Friday, December 12, 2014

Colbert and Wieseltier on the Importance of Thinking and "Truth."

This month marks a remarkable passing of two institutions.  One is the collapse of the The New Republic on December 5.  Following up on my earlier post, here is Ryan Lizza in the New Yorker with the inside scoop. The other is the final show of the Colbert Report on December 18. 

Leon Wieseltier was the literary editor at The New Republic from 1983 until December 4, 2014.  Stephen Colbert hosted the Colbert Report for the past nine years.  Here they are at the very top of their game during an interview on the Colbert Report on October 7, 2014.  It epitomizes what I loved best about he Colbert Report--it's smashing the envelope of conventional conversation in order to unearth unexpected nuggets of truth. Here Colbert succeeds spectacularly.  The exchange shows off Colbert at his best, and it shows why we should continue to follow Wieseltier wherever he goes next.
Colbert: It seems like people at the New Republic are folks that believe in thinking…

Wieseltier: We do, we do.

Colbert: Sell me on thinking …. Because I don’t have to think much anymore. I can just feel. And I can also just open my eyes and take the digital fire hose from my screen, and watch videos, and watch pictures of someone’s pie…. 
Wieseltier: And mistake that for thinking. Yes. … Here’s why you have to think.

Colbert: I’m not mistaking it for thinking, I prefer it over thinking.

Wieseltier: I understand why you would, but here’s the reason: a democratic society, an open society places an extraordinairy intellectual responsibility on ordinary men and women; because we are governed by what we think; we are governed by our opinions—so the content of our opinions and the qualities of our opinions, and the quality of the formation of our opinions, basically determines the character of our society. And that means that in a democracy and in an open society, a thoughtless citizen of a democracy is a delinquent citizen of a democracy. … 
Colbert: What about feeling?

Wieseltier: Human life is never going to suffer from too little feeling. We all feel all the time. We are mortal creatures, we have hearts. And the important thing is not to mistake our hearts for our minds. They do two different things. And if we were only hearts or only minds, we would be monsters. But we’re both. And the role of the mind is to actually question the assumptions of some of the dogmas and the prejudices of the heart. …. 
Colbert: But there is your gut. There is your mind—hey don’t do what you’re doing, we should do something different. Then there is your heart—Oh, is that how I feel about the things that you are doing. And then there is my gut that tells me this is right! …. 
Wieseltier: I agree with you completely, but a gut requires education. I believe in educated guts. The important thing is that we have reasons for our beliefs, and that we can articulate those reasons, and that we can defend them.

Colbert: Here’s a reason for my beliefs. They feel good. It feels good to think that when I die I will go to heaven. That feels good. It feels good to think that I am right. That feels good.

Wieseltier: But you know that it’s preposterous to think that because one feels something is the case, it is true.

Colbert: It’s not “true.” It’s “truthy,” which is greater than truth. It’s inassailable because my truth is based upon what I want to be true, rather than anything the facts can possibly support. Your “truth” requires work, mine requires merely a decision.

Wieseltier: I congratulate you for living in a world entirely of your own.
Here they are in their glory. And I mean this literally.



A Big Deal: Israel's Basic Law Proposal defining Israel as the Nation State of the Jewish People

“What will the nature of Israel be? A religious Jewish state? A state of all its citizens? A secular, democratic and Jewish state? It is a debate that will engage us for many, many years,” notes a recent article in the New York Times. Despite what many think, this question whether Israel is the nation state of the Jews—as opposed to the nation state of its citizens—remains an open question.

The issue was recently raised for discussion by the Israeli right when, on November 19, 2014, Netanyahu’s cabinet approved 14 principles for a new nation state bill that would enshrine the Jewish character of the state in the Basic Law. The question is also being raised by the Israeli left in the form of a proposed law that seeks to cement the status of Israel as a democratic and multi-cultural state. In light of the collapse of the governing coalition in Israel and the call for elections on March 17, 2015, it seems likely that further discussions of these bills will be deferred until after the election. However, if (as expected) Netanyahu emerges with a stronger governing coalition after the election, the effort to constitutionalize the Jewish character of the state will likely be taken up in the 20th Knesset. Anyone who cares about the character of the state that wields power in the name of Judaism should be paying attention.

