Stanford University Press Blog

Taxing the Artist

What implications does the new GOP tax bill have for working artists?

by ALISON GERBER 

Photo by Mark Burnett. CC BY-SA 3.0 via Wikimedia Commons. 

Today an opaque and as yet mostly unread GOP tax bill is hurtling towards the President’s desk. The media have mostly avoided a close look at the collective effects of the tax bill—the near-inevitable cuts to public services and national infrastructure that will affect all of us—and instead my feeds have been dripping for days with straightforward “ways to make the new tax bill work for you,” including a cynical guide to “hacking the tax plan” that promises to help you learn “ways to profit off the Republican tax bill.” A number of these pieces give the reader helpful hints on ways to turn themselves into business entities, as though setting up an LLC is something like getting a new set of business cards printed—do I go with a friendly diminutive like “Allie”, or the more formal “Alison”?—rather than a meaningful legal commitment with significant costs and responsibilities.

At the moment, it looks like artists’ abilities to end next year in the black will be tied up with one provision in particular: standardized deductions will double, but those who don’t file a Schedule C or set up a pass-through entity will lose the ability to deduct work-related expenses, a change that could hit performing artists especially hard. Musicians, dancers, and actors with steady gigs are often categorized as employees and receive W-2s; now it seems they’ll no longer be able to itemize and deduct expenses related to getting and doing those jobs, though most artists spend a significant proportion of their incomes on the costs of doing business (think: transportation costs; headshots; agents’ commissions; a dancer’s weekly supply of pointe shoes; that $19,000 tuba at the back of the orchestra and the extra $1,000 for the wheeled case its player needs to get it to work). Well, you might ask, why not just file a Schedule C? It’s not that easy, though.

It looks like artists’ abilities to end next year in the black will be tied up with one provision in particular: some artists may lose the ability to deduct work-related expenses.

 

Israel’s Expanding Permit Regime

How racial hierarchy and bureaucracy are reshaping Jerusalem.

by YAEL BERDA

Separation wall between Israel and Palestine, 2005. Photo by Dafna Kaplan. CC BY 2.0 via Flickr.

For Palestinians living outside Israel’s 1948 borders, life is precarious and heavily regulated by a persistent procedural violence that limits their freedom of movement and shapes daily life. In the West Bank, impediments on the freedom of movement take the form of physical checkpoints, roadblocks, and a massive network of walls and fences manned by heavily armed guards and state-of-the-art surveillance technology. For Jerusalemites who are not Israeli citizens but hold identity cards distributed to them when Israel annexed the eastern part of the city in 1967, mobility has been somewhat easier. And though maintaining life in Jerusalem presents a financial and political burden to many Palestinian families, it’s a hardship many take on, as they understand that living in Jerusalem protects them from the draconian permit regime that restricts the mobility of neighboring Palestinians in the West Bank. At least, such was the case until recently.

Today, Palestinians who are stateless, but residents of East Jerusalem face a new threat to their political rights and freedom of movement in the form of new legal and bureaucratic plans to reshape the city through the exclusion of hundreds of thousands of residents from its jurisdiction.

Palestinians who are stateless, but residents of East Jerusalem face a new threat to their political rights and freedom of movement.

The new plan is yet another instance in which the Israeli government has attempted to move Palestinians from East Jerusalem to the occupied West Bank. For decades, the policy of the Israeli Ministry of Interior was called the “silent transfer,” which consisted of ever-mounting procedural demands to prove one’s center of life was in Jerusalem, or have one's residency status revoked. The building of the separation wall in the early 2000s caused thousands of families who had lived in East Jerusalem, beyond the wall encircling the West Bank, to seek housing, work, and education within the wall. This put extreme pressure on education, sewage, and welfare infrastructure—systems that were underfunded and underdeveloped compared to their counterparts in Jewish Jerusalem.

Transparency on the Grassy Knoll

Government disclosures, like the release of the Kennedy files, do not improve public trust.

by MARK FENSTER

Public domain via Wikimedia Commons.

