in Newtown.  Many liberals took the shooting as license to demand gun control, something that has been verboten for quite some time. (There has also been a good deal of discussion of mental health, which on its own is a good thing but somewhat troubling as an anti-violence strategy, but let’s leave that aside).  At the same time, numerous conservatives announced their own support for things like arming teachers.

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Written by David Kaib

December 21, 2012 at 5:33 pm

Chalmers Johnson Skewers Rational Choice

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I’ve been thinking a bit about areas studies and it’s role in the field of political science, in part as an analogy for judicial politics (forthcoming) and it led me back to this piece by the late great anti-imperialist Chalmers Johnson, defending area studies and the verstehen on which they are built against the academic imperialism of rational choice. It’s unfortunate to me that many dissenters within the field are willing to concede the science mantle to standard approaches, and it’s always good to see someone challenge it on these terms. Even better to note the political underpinnings of these approaches whose proponents insist that they and  alone are apolitical.

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How Means Testing Exploits Well Intentioned Liberals

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Means testing of Social Security or Medicare is a bad idea.  It doesn’t generally save that much money and it undermines the very logic of social insurance–universal coverage paid for by dedicated taxation, thereby spreading risk over the whole population, protecting everyone.  Means testing is a way of welfarizing social insurance, that is, associating it with the poor (read : undeserving)  Most people, even politically active people, don’t understand the idea of social insurance, either its policy or political logic.

That said, I’ve found the idea is one that many liberals seem drawn to.  I’m not talking about neoliberals who are really skeptical of social insurance. I mean people who are primarily concerned with inequality, who have no ideological skepticism toward government. And I don’t mean the politicians and think tanks that are pushing it.  I mean why people think it sounds like a good idea.

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Written by David Kaib

December 17, 2012 at 11:16 pm

No More Lame Ducks

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yellow-duck-mdLegislators at the state and federal levels are working hard at acting without democratic constraints at the moment.

The Michigan legislature, still held by Republicans, although their House majority was reduced in the recent election, has been rushing through all manner of ALEC-sponsored legislation, including the No Rights At Work law, harsh abortion restrictions, and an emergency manager law that had just been overturned by initiative.  (They are being encouraged by billionaires who know their power is at a high point and voters’ at a low one).

In the meantime, at the federal level, after a campaign where both sides accused the other of wanting to cut Medicare, both sides are scheming to cut Medicare–hopefully in a way that ensures that no one takes the blame (i.e. bipartisanship).  This is important because such cuts are deeply unpopular among practically all voters, regardless of party or age.  Whipping votes is easier among those members of Congress who were defeated or retiring, many of whom have already lined up lucrative post-Congress employment and may just have some interest in mind other than the public’s.

The time between an election and when the next legislature is seated is perhaps the moment of the lowest ebb of democratic accountability, because of the presence of lame duck members, because the public is exhausted from the non-stop, soul-crushing, circus that is the modern election season, and because it is the time when the possibility of citizens angrily voting against them is furthest off.  And many politicians seem hell-bent on making the worst of it.

Obviously, the lame duck sessions aren’t the only culprit here.  The Republican Party’s lurch to the right has been a product of organizational politics that serve to insulate it from electoral control, and the vast role of money in politics serves to make legislators in both parties dependent on the funders rather than the people (a problem that has gotten worse in recent decades but is not exactly new either–funders have usually set the bounds within which popular politics can operate, as Thomas Ferguson has argued).  There are also almost no independent organizational structures that allow regular people to effectively pressure their representatives.  There are plenty of other undemocratic practices and rules we need to target together, as part of a larger democracy agenda.

Sill, what possible purpose does the lame duck session serve? Elite Washington loves the lame duck session, because what ever little impact the public has on policy in normal circumstances, they would prefer to operate with even less popular interference.

But if you actually care about democracy, how to you justify it? The answer is clear. You can’t.

No more lame ducks.

Written by David Kaib

December 13, 2012 at 10:48 pm

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