Israel’s Basic Law: Founding to Bank Mizrahi Ruling 

On May 14, 1948 David Ben Gurion declared Israel an independent Jewish state, although to this day Israel’s “Jewish” character has not been enshrined in a constitution or in Israel’s Basic Law.  

Ben Gurion’s declaration promised that a constitution would be enacted by October 1, 1948. But this never happened. According to a biography of David Ben Gurion written by Shimon Perez and Shlomo Aronson, Ben Gurion strongly preferred to avoid the tricky issue of defining the ethnic nature of the state in black and white. In a protracted battle with Menachem Begin, who wanted to establish the Jewish nature of the state of Israel once and for all, Ben Gurion’s view of avoiding a constitution that would have defined Israel as a “Jewish State” prevailed at the time. The nation state bills currently before the Knesset, fueled in part by a loss of faith in a two-state solution for the West Bank and Gaza, are reviving this debate.

The first Knesset convened in January 1949 and commenced to legislate without a constitution.  The basic functions of the state, such as the make-up of the Knesset, terms of office, the courts, elections, the office of the President, etc., were established through the normal legislative process.  Some of these laws were designated "Basic Laws" with the idea that once they were all in place they would be gathered into a constitution. 

In 1992 the Knesset adopted a Basic Law of human dignity and liberty.  Significantly, the 1992 laws made reference to the aspirational statements in the declaration of independence of Israel as a Jewish and democratic state, and said that the Basic Law should be interpreted in accordance with those principles.  (See Amendment 1) The Israeli Supreme Court then, in what has been termed a constitutional revolution, declared the Basic Laws to be superior to all other laws: in the event of a conflict between a regular law and a Basic Law, the Basic Law would trump. As part of this “revolution,” the court also reserved for itself the prerogative to review all laws for consistency with the Basic Law.  See the 1995 Bank Mizrahi ruling. 

Through its Bank Mizrahi ruling, the Israeli Supreme Court imbued the Basic Law with the characteristics of a constitution, even though amendment of the Basic Law remains notoriously easy. It was substantial progress towards establishing Israel as a modern democratic state subject to the rule of law. 

The Positive Influence of Aharon Barak

How should the courts reconcile the tension between “Jewish” and “democratic” in the Basic Law?  Israel’s famous Supreme Court Justice Aharon Barak, leaned firmly towards resolving any such conflict in favor of “democratic.”  Jewish means democratic in Barak's view. “The state is Jewish not in a halachic-religious sense,” he said, “but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state ([as] expressed, inter alia, in the language and the holidays).
“The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel's democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.” 
Thus, in cases where democratic and Jewish truly conflict, said Barak, the judge must choose between them and he should do so “according to the views of the enlightened community in Israel.” Barak felt that the “enlightened views of the community” would provide a suitably objective test “which refers the judge to the full set of values which shape the character of the modern Israeli.”  Barak: Basic Law, Freedom of Occupation, p. 208.  

It’s important to recognize that this position outlined by Justice Barak is indeed a strongly liberal and activist view of the law.  However, in the absence of a constitution that provides for judicial review of legislation or that guarantees the equal rights of citizens, and with only weak and vague Basic Laws, it is a type of judicial activism that is absolutely essential if Israel is to be a liberal democracy subject to the rule of law. It is essential just like Marbury v. Madison (which established judicial review in the U.S.) was essential.

Conservative forces in Israel are pushing back against this rule of law model championed by Justice Barak.  For example, Hillel Neuer of the Shalem Center (which is partially funded by Sheldon Adelson) looks at the role of the court described by Justice Barak and he sees dangerous activism limiting the rights of the majority to pass laws as it sees fit, even if such laws may be profoundly undemocratic and discriminatory.  

The stakes could not be higher.

State Preference of Jews over Non-Jews


Although the “Jewish” character of the state was not enshrined in a constitution, nor in its Basic Law, and although Israel has made progress towards a modern democratic state governed by the rule of law (but not in the occupied territories), the laws of the state have nevertheless evolved in a discriminatory manner that has privileged Jews over all other citizens. This has occurred despite reference in the Basic Law to the universal democratic values that are mentioned in the declaration of independence (Israel “will foster the development of the country for the benefit of all its inhabitants; … ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”).