Surprisingly soon after the Warren Commission Report concluded that Lee Oswald acted alone in assassinating John F. Kennedy, a significant and growing segment of the American public began to speculate about alternative perpetrators whose actions the Warren Commission had covered up. In 1992, facing the persistence of that speculation, Congress enacted the statute that prompted the recent disclosures (and non-disclosures) of secret documents relating to the assassination. It hoped to assure the public that the government was not complicit in the assassination, and nor was it withholding evidence of a conspiracy, a hope that President Trump reiterated upon the documents’ release.

#JFKFiles pic.twitter.com/AnPBSJFh3J

— Donald J. Trump (@realDonaldTrump) October 28, 2017

The effort was a noble one. Congress designed a timed disclosure mandate that would allow the public to know more and theorize less. In the predominant telling of history from the 1960s on, the assassination had initiated the public’s radical doubt about the government’s actions and willingness to tell the truth. In its wake, various cottage industries have circulated theories about government conspiracies to cover up, among other things, all of the major assassinations of the 1960s (including those of Robert F. Kennedy and Martin Luther King, Jr. as well as that of President Kennedy), its relationship with alien visitors, the rise of a globalist “new world order,” the truth behind the 9/11 attacks, and the place of President Obama’s birth. Perhaps by cleaning out its archives, the federal government could reset the public’s view of government and rid us of this persistent tendency to find conspiracy everywhere.

Where Are You From?

How place determines race for racially in-between immigrants.

by NEDA MAGHBOULEH

Immigrants to the United States waiting for medical examination, circa 1912. Public domain via Wikipedia.

July 4, 2002, was a particularly humid Independence Day in Boston. It was the summer between my sophomore and junior years of college. I had stayed on campus to work, and for the first time my family had come to visit me in New England. That year, we found ourselves among the thousands of revelers who descended in undulating waves down to the banks of the Charles River to see the fireworks. My mom and little sister scrambled onto the first available patch of grass while I unrolled a blanket I had snatched off my twin-size dorm room bed hours earlier. My aunt unpacked almonds, cantaloupe, and soda from a plastic shopping bag; my dad, ambling slowly, as he does, brought up the rear.

As we fanned ourselves on the blanket, my parents discussed how twenty years earlier to the day they had boarded a Fourth of July flight to Portland, Oregon, with me, at nine months old, in tow. We were striking out on our own, away from New York City, where I was born and where, as new immigrants from Iran, my parents worked in a Persian rug store owned by my dad’s extended family.

For a long time, where an immigrant was “from” defined his or her ability to become an American.

That morning in Boston I was the last to notice the white woman on the next blanket over who was staring at us in disgust. She stared at my dad in particular, who in a bit of confusion politely smiled back at her between his bites of cantaloupe. She whispered something in her companion’s ear; they rolled up their blanket and left, flip-flop sandals smacking up and down against the ground. We didn’t see or think about the women for a few minutes until two men in sunglasses and cargo shorts began to walk in wide circles around our blanket. “Oh my God,” my mom whispered to me in Persian. “The cops are watching us.” The July humidity was already intense, but it began to feel suffocating. Within seconds, a uniformed police officer and his K-9 approached us.

Food Drive for the Aspiring Attorney

For-profit law schools are likely to remain unchallenged under Trump.

by RIAZ TEJANI

Public domain via Pixabay.

After centuries of exclusion from the legal profession and the justice system, ethnoracial and socioeconomic minorities are now welcome—at a very hefty cost. This was a key lesson I learned from years studying a US for-profit law program. Whereas school proprietors counted on a feast of unconditional federal student loan dollars, students assumed the risk of famine brought by non-dischargeable debt and limited job prospects. Students of one law school even faced literal hunger as their loan checks were temporarily suspended due to their school’s repeatedly poor performance.

