Stanford University Press Blog

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.

Abortion Policy After Scalia

The Supreme Court's decision on a recent abortion-related case could be a game-changer.

by JOSHUA C. WILSON

"The Burden is Undue." Photo by Lorie Shaull, March 1 2016. CC-BY-SA 2.0 via Flickr.

As the U.S. Supreme Court prepares to issue dozens of opinions in the homestretch of its current term, the Court’s still vacant seat and the heightened national attention around the country’s political future, spurred by the presidential race, endow the coming weeks with particular significance. The persistence of the eight-member Court created by Justice Antonin Scalia’s death three months ago and the Senate Republicans’ ongoing refusal to act on attempts to fill the seat have prompted widespread speculation as to the nature and the number of 4-4 decisions to be issued in the foreseeable future.

Whole Woman’s Health v. Hellerstedt is the most important abortion-related case to be heard by the Court since the early 1990s.

The Court’s unanimous mid-May decision to send the most recent Affordable Care Act contraception coverage case, Zubik v. Burwell, back to the lower courts without taking a substantive stance on it provides some insight into how a reduced high court functions, issuing rulings with limited immediate impact. It also presents a lens through which to predict the potential outcome of the Court’s other high-profile reproductive rights case, Whole Woman’s Health v. Hellerstedt.

The Court’s treatment thus far of Whole Woman’s Health v. Hellerstedt—a case concerning the constitutionality of Texas’s controversial 2013 abortion regulations—contests the means and ends of the incremental and indirect fight against abortion that has been waged in state legislatures and federal courts for decades. Texas’s laws targeting abortion providers are indicative of the broader trend in how battles over abortion are waged and won today. Whereas clinic-front activism and demonstrations once characterized the debate, today the most important disputes affecting present and future access to abortion are principally taking place out of public view, in state legislatures and courts.

A Man-Made Disaster

On the role of human error in the Fukushima nuclear accident.

by EDWARD D. BLANDFORD and SCOTT D. SAGAN

IAEA experts visit the Daiichi Nuclear Power Station to examine recovery work, April 2013. Photo by Greg Webb. CC BY-SA 2.0 via Flickr.

It has been five years to the day since the 2011 Tohoku earthquake shook the coastline of Japan’s Honshu island, leading to the tsunami that killed over 15,000 people. Beyond this real disaster, this tsunami also caused a major accident at the Fukushima nuclear power plant, which displaced hundreds of thousands more. The magnitude 9.0 earthquake and resultant tsunami destroyed offsite and onsite power supply to the Fukushima Daiichi nuclear power station, causing the fuel of three reactors to melt and substantial amounts of radioactive material to be released out of the plant. The environmental and economic consequences of the Fukushima accident were significant. An estimated 200,000 Japanese were forced to relocate from their homes and their return awaits a massive land remediation effort that will take decades to complete.

The environmental and economic consequences of the Fukushima accident were significant.

Not surprisingly, much of the coverage of the incident tends to emphasize the resilience of Japanese society during the emergency and the fact that no individuals were killed immediately by the nuclear accident. The over 15,000 who were killed because the Japanese tsunami protection system did not warn or protect them all too often appear to be forgotten today. But these accounts overemphasize the role of good fortune over good planning and pessimists see the fact that the Fukushima accident did not produce massive fatalities in Japan as “homage to plain dumb luck.” The appropriate perspective on Fukushima must, however, include a basic awareness that the disaster could have easily been much worse in terms of loss of life and economic damage to Japan, and even surrounding countries. Equally, with modestly better advance preparation, none of the Fukushima reactors would have suffered any fuel damage. Due to a lack of preparation, the natural disaster of the 2011 earthquake set off a major man-made accident, caused by human error and institutional shortcomings, and from which we stand to learn many lessons in order to redouble efforts to improve nuclear safety.

Texas, Abortion and the Power of the Supreme Court

What's at stake in Whole Woman's Health v. Hellerstedt.

by JOSHUA WILSON, Texas Tribune

"Keep Abortion Safe, Legal, and Accessible." Photo by Debra Sweet. CC BY 2.0 via Flickr.