In 1950, the Knesset enacted a Law of Return, granting Jews everywhere the right to immigrate to Israel.  Although not a Basic Law, the law of return, of course, privileges Jews over non-Jewish citizens of the state. In all, the  Legal Center for Arab Minority Rights in Israel has compiled a list of more than 50 laws that expressly discriminate against the Palestinian minority in Israel.  Such discrimination covers all areas of life, from rights to political participation, access to land, education, state budget resources, to criminal procedures. Systematic discrimination by the state against Palestinians received a head start under marshal law that was applied to Palestinian citizens of Israel during the first 18 years of the state’s existence. It is perpetuated by Israeli identity cards that describe “Jewish” as a nationality—leaving non-Jewish citizens out in the cold.  It is exacerbated by the fact that the state opted to outsource the determination of who counts as a Jew to the "rabbis and politicians who adhere to a conservative, orthodox interpretation of Jewish tradition," says Yacov Yadgar in his recent article in the Journal of Religion and Society.  

The Proposed Nation State Law

 Here are the 14 principles for a new nation state bill that the Israeli cabinet approved on November 19.  

1. Objective
Defining the identity of the State of Israel as the nation state of the Jewish people, and anchoring the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.

2.  Founding principles:
A. The land of Israel is the historic homeland of the Jewish people and the birthplace of the State of Israel.
B. The State of Israel is the national home of the Jewish people, in which it fulfills its right to self-determination according to its cultural and historic heritage.
C. The right to the fulfillment of national self-determination within the State of Israel is unique to the Jewish people.
D. The State of Israel is a democratic state, established on the foundations of liberty, justice and peace in light of the vision of the prophets of Israel, and realizes the individual rights of all its citizens under law.

3.  The symbols of the state:
A. The anthem of the State is “Hatikvah.”
B. The flag of the State is white, with two light-blue stripes near its edges and a light-blue Star of David in its center.
C. The symbol of the State is the seven-armed candelabra, with olive branches on both its sides and the word “Israel” beneath.

4.  Return:
Every Jew has the right to immigrate to the land [Israel] and to receive the citizenship of the State of Israel under law.

5. Ingathering of the exiles and strengthening the ties to the Jewish people in the Diaspora:
The State shall act to gather in the exiles of Israel and to strengthen the affinity between Israel and the Jewish communities of the Diaspora.

6.  Aid to the Jewish people in distress:
The State shall act to give aid to members of the Jewish people who are in distress and captivity because of their Jewishness.

7. Heritage:
A. The State shall act to preserve the cultural and historic heritage and tradition of the Jewish people, and to cultivate and foster them in Israel and the Diaspora.
B. In all educational institutions serving the Jewish public in Israel the annals of the Jewish people, its heritage and tradition, shall be studied.
C. The State shall act to enable all residents of Israel, without regard to religion, race or nationality, to act to preserve their culture, heritage, language and identity.

8.  Official calendar:
The Hebrew calendar is the official calendar of the State.

9. Independence Day and memorial days:
A. Independence Day is the national holiday of the State.
B. Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day are the official memorial days of the State.

10.  Days of rest:
The established days of rest in the State of Israel are the Sabbath and the holidays of Israel, in which no employee shall be employed except under conditions set in law. Members of recognized [religious] groups shall be allowed to rest on their rest days and holidays.

11. Hebrew law:
A. Jewish law shall serve as a source of inspiration for the Knesset.
B. If a court faces a legal question that must be decided, and cannot find an answer in legislation, precedent or clear deduction, it shall decide the matter in light of the principles of liberty, justice, integrity and peace in the heritage of Israel.

12. Protection of holy places:
The holy places shall be secure from desecration, from any other harm, and from anything that may hinder free access of the religious to the places holy to them, or offend their sentiments toward those places.

13. Denial of rights:
The rights in the Basic Law shall not be denied except in a law that accords with the values of the State of Israel, that is intended for a fitting purpose and to an extent no greater than necessary, or according to such a law under the explicit authority contained within it.