For-profit law schools, once unheard of under the strict accreditation monopoly of the American Bar Association (ABA), suddenly became viable after a deregulatory policy shift in the 1990s. Following the lead of large for-profit colleges like the University of Phoenix, financiers powered by fresh interest in private equity investment created new law schools and branded them with a mission to “serve the underserved,” in other words to cater to minority and working-class communities long excluded from the legal profession and access to justice. Amid renewed, marketized interest in corporate and professional “diversity,” these schools attained ABA accreditation.

Despite accusations of predatory behavior, they could argue that no one else was so actively diversifying the legal community. When more and more students—especially minority graduates—failed to obtain Bar admission or gainful employment upon completion, school principals argued they had enabled market “access” for more minority legal professionals than anyone before.

Whereas school proprietors counted on a feast of unconditional federal student loan dollars, students assumed the risk of famine brought by non-dischargeable debt and limited job prospects.

Unacceptable Persuasion

The nonstop sell in the land of the free.

by MARK BARTHOLOMEW

Facebook reactions. CC BY-SA 4.0 via Wikimedia Commons.

This May, documents from an internal Facebook report leaked to the press. In the report, Facebook executives boasted of Facebook’s ability to monitor posts and photos in real time to determine what young users are feeling and when. The company claimed that it could identify a host of emotions in its users, including “stressed,” “defeated,” “overwhelmed,” “anxious,” “nervous,” “stupid,” “silly,” “useless,” or feeling like a “failure.” It was implied that such information could be used by eager marketers, for the right price. Facebook initially apologized, admitting that it was wrong to target the emotional susceptibilities of young people. But it quickly backtracked, contending that the report was innocently meant “to help marketers understand how people express themselves on Facebook,” and that the analysis had not been operationalized to actually match ads to teenagers exhibiting these particular frailties.

The ability to accurately target consumers based on their individualized emotional states represents a potential game changer for commercial persuasion.

The leaked report reveals a new front in the longstanding battle between advertisers and consumers. As with many other profitable entities of the new millennium, Facebook’s business model depends on convincing businesses that it offers a new, more effective and efficient means of reaching potential customers. Advertising revenue is the lifeblood that pumps through Facebook’s corporate veins. Advertisers have long tried to capitalize on audience insecurities. Mouthwash and toothpaste makers tell us that our love lives and job prospects hang in the balance if we do not confront the specter of halitosis. Super Bowl ads feature cute babies, triggering concerns about the safety of our children to the benefit of tire makers and life insurance companies. But the ability to accurately target consumers based on their individualized emotional states represents a potential game changer for commercial persuasion.

Adcreep » mounts a damning critique of the modern American legal system's failure to stem the flow of invasive advertising.

Emotional segmenting is just one new strategy employed by advertisers today. Location-tracking technologies shadow shoppers, enabling the delivery of ads at critical moments. A thriving marketplace for celebrity selling on social media leverages the sociality and seeming spontaneity of Twitter and Instagram to camouflage the mercenary motives of brand spokespersons. Meanwhile market research is increasingly turning away from the conscious dialogue of focus group interviews, instead using neuroscience to measure our unconscious, involuntary biological responses to products and advertising.

Emerging tactics of commercial persuasion, from algorithms to consumer surveillance, may yield strong returns for marketers, but they show little respect for human autonomy. This raises the question, how should the law deal with marketing innovations that threaten to upset the balance of power between advertisers and consumers? This is a difficult question, but reformers do not need to start from scratch: A sophisticated legal apparatus already exists to balance commercial freedom with consumer protection. In trying to understand the law’s response to the marketing technologies of today, I examined a century of skirmishes between advertisers, consumers, and legal actors in the United States. These battles over marketing innovation have created a sprawling ecosystem of laws and governmental and private regulators.

Evaluating Activism

Activists would do well to borrow from the tenets of advocacy and policy change evaluation to enhance their efforts.

by ANNETTE L. GARDNER and CLAIRE D. BRINDIS

Images (left to right) from the 2014 New York City Climate March (CC BY-SA 4.0), the 2017 March for Science (CC BY-SA 3.0), and the 2017 Women's March (public domain). 