Last Wednesday, the U.S. Supreme Court heard Whole Woman's Health v. Hellerstedt, a case concerning the constitutionality of Texas's controversial 2013 abortion regulations. While the case does not stand to overrule Roe v. Wade and make abortion potentially illegal, it does contest the means and ends of the incremental and indirect fight against abortion. It could make abortion functionally inaccessible in large swaths of the country, furthering the disparities in state-by-state access that have been rapidly growing in recent years and encouraging the anti-abortion movement to increase its efforts. For this, it is the most important abortion case to be heard by the Court since the early 1990s—even before Justice Antonin Scalia's recent passing.

It is the most important abortion case to be heard by the Court since the early 1990s—even before Justice Antonin Scalia's recent passing.

Much of the discussion regarding the Texas abortion laws has focused on the clinics that these regulations have, and still could, force to close and the resulting distances that women in parts of the state will have to travel in order to access abortion. These closures are the result of increasing the costs of clinic operation brought on by a class of laws often called Targeted Regulation of Abortion Providers, or TRAP laws, which create physical specifications for clinics as well as staffing and licensing requirements. The 2013 Texas state law at issue in this case mandates that abortion clinics meet surgical center standards and that doctors who perform abortions have admitting privileges at hospitals within 30 miles of the clinic. It also bans abortion at 20 weeks after fertilization.

Separate and Unequal Justice

On Laquan McDonald and the racialized culture of the criminal court system.

by NICOLE GONZALEZ VAN CLEVE

Professor Nicole Gonzalez Van Cleve, discusses Laquan McDonald's case on The Rachel Maddow Show (video below).

The Gang Crimes Unit of the State’s Attorney’s Office in Cook County, Chicago was where the most bullish state’s attorneys worked. Many were nicknamed for their ferocity, sounding like their own gang of sorts­—“Dirty Dog” Richardson, “Beast-Man” Miller, William “Billy Club” McManus, to name a few. These were the types of men who comfortably put both feet up on their desk and welcomed you to their office with the soles of their shoes.

Nameless mug shots of a stream of black and Latino defendants acted as wallpaper for their office.

Nameless mug shots of a stream of black and Latino defendants acted as wallpaper for their office—a visual souvenir of convictions and conquests. This wallpaper provided a striking, racialized backdrop to the practice of criminal law and was my first introduction to the criminal courts and criminal justice. Nearly all the prosecutors who built and exhibited this showpiece were white; in contrast, nearly every mug shot in the mural was a person of color. I moved backward several steps so that I could see the entire wall, and then I paced reverently along it, as though I were scanning a memorial of the dead.

Our Images, Our Selves

"Public image laws" in the U.S. belie an image-obsessed cultural sensibility.

by SAMANTHA BARBAS

"Land of the Tabloids." Photo by Daniel Novta. CC-BY-2.0 via Flickr.

After receiving calls from her neighbors, a woman found that her daughter’s picture had been used in an ad for a local ice cream store, without the daughter’s or the mother’s consent. Her daughter had simply “liked” the ice cream store on Facebook. The woman was outraged and embarrassed. People across the country whose photographs had been similarly exploited under Facebook’s Sponsored Stories advertising program sued Facebook.

In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C., that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article’s author on the street. The caption did not name her, and the article did not refer to her. Although the woman had consented to be photographed, she did not know that the picture would be used in an article on cheating cabbies. She was humiliated, and she sued the magazine.

In the early 1940s, Zelma Cason, who was the inspiration for a character in a book by a famous writer, sued the author. The portrayal of Cason was highly complimentary, although in one part of the book the author described her as an “ageless spinster resembling an angry and efficient canary” and noted that she used profanity. Cason was upset, and she sought damages of one hundred thousand dollars.