14.  Rigidity
This Basic Law shall not be changed except by a Basic Law passed by a majority of members of Knesset.

A Profound Turn Away from Liberal and Democratic Values

Eugene Kontorovich over at Volokh Conspiracy claims these principles for a proposed nation state law are no big deal. “The nation state bills mostly constitutionalize the national anthem, symbols, holidays, and so forth. There is nothing racist, or even unusual, about having national or religious character reflected in constitutional commitments,” says Kontorovich. Horsefeathers!  The 14 principles for a nation state law approved by the cabinet represent a profound turn away from liberal democratic values towards an ethnocracy based on 2,500 year old values. Abandoning Enlightenment values and a modern liberal democratic state in favor of a Talmudic ethnocracy is a big deal—especially in the Middle East, we might say, where modern liberal democratic states are hard to come by.

In the context of discrimination that occurs in Israel against Palestinian citizens, to “constitutionalize” the identity of the state as a Jewish state and the nation state of the Jewish people, where the Jewish people, and nobody else, may fulfill their right to self-determination, is a big deal. It very dramatically shifts the state away from the vision outlined by Justice Barak, it removes the ability of the Supreme Court to nudge the country towards a vision of equality for all citizens, and it lays the groundwork for fully implementing an ethnocracy that privileges Jews over all others in perpetuity.

To constitutionalize that the symbols of the state will be Jewish religious symbols may not be a big deal to Kontorovich, but it will be a big deal to non-Jewish citizens. To constitutionalize a right of return for “every Jew” while the state refuses to grant even so much as a visa to the West Bank spouses of Palestinian Israeli citizens will not be acceptable to Palestinian Israeli citizens.

A state that actively works to promote immigration of one ethnic group, while actively working to exclude immigration from minority ethnic groups will not be acceptable to the minority.

A constitutional mandate that the state “act to preserve” (read fund) Jewish cultural heritage and  “act to enable” (read not fund) the heritage of other citizens will not sit well with the other citizens.

Constitutionally directing that courts must look to Israeli/Hebrew traditions to resolve open questions is to deprive Israeli courts of a tool they have used to interpret laws consistent with liberal democratic values. In light of Israeli court precedent, which often turn to the laws of other modern states for guidance, this is a profound change. It directs the court to look to 2,500 year old legal traditions and to ignore post Enlightenment traditions.

A change in language from the declaration of independence, which prominently called for the protection of all holy places for all religions, to protecting just the holy places of the Jewish state is ominous.

Conclusion

The proposed Basic Law to define Israel as the nation state of the Jewish people is a big deal. It would mark a dramatic change in law from the status quo.  Although it might not effect a large change in terms of how many conceive of the state now, or in terms of the ethnocratic facts on the ground, it would provide legal cover for a system that privileges Jews over all others in all aspects of life. It would severely hamper the Israeli Supreme Court to reverse this trend and nudge the country back towards a post-Enlightenment democratic state. 

Failure to stop this law would have far reaching consequences. 



Thursday, December 4, 2014

The Transition from Elite Policy Magazines to Policy Web Sites

There's a shakeup going on over at the The New Republic.  The venerable liberal culture and policy magazine, which has been published continuously since 1914, was purchased by Chris Hughes (one of the founders of Facebook) in 2012.  Today, its editor Franklin Foer, and culture writer Leon Wieseltier resigned.  They may be followed by additional staff.   

If this means anything to you, or if you are interested in a very good description of the lay of the land among Washington D.C. policy magazines and web sites in 2014, I highly recommend Ezra Klein's article at VOX, Even the Liberal New Republic Needs to Change.  Klein describes the transition underway from traditional elite (and low circulation) policy magazines to a more diverse and numerous group of web-sites (with larger readerships).  

"Something is being lost in the transition from policy magazines to policy web sites," says Klein, "and it's still an open question how much of it can be regained."

Wednesday, December 3, 2014

Ten Rules For Understanding the World


Our perception of the world is colored by our experience, by what we pay attention to, and by what we accept or reject.  

For the past 27 years I have paid myopic attention to statutes, contract and tort law as it relates to the construction industry. What this meant in practice was keeping track of ever-changing statutes, new cases, writing and thinking about particular questions and problems presented by clients.  With time this resulted in a deep and comprehensive understanding of a very narrow field--how the law applies to problems and disputes in the construction industry. To a lesser extent it has also provided me with expertise about the law and its workings in general.  To a great extent it has colored my view of the world.