The 2016 election has embroiled the United States in political upheaval, the likes of which have not been seen in recent times. The politics of inclusion are competing head-on with those of division, and political rancor runs high. Advocacy is now front and center, with much of it being creative and engaging, but not all of it. Considered a critical means for expanding democracy, this broad swath of political actors, whom we call “advocates,” are bringing to bear their influence, using traditional strategies and tactics, such as organizing protests and showing up in force at town hall meetings. However, without thoughtful reflection, advocacy strategies are unlikely to result in the policy mobilization and impact that they intend; those who seek greater social justice will be thwarted in their efforts unless they more fully understand what is effective in mobilizing communities and shaping public and political opinion.

Advocacy and Policy Change Evaluation » looks at the concepts, designs, methods, and tools needed to conduct effective advocacy and policy change evaluations.

This is where evaluation comes in. Skilled evaluators have long been at work designing appropriate evaluations to meet diverse needs: increased foundation interest in supporting advocacy and policy change initiatives to achieve systems change; evaluation of democracy-building initiatives worldwide; and diffusion of advocacy capacity beyond the traditional advocacy community. Evaluators have met many of these needs with good success, building a new field of evaluation practice, adapting and creating evaluation concepts and methods, and shaping advocate, funder, and evaluator thinking on advocacy and policy change in all its diverse manifestations. We predict the field will only continue to grow and evolve, and those aiming to effect political change, whether at the grassroots, or institutionally, would do well to borrow from the tenets of advocacy and policy change evaluation to guide and enhance their efforts.

Those seeking to bring about policy change need to be prepared to evaluate a broad range of advocacy strategies and tactics to be effective.

“Wrong Time, Wrong Place”

The clarion call of two men wrongfully detained in Guantanamo.

by DANIEL HARTNETT NORLAND

Guantanamo Camp X-Ray, January 2002. U.S. Army Military Police escort a detainee to his cell in Camp X-Ray at Naval Base Guantanamo Bay, Cuba. Photo by Photographers Mate 1st Class Shane T. McCoy. Public domain.

Attorney General Jeff Sessions recently described the military prison at Guantanamo as a “very fine place.” I’d like to introduce him to two men who know better: Lakhdar Boumediene and Mustafa Ait Idir, who spent seven years in Guantanamo before establishing their innocence.

Lakhdar and Mustafa were living quiet, peaceful lives in Sarajevo when, in October 2001, they were arrested by Bosnian police and accused of participating in a terrorist plot. After a three-month investigation uncovered no evidence, all charges were dropped. However, instead of releasing them, Bosnian officials—acting under the cover of darkness and intense U.S. pressure—handed them over to American soldiers who brought them, blindfolded and shackled, to Guantanamo.

Lakhdar and Mustafa were living quiet, peaceful lives in Sarajevo when, in October 2001, they were arrested by Bosnian police and accused of participating in a terrorist plot.

By 2002, military intelligence officers realized that the charges against Lakhdar and Mustafa were—as acknowledged in emails that surfaced years later—“bullshit.” Nevertheless, it took six-and-a-half years and a landmark Supreme Court ruling, Boumediene v. Bush, for Lakhdar and Mustafa to even have a chance to appear before a federal judge and argue their innocence. When they finally did, that judge, George W. Bush–appointee Richard Leon, was stunned by the weakness of the government’s case and ordered their release.

Great Father Rising

From Jackson to Trump, American conservatism is animated by a paternalistic logic.

by JEFFREY R. DUDAS

Donald Trump in the Oval Office, January 2017. Public domain.