Angry and insulted, these people could have done any number of things. On seeing her picture in the Saturday Evening Post, Muriel Peay could have gone home and cried. Perhaps she did. The unwilling subjects of the Sponsored Stories program could have boycotted Facebook—perhaps they did, too. But these individuals also chose to sue. In the past hundred years, in increasing numbers, Americans have turned to the law to help them defend and control their public images. The twentieth century saw the creation of a law of public image, and the phenomenon of personal image litigation.

Art Law Pioneer: John Henry Merryman

Stanford University Press remembers a path-breaking legal scholar.

Professor John Henry Merryman, 1920-2015. Photo by Steve Gladfelter, via Stanford Law School's news blog.

On August 3^rd, esteemed Stanford Law Professor John Henry Merryman died at age 95. Merryman lived a long and accomplished life, celebrated by his peers and students; his contributions to comparative law, art law, and property law are internationally recognized and highly venerated.

We at Stanford Press are very proud to list John Henry Merryman among our authors. Merryman’sThe Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (now in its third edition) is recognized as a major treatise in the field. Originally published in 1970, the book is still regularly cited 45 years later. Merryman is also the author of Stanford Legal Essays (1975) and The Italian Legal System: An Introduction (with Mauro Cappelleti and Joseph M. Perillo, 1967). A second revised edition of the latter—described as a “classic and pioneering work,” by Ugo Mattei of UC Hastings—will be published this fall.

The staff of Stanford University Press extends our sincerest condolences to the family and friends of Professor Merryman. All of us at Stanford Press have long admired him for his many outstanding contributions to the academic community. He will be truly missed.  

Merryman’s excellence in scholarship will live on with his colleagues, his many students over his decades of teaching, and in the past and future readers of his prolific list of books. 

—Michelle Lipinski, Law and Anthropology editor

 

#ReadUP: The Death Penalty

An overview of Glossip v. Gross and the university press books behind the case.

Injectable midazolam—a benzodiazepine used in lethal injection. CC-BY-3.0 via Wikipedia.

All manner of execution methods have been challenged before the Supreme Court, from firing squad to the electric chair, and not once in the court’s history has it ever invalidated any state’s chosen execution procedure. This streak continued in last week's Glossip v. Gross decision in which the Supreme Court ruled (in a contentious 5-4 split) that lethal injection and the three-drug cocktail administered in recent executions meets constitutional standards.

While crafting their opinions Justices drew from sources as diverse as Enlightenment-era philosophy, to pharmacology, to Slate articles.

“Welcome to Groundhog Day,” was the colorful opening of Justice Antonin Scalia’s opinion—likely a reference to the similarities between Glossip and a 2007 déja vu-inducing case, Baze v. Rees, which similarly challenged the constitutionality of lethal injection (also to no avail). The petitioners in Baze—two death row inmates from Kentucky—lost their suit when the Supreme Court (in a less divisive 7-2 decision) sanctioned the three-drug cocktail commonly used in lethal injection: a sedative to render the condemned insensate to pain, a paralytic agent, and finally a drug that induces cardiac arrest.

Making Race Visible

What can blind people tell us about race?

by OSAGIE K. OBASOGIE

CC-BY-2.0 via Flickr.

For several years now, a quiet revolution has been underway in consumer electronics. Gadgets that are a part of our everyday lives have learned to see. Relying on optical devices and software that can detect faces and track body motions, cameras, gaming systems, phones, and other tools have gained access to the mechanisms of visions and recognition that were once considered the unique province of sentient beings.

But some of these technologies have a problem: they have a hard time seeing people of color.

Race is made visible by social practices—a claim that is confirmed, ironically, by the experiences of the blind.

In December 2009 Wanda Zamen and Desi Cryer, two employees at a camping supply store in Waller, Texas, noticed something peculiar about an HP computer at the shop. The computer featured a digital camera that detected and tracked human faces. The system had no problem identifying and following Wanda, who is white, but it could not do the same for Desi, who is black. He demonstrates the glitch in a YouTube video that has been viewed almost 3 million times. “As you can see, the camera is panning to show Wanda’s face. It’s following her around. But as soon as my blackness enters the frame, . . . [the camera] stops,” he says.