Butcher, baker, candlestick maker, we all have our predilections that influence our picture of the world.  And beyond our profession, trade, craft, or avocation that fills our days and weeks and years, our understanding of the world remains limited. Deep knowledge of one subject may translate far beyond the narrow subject matter, but our horizon of vision remains inevitably limited. Beyond the pale of our ken we are all left naive about most things in the world.

In college, a professor once attempted to explain to us the use of a liberal arts education: "It will train you to recognize drivel when you hear it," he said.  And 40 years down the road I can vouch that there is something to this.  Our education and work related expertise acts as a drivel-detecting divining rod.  Although we may be fooled, we do acquire some ability to recognize deep expertise in others, and to recognize when they are full of drivel.  And this sixth sense about where knowledge can be found is essential because, beyond our own narrow expertise, we rely almost exclusively on others to help us understand how the world works.  Is there global warming and what can we do about it? What government policies will be most effective for creating jobs? What is the danger of government debt in excess of 100% GDP? Is fracking bad? is GMO bad? How can peace come to the Middle East? What is the nature of the universe? Can matter be created from nothing? How did life begin? Is there a God? All we have is our wits and who we decide to listen to.

So here are my ten rules for understanding the broad and mysterious world.

1. Pay attention to your own expertise and apply your wits as clearly, honestly, and best you can.

2.  Be careful and skeptical when you step beyond the pale of your ken.

3.  Pay no attention to drivel.

4.  Be open to reconsider.

5.  Recognize that we like stories about how the world works and that all stories are folklore.

6.  Recognize that, although folklore is the best we can do, folklore may be completely false.

7.  Pay attention to more than one source; pay attention to as many sources as possible.

8.  Pay attention to competing stories (subject to the no drivel rule).

9.  Eschew hubris.

10.  Don't trade in ad hominem attacks based on folklore.

Good luck!








Monday, December 1, 2014

Fly Air Gini

The Hoypoloi at the Back of the Plane

The other day Frank Bruni filled a column complaining how boorish passengers are getting in economy class.  I think he spends too much time flying Business Class and doesn't get it.

For a column that tries to say the hoypoloi at the back of the plane should show more empathy, he starts in a funny (and I don't mean ha, ha funny) manner.
THE woman in 27E doesn’t have only one carry-on plus a small bag for a laptop or personal items. She has one carry-on plus a purse the size of a bassinet plus some canvas vessel for all of her electronics plus two different plastic totes for various pillows, blankets and possibly an ottoman and a coffee table. Shuffling down the aisle, she looks more like a Peruvian llama than anything human. She grunts and buckles.
Come on Bruni, show a little understanding for your fellow travelers. Don't make fun of them.

The hoypoli are morally weak, says Bruni:
There are few better showcases of Americans’ worst impulses, circa 2014, than a 757 bound from New York to Los Angeles or from Sacramento to St. Louis. It’s a mile-high mirror of our talent for pettiness, our tendency toward selfishness, our disconnection from one another and our increasing demarcation of castes. It’s a microcosm at 30,000 to 45,000 feet.
He goes on to note how things are better in First Class, then concludes:
Too many of us lose sight of more than the earth. We forget that simply being up in the air is an experience that others seldom if ever get. If there’s one thing in even shorter supply than legroom, it’s empathy.
Clueless! We should be grateful we have it better than Syrian refugees... and never mind those  folks in business class and first class! Really. Stuff it Bruni. 

It is well known that if chickens are cooped up too tight on poultry farms they begin to cannibalize each other.  We humans are not so different.  Coop us up too tight, make us compete for overhead space, shove a seat into our knees, take away room to fully open a laptop, or move our elbows... and we're going to get surly.  And whose fault is that? Here's a hint: it's not about the chickens! 

I rather prefer Kieran Healy's take on this.  Healy, a professor of sociology at Duke, has a piece at Crooked Timber imagining what an airline based on the actual Gini coefficient of the U.S. would look like.  It would be worse at the back of the plane, but not as much worse as you might think. 

The Gini index is the most common measure of income inequality in a given country.  

Welcome to Air Gini: "We like to fly the way you like to live!" 




The Swiss Immigration Referendum: A Sign of the Times

The world is a mobile place. According to Gallup research, 700 million adults worldwide would like to permanently move to another country if they could.  Both actual and potential migration tends to be from the developing world to the developed world.