From the perspective of political stagecraft, the 2016 Republican National Convention was a catastrophe. The presumptive nominee was the subject of continuing opposition from party officials and luminaries, including the sitting governor of the state in which the convention was held. In spite of the nominee’s boasts that the event would feature high-wattage star power, the best that he could offer audiences was the endorsement of an aged thespian best known for portraying a male nanny on a decades-old sitcom. Worst of all, his fiercest rival for the party’s nomination was given a prime-time speaking slot—and then not only refused to endorse the nominee but intimated that American conservatives would do well to withhold their support as well. By contrast, his opponent’s nominating convention the next week was a masterclass in political messaging.

But in hindsight it is clear that the Republican National Convention accomplished for its nominee precisely what it intended. For the point of the event was not to display Donald Trump’s devotion to conservative principle but instead to envelop the candidate in the particulars of conservative identity. The goal, after all, was to portray Donald Trump as a great biological and national father—a singular figure who would rescue the nation from what is, for a great many Americans, the nightmare of multicultural politics. And, at that, the convention was a manifest success.

Modern American conservatism is obsessed with the influence of American fathers past and present.

Indeed, modern American conservatism is obsessed with the influence of American fathers past and present, with the legacies of both the nation’s historical “founding fathers” and its actual, biological fathers. As Raised Right argues, this obsession manifests, in practice, as a paternal rights discourse that emphasizes that American democracy exists for “good” American citizens, who can be trusted to exercise their rights to self-governance and autonomy in responsible ways. Conversely, those Americans who, lacking the influence of paternal authority (whether biological or historical) never learned self-discipline and cannot be trusted to exercise their rights in mature ways. Thus does modern American conservatism employ the standard of paternal authority to cast citizens as either virtuous and worthy of governmental support or vicious and worthy of governmental discipline, of law and order. And, apropos for a multicultural nation, these categories of virtuous and vicious tend to be inflected with gender and race-based dynamics.

What’s Wrong with Paid Family Leave?

Without broader cultural changes paid family leave is only a Band-Aid—or worse yet, a stigma.

by SARAH COTE HAMPSON

Public domain via Pixabay.

The theme of this year’s International Women’s Day is “Be Bold for Change”—a premise that is as much a call to action as it is a reminder that change still needs to happen, that women’s equality is still not a reality in our world. As I write this, a bill is making its way through the legislature in my state that aims to address at least one of the challenges women face in establishing equality with their male peers: if passed, the bill would establish a public insurance scheme to fund paid family leave. Indeed, Washington State is not alone in this effort. Over 20 other states, and an even greater number of municipalities, are actively considering or have recently passed some form of paid family leave legislation. California was the first state to pass such legislation in 2002, and its insurance scheme to help fund paid family leave for both women and men has been in place since 2004.

Numerous scholars and others have pointed out just how inadequate the Family and Medical Leave Act is for meeting the needs of working parents.

State, municipal, and employer-level family leave policies have bubbled forth in the vacuum left by an absence of a robust federal family leave policy. The Family and Medical Leave Act (FMLA) is currently the only federal policy governing the rights of men and women who need to take time off work to care for new children or sick family members. Introduced in 1993, the FMLA allows workers who have been employed for more than one year to take up to 12 weeks of unpaid time off for the purposes of supplying this family care. However, numerous scholars and others have pointed out just how inadequate this policy is for meeting the needs of working parents. Because the leave is unpaid, most of the leave-eligible workers who do not take it report not being able to do so because they are unable to afford unpaid time off work. Additionally, even if they could afford to take unpaid time off, more than 40 percent of American workers are not even covered by the policy, since it only applies to employers with 50 or more workers.

The School Choice Agenda

Betsy DeVos believes charter schools and vouchers will improve education—but will they?

by STEVEN BRINT

A still capture from Betsy DeVos's Senate confirmation hearing, via C-SPAN. Public domain.

The express commitment of the incoming Secretary of Education, Betsy DeVos, to expand school choice options for American schoolchildren has thrust charter schools and voucher programs to the fore of education debates in the U.S. Over the years the DeVos family charitable foundation has donated some $10 million to organizations promoting the school choice agenda, both through the expansion of charter schools and the introduction of school vouchers to allow students to spend public funds on any school that would take them, whether public or private. While in the United States, voucher programs remain rare (the voucher campaign the DeVos family supported in Michigan lost resoundingly), charter schools have many advocates and have gained a lot of traction in recent years.