In raw numbers, the United States is the number one desired destination for these potential migrants. However, people who study these trends express potential net migration to or from a country in terms of a given country's population.  Switzerland, with its $80,000 per capita GDP, has by far the highest net potential migration index in Europe at 136% of population.  The United States has a net potential migration index of 45%. Israel has a net migration index of just 3%. Within the Middle East folks mostly want to go to Saudi Arabia (218%) and Kuwait (198%).

Younger and more educated people are more likely to migrate. International migration, therefore, tends to be a brain and energy gain for the receiving countries.

For example, Switzerland has benefited from the rich contribution of foreigners in its midst. The Swiss association of chemical, pharma, and biotech businesses has reported that of 67,000 people employed 45% are from abroad. According to this recent article [German] 44% of the population of Basel are foreigners. Indeed, towns like Basel, Geneva and Zurich have benefitted from a cosmopolitan flavor provided by internationals for centuries.

But a net population migration index of 136% can also exert pressures on a country. Since the beginning of the 20th Century, Switzerland's population has more than doubled, from 3.3 million in 1900 to 7.8 million in 2009.  During this time period, the percentage of permanent resident foreigners has also doubled. Nearly a quarter of the population are now not Swiss citizens.  [Legal residents are eligible for Swiss citizenship after a decade in the country, recently reduced from 12 years]
Permanent Foreign Residents as % of Pop.
Switzerland is a small country, just 41,258 square kilometers--roughly three times the size of Los Angeles County (roughly twice the size of Israel):
Switzerland superimposed on Los Angeles
Sixty percent (the Southern area) is covered by the Alps; another ten percent is covered by the Jura mountain range (the Northwest region). The Swiss think of themselves as a mountain folk, but in reality most of them (~5 million) live in the central plane bounded by Geneva--Neuchatel--Olten,--Winterthur--St. Gallen--Luzern--Bern,--Lausanne.  Throw in Basel (which is slightly apart), and all the heavy machinery, all the watches, all the processed foods, all the pharmaceuticals, all the banking happen in the central plane (Mittelland).
The Swiss Mittelland
The increase in population from 3.3 million in 1900 to 8.2 million today has mostly impacted this central plane. Although Switzerland does a better job at managing growth than most, the landscape has nevertheless been changing with forward progress.  Open fields and forests have yielded to infrastructure and housing needed to accommodate the increased population and industry.  So when there are reports that Switzerland is losing farmland to development at the rate of 27 acres per day, this periodically results in push back: "Enough of this growth, enough of these foreigners! Why can't we just go back to how things were?"

And because Switzerland practices direct democracy, such impulses result in voter initiatives from time to time.  The initiative (2009) prohibiting the construction of minarets was a manifestation of this inward looking desire for the past. Switzerland's refusal to join the European Union in 1992 is a manifestation of this apprehension of what the future will bring.

After Swiss voters declined to join the EU (by a narrow margin of 50.3%) Switzerland nevertheless negotiated various free trade treaties with the EU. In 2005 Swiss voters also agreed to join the European open border "Schengen" area.  This means Switzerland permitts free travel to and from EU member states (plus Norway and Iceland). In addition, Switzerland has made several bilateral free trade agreements with the EU, which among other things, commit Switzerland to free movement of peoples to work and live anywhere in the EU and in Switzerland.

This commitment has now been questioned.

This past February, the conservative Swiss Peoples Party (SVP) sponsored an initiative to curb mass-immigration to Switzerland, including immigration from EU member states.  The mass-immigration-initiative, adopted on February 9, 2014 reestablished immigration quotas (although the quota levels were left open). Passage of this initiative has placed in jeopardy several of Switzerland's bilateral treaty commitments on free trade with the EU. Under the treaties, Switzerland has three years, until February 9, 2017 to sort this out.  The legal implications, as well as the reaction of the EU are in doubt.

Passage of the mass-immigration initiative this past February will provide lots of uncertainty for the next two years, with potentially severe consequences for Switzerland's trade position with the EU member states.  Stay tuned ....

In the meantime, conservative forces in Switzerland tried to up the pressure with a new initiative which would have established a strict ceiling on net immigration of 0.2 percent of population (about 16,000 persons).  This would have resulted in a significant reduction of immigration to Switzerland, which has been as high as 100,000/year recently.  This initiative was handily rejected by 74% of Swiss voters on November 30, 2014.

The Swiss immigration quotas that remain in place after the February initiative will also play into discussions in various EU member states, where similar forces are playing out.

As in the United States, immigration policy will be a big part of the political landscape in Europe for the next few years.







Wednesday, November 26, 2014

Ferguson: It's all about Prosecutorial Discretion

In Ferguson, Missouri, a grand jury refused to indict white police officer Darren Wilson for shooting an unarmed black youth, Michael Brown this past August 9. There has been a whiff of impropriety about the proceedings. 

Appearance of Impropriety

Lawyers are schooled to "avoid the appearance of impropriety."  The St. Louis County prosecutor, Bob McCulloch, has failed to avoid the appearance of impropriety in how he has handled the Darren Wilson inquiry.  It's a significant professional breach. 

Why does the proceeding feel improper? First, context matters.  The police and power structure in Ferguson are overwhelmingly white even though Ferguson has been a majority black area for the past fifteen years. The white police and power structure in Ferguson engages in racial profiling, police officers target blacks disproportionately, blacks are incarcerated disproportionately nationwide.

Here is a helpful article on some of the background in Ferguson. I highly recommend Jim Schutze's take on this as well. 

The prosecutor of St. Louis County who instigated this failed grand jury proceeding has dealt with 14 police shootings in the last decade--and from all these cases he never brought charges against anyone. This white prosecutor's father was a policemen killed on duty by a black man. By all appearances, McCulloch's deep police roots have interfered with his proper pursuit of justice for the black community in police shooting cases.

The Role of the Grand Jury

Eric Citron has a very helpful article at Scotus blog.

Twenty years ago in United States v. Williams the U.S. Supreme Court established the rule that prosecutors are not required to present exculpatory evidence to a grand jury, even if it is directly contrary to the prosecutor's theory of guilt. The role of the grand jury, said Justice Scalia, is not to determine guilt or innocence; it's role is simply to determine whether there is enough evidence that a conviction is possible.  The dissenting view by Justice Stevens, that one of the roles of the Grand Jury is to stand as a check on hasty, oppressive, or malicious prosecutions, was rejected by the court.  As a result, grand juries almost always indict. The rare exceptions are when a prosecutor doesn't want them to. 

In this case, McCulloch's office apparently made a decision ahead of time that they did not want an indictment. They then proceeded to cross-examine what would be prosecution witnesses, they presented the coached and one-sided testimony of Darren Wilson to the Grand Jury, and (as I understand it) they made no recommendation of what the grand jury should charge.

The result was a foregone conclusion and was a matter of prosecutorial discretion.

Here is Citron:
"When a prosecutor really wants an indictment, you would not expect the grand jury process to look anything like what happened in Darren Wilson’s case. The prosecutor would have no obligation to put forward the conflicting eyewitness testimony, or introduce pictures of Officer Wilson’s injuries – although grand jury members could ask for them if they somehow knew they existed. Instead, the prosecutor could put forward only the first few witnesses corroborating his own theory, along with the evidence that Wilson fired ten shots from a substantial distance away. Eventually, all the exculpatory evidence would have to be shared with the defense before trial, under a line of cases that started over fifty years ago with Brady v. Maryland."
How Should a Prosecutor Exercise Discretion in a Police Shooting Case

Prosecutors have tremendous power whether to charge, and what to charge.  In the 80's and 90's the country veered right and got tough on crime. In California we implemented 3-strike rules, nationwide we declared war on drugs, and we reduced the discretion of judges in sentencing.  The law imposed long jail and prison terms for drug related offenses, and legislators removed discretion from judges to mitigate harsh outcomes in particular cases. As a result our prison population has exploded.


This tough-on-crime policy has very disproportionately affected people of color.  It's a national disgrace.