The DeVos family is only one of many wealthy families promoting charter schools (and school vouchers) as antidotes to what they perceive as a failing public system.

Publicly funded, but privately managed, charter schools are so named because they negotiate charters with local school districts that specify agreements about requirements, funding, curriculum, and oversight. Many of the original charter schools were organized by parents in school districts who were dissatisfied with the education their children were receiving. Today, school districts may sponsor an expanded role for charter schools by encouraging charter school expansion and making funds available to those who wish to run them.

The DeVos family is only one of many wealthy families promoting charter schools (and school vouchers) as antidotes to what they perceive as a failing public system. Large, politically conservative foundations, including the Walton Foundation (from the Walmart stores fortune), the Charles Koch Foundation, and the Adolph Coors Foundation, have poured millions of dollars into promoting charter schools, as have a number of billionaire hedge fund managers. All claim that they are trying to provide options for families, but many suspect that the real motive of many advocates is to shrink the public sector in every sphere, including education. Over the last three decades, many large school districts, faced with depressing student performance results, have expanded charter school options, including in cities like Cleveland, New Orleans, Philadelphia, and Washington, DC.

A Lesson in Libel Law

Why Trump’s threat to sue the New York Times for libel will not succeed.

by SAMANTHA BARBAS

The New York Times building. Photo by Jason Kuffer. CC BY-SA 2.0 via Flickr.

Last Thursday, following publication of a New York Times story describing Donald Trump’s unwanted sexual touching of two women, Trump and his lawyers threatened to sue the Times for libel. In a letter to Trump’s attorney, the Times defended the story as “newsworthy information about a subject of deep public concern” and told Trump that if he did not agree, it would be happy to meet him in court.

Legal experts agree that there is no merit to Trump’s threatened lawsuit. Trump could never win a libel suit against the Times. He would lose not only because he would have a difficult time proving that the allegations were false, but also because he has no chance of showing “actual malice”—that the Times published the statements with “reckless disregard” of the truth. To show reckless disregard, Trump would have to prove that the Times knew or had strong reason to believe the story was false and published it anyway.

 

The NYT's lawyer responded to a request from Donald Trump's lawyer to retract an article https://t.co/HJQTV3Bo4x pic.twitter.com/9KkJ6Vxauk

— The New York Times (@nytimes) October 13, 2016

 

Redefining Organic

On the animal rights revolution in organic farming.

by MICHAEL A. HAEDICKE

Organic beef and chicken comes from cattle and poultry who have not been fed antibiotics. Photo by Ryan Thompson/U.S. Department of Agriculture. CC BY 2.0 via Wikipedia.

Organic food shoppers have become accustomed to looking for green-and-white “USDA Organic” stickers on the products they buy, but they are not always familiar with the rules and standards that lie behind these labels. For example, many people believe that animals that produce organically-certified meat, eggs, and dairy products live very different lives than those on conventional farms. They would be surprised to learn that the rules dealing with animal welfare are ambiguous. This may be about to change significantly—the U.S. Department of Agriculture (USDA) is currently considering a proposal that would transform the treatment of poultry and livestock on organic farms.

Many would be surprised to learn that, when it comes to organic certification, the rules dealing with animal welfare are ambiguous.

As published in the Federal Register, the proposed rules are wide-ranging. Among other things, they would increase the minimum size of dairy cow pens, require farmers to allow chickens to roam freely on soil and grass, and prohibit certain physical alterations, such as poultry debeaking and the removal of tails from cows and pigs.

The president of the ASPCA, an animal welfare organization, has asserted that the new rules would “make ‘organic’ mean something” by forcing farmers to “deliver on its humane promises.” But not everyone is cheering the proposal. Some farmers have argued that it would drive up the cost of organic foods, increase livestock disease exposure, and add to the risk of foodborne illnesses. There are also concerns that senators from agricultural states might vote to de-fund the new rules, blocking their implementation.

Conservatism and the First Amendment

The Right’s views on free speech have evolved over the last 60 years—could Trump signal another shift?

by WAYNE BATCHIS

Podium for Donald Trump at a campaign rally, March 2016. Photo by Gage Skidmore. CC-BY-SA 2.0 via Flickr.

At risk of stating the obvious, now could not be a more pivotal time for conservatism in America. The political party that has long been synonymous with conservative values is about to nominate a presidential candidate who, to many of the most prominent, proud, and prolific adherents to the conservative brand, poses an existential threat. The great American tradition of free speech is also on bold if not squeamish display, as an unprecedented cacophony of schoolyard banter has seemed to replace dignified political discourse as the new normal in presidential contests. Ironically, the frontrunner who has brought such extraordinary color to the mainstream political lexicon and inspired his adversaries to do the same, has recently advocated “opening up” libel laws so they would be less protective of negative reporting on political candidates by major news outlets.

Now could not be a more pivotal time for conservatism in America.

In the not so distant past, conservative standard-bearers like National Review, would likely have agreed with Donald Trump. But earlier this year this fountainhead of conservatism instigated a sort of intellectual coup against the Republicans’ presumptive presidential nominee, boldly pronouncing that it is “Against Trump” on its front cover. It has clearly taken a position on what vision of conservatism it supports, and it is decidedly not the approach promoted by the Republican frontrunner.

Back in the mid-century halcyon days of National Review, its position on one issue was crystal clear: Free speech without restraint was a menace. At the time, conservatism stood for a narrow First Amendment; mainstream conservatives supported a freedom of speech that could be significantly tempered by common sense and morality. As I explore in The Right’s First Amendment, in the early decades of the magazine’s publication—beginning roughly sixty years ago—the overwhelming majority of National Review opinion pieces on the First Amendment advocated increased restrictions on free speech. In other words, if an early edition of the National Review could somehow comment on the future events of 2016, it would not merely condemn the unusually tasteless verbal sparring that has broken out in the Republican primary contest as a moral abomination and a threat to traditional values, it likely would have also questioned the very right of speakers to traffic in such vulgarity, vicious invective and fighting words.

Coding Out Race

How colorblind courthouse language reconstructs racial division.

by NICOLE GONZALEZ VAN CLEVE

A statue of blind justice in front of a federal United States Courthouse. Photo by Tim Evanson, 2012. CC-BY-SA 2.0 via Wikimedia Commons.

In the vernacular of court culture, defendants are identified by vulgarities: “scum,” “piece of shit,” “bad guys”—even “banana suits” (which refers to the jail jumper that defendants in custody must wear in court). One term predominates among these epithets. That term is “mopes,” used mostly to refer to defendants but sometimes used to describe professionals as well. The meaning inscribed in this term is central to the moral rubric applied to defendants by courtroom professionals.

The meaning inscribed in this term—"mope"—is central to the moral rubric applied to defendants.

Work ethic, competency, and motivation are central elements of court culture. Efficiency and speed of disposition provide daily evidence of the court professional’s work ethic. Not surprisingly, plea bargains rather than trials define this proverbial machine of efficient justice, and judges and prosecutors pride themselves on efficiency. Prosecutors specifically, when surveyed about the qualities and values inspiring “disrespect” in the Office of the State’s Attorney, overwhelmingly reported “laziness” in a fellow prosecutor as the worst quality—even worse than “incompetence.”

“Mope” is shorthand for a person who violates these values. Professionals find it difficult to regard a defendant as anything but a mope. By the professionals’ logic, if someone was motivated, hardworking, and competent, he or she would not be charged with a crime—especially one like dealing drugs, stealing, or other common nonviolent felony infractions that define the court docket. Thus these criminal charges signal not a type of criminal act but a type of racialized being.