In a recent article in the New York Review of Books, Jed Rakoff wrote about Why Innocent People Plead Guilty  The article points out how our tough-on-crime sentencing laws, which removed sentencing discretion from judges, has tremendously empowered prosecutors.  As Citron explains:
"Once charges are on the table, the prosecutor has enormous leverage in bargaining for the kind of plea he wants – a case like Wilson’s, for example, might even include the threat of the death penalty. And indeed there has been a lot of coverage of how prosecutors use their charging authority (which goes more or less unchecked by the grand jury) to bring hugely punitive indictments that allow them to simply bargain for the sentence they want, without ever having to prove guilt beyond a reasonable doubt. One of the critics has actually been Justice Scalia himself." 
So if the Grand Jury does not act as a check on prosecutorial discretion, how should prosecutors exercise their discretion in cases like the Michael Brown shooting?  Well, surely, we want them to exercise it wisely, and in a manner that does not persecute, or harass, as Justice Stevens suggested.  But there are competing values. There is reason to be sympathetic with cops, as McCulloch obviously is.  There is reason for prosecutors not to put people through the ringer of a trial if they don't believe in their heart of hearts that they are guilty of the offense, or that they will actually obtain a conviction.  On the other hand, society cries out for justice; in matters of societal import, society deserves a complete airing of the facts in a public trial.

When I was a deputy prosecutor in Seattle in the 1980's it struck me how the evidence in your typical lower level criminal case (burglaries, thefts, assaults, drunk driving) tended to be much stronger and clear cut than evidence in the most high profile, grizzly homicides.  In low level crimes, witnesses are upstanding civilians, there frequently are confessions, and there almost always is strong direct evidence.  Low level crimes are not charged unless the evidence is strong and the prosecutor is confident a) the defendant did it, and b) there will be conviction at trial.  By contrast, high profile cases are often charged with much flimsier evidence, when conviction is not certain, and even when the prosecutor may not be convinced of guilt.

A high profile grizzly murder will be charged despite the fact that the evidence is purely circumstantial, the witnesses sketchy (dead or from the margins of society), and the theory of the case exotic (e.g. teeth mark evidence).  Grizzly murders of a prominent family in their home on Christmas Eve cry out for prosecution.  If there is enough evidence that a conviction might be obtained--the case is charged, even if there is room to doubt guilt.  The defendant will have the opportunity to air a full defense, will have assistance of counsel, will have access to all potentially exculpatory evidence that the prosecutor might have in his or her possession (under a long line of Supreme Court cases), and he will have the advantage that the burden of proof is "beyond a reasonable doubt."

The right to confront witnesses, the right to cross-examine, the rules of evidence, the fact that the prosecutor can't hide the ball, and the burden of proof are deemed sufficient to put individuals through the ordeal of a trial when there is evidence of guilt that could result in a conviction--even if the defendant might not be guilty; even if the prosecutor may not be convinced of guilt.  The prosecutor puts on the case because public justice requires it, because the society needs it.... even if there are questions.

That, and because the prosecutor knows he or she won't be reelected if there is no trial.

In low level crimes, if the case is weak prosecutors drop it. In high profile cases, even if the case is weak, prosecutors tend to pursue it.  In other words, when there are reasons for doubt, there is no requirement to charge just because a conviction might be obtained.  The prosecutor has to exercise discretion.

In this case, McCulloch exercised his prosecutorial discretion not to indict.  The case is not clear cut. The law is in favor of self-defense, in favor of cops, so there might not be a conviction at a trial.  As such, what we have in Ferguson is not an ABUSE of prosecutorial discretion. What we have is discretion that was exercised in a manner that elevated the (legitimate) value of protecting cops and giving them the benefit of a doubt over the competing value of serving the NEED of the black community in Ferguson (and some sense the nation as a whole) to air all the facts in a full trial.

If we grant that the facts are close enough, that it is not an ABUSE of prosecutorial discretion not to indict, then it boils down to a political decision. The white voters in St. Louis County who have elected and kept McCulloch in power over all these years of not indicting cops who shoot unarmed civilians undoubtedly support his exercise of discretion in this case. The black community in Ferguson strongly disagrees with McCulloch's exercise of discretion in this case. So do many of us  around the country who are concerned about police misconduct, about our disproportionate jailing of blacks and people of color, and our lack of government support to communities of color.

What we have in Ferguson is not a failure of the legal system. What we have is a failure to communicate. The remedy is political.  It's up to the citizens of St. Louis county to organize and vote McCulloch out of office.  I hope they so in the next election.