That time I Almost Got My Black Friend Fired (Or I Can Be Racist Too)

I had a black lunch buddy when I was working at a law firm in DC. I was a law clerk; He worked in IT. He was a Jamaican immigrant. First college grad in his family. He was tall with long thick dreadlocks gathered in the back. We liked to talk politics sitting at a shady park bench next to the Whitehouse facing the famous equestrian statue of Andrew Jackson. 

*

One day, my boss wanted a progress report on a project. I had some IT problems so I sort of unthinkingly, offhandedly blamed IT problems for my slow progress. My friend was the entire IT Department. Without even consciously thinking about it, I had thrown my friend under the bus! (I didn't mention my friend by name, I just blamed IT problems.)

My friend got in trouble, someone yelled at him, and then he came and told me how upset he was. I understood why he was upset and I immediately apologized--it was really lame of me to deflect blame to him. I should take responsibility for my own work problems and when necessary find IT work-arounds. I emailed my boss and told him that my friend did nothing wrong and I apologized for throwing him under the bus.

The incident sticks in my memory, largely because of how well my buddy handled it. I appreciate my friends professionalism (coming to me directly to address it rather than retaliate to my boss). After I apologized, he forgave me. He never bad-mouthed me or pursued any sort of vendetta. We went back to eating lunch together. The incident was never mentioned again. 

At the time, I didn't realize how white privilege and unconscious black bias infected this workplace incident. Only today, when ruminating about the 'black lives matter' movement did it occur to me how upsetting it must have been for my friend. As a white man I was blaming a black man for a work failure. He of course was scared because black men aren't always treated with leniency in the workplace. (There are studies.) For my part, I just take for granted the way I'm generally given the benefit of the doubt. Black people can't always count on that--as this situation proved.

I had only been at this job a few months.  My friend had been working there for about a decade. Yet my little off-handed comment almost got him fired. (And, by the way, he did fix my IT problem in a timely manner. He was a good employee.)

It's scary the way unconscious bias works in the workforce, on the street, everywhere. I know that I've unthinkingly participated in it. 

We all can do better. It's not enough to avoid overt hateful acts. We need to consciously counteract unconscious biases that infect our interactions with black people and other people of color.

*Lafayette Square is where Trump recently cleared protesters in order to take a photo in front of a Church. 

Children in Detention

I am a former Submissions Editor of the Georgetown Immigration Law Journal.

I've heard it said that parents who cross the border illegally deserve to be separated from their children, because they committed a crime. The logic is, if a U.S. Citizen commits a crime and is sent to prison she is separated from her children. Why should these "illegal" immigrants be treated any differently? Commit the crime, do the time. Right?

Wrong.

First, this is analogy is stupid because, if a U.S. citizen commits a crime, her children are not put in a detention center. They stay at home with other family or, worst case scenario, get put in a foster home. They have caring guardians, continue to go to school, and sleep in beds rather than on concrete floors.

Second, unauthorized entry (border crossing) is a misdemeanor crime. It's like a traffic violation. The penalty is generally a fine. I've never heard of anyone being separated from their children for speeding. And if they were, that would be very wrong. So the analogy makes no sense. The "punishment" of putting children in traumatizing conditions without their parents is not proportionate to the so-called "crime."

Third, this analogy makes no sense because, in the vast majority of immigration detention cases there is NO CRIME.

Subpart a: If you show up at the border seeking asylum, you are entitled to a hearing. You will be "paroled" into the country pending your hearing and may be held in detention. If this is your situation--and it is for a large number of the immigrants who were separated from their parents--then there has been no unauthorized entry and there is NO CRIME. To separate these law-abiding asylum seekers from their children is irredeemably cruel and abhorrent.

Subpart b: Immigrant detention is NOT a CRIMINAL punishment. It is temporary holding pending a CIVIL hearing. Removal proceedings are civil, not criminal hearings. In the vast majority of deportations, there are no criminal charges. So, even if it were a fitting punishment to separate children from parents, it would violate due process, because there is no criminal trial (with all of the attendant procedural rights, including right to a paid attorney and right to a jury). Under the U.S. Constitution, you cannot punish someone without giving them a full and fair trial. Punishing people without charging them with a crime or giving them a trial is what tyrants and dictators do. Here, in 99% of the cases, there is no criminal trial. There is only a civil hearing before an immigration judge. Most people do not understand this distinction, which seems to be intentional on the part of Trump and his allies who conflate removal proceedings with criminal proceedings and try to paint all immigrants as criminals.

Under Obama, children were only separated from parents pending a hearing if the parent was deemed to be a danger to the child (basically only if there was an abusive parent or the parent had a dangerous communicable disease). The child's welfare was always the priority. Even when children were separated from parents, they weren't held indefinitely in squalid, traumatizing detention centers. They were placed in a home--either with family members in the U.S. or a foster home.

Trump's policy was to separate all children from all parents. Then, rather than put them in homes, they were put into detention centers. The stated objective was "deterrence," i.e. cruelty to families was the whole point. The objective was to make it so painful that asylum seekers and other would-be migrants would not even attempt to go through the system. This is barbaric and wrong. I honestly believe Trump and his allies (Sessions) are going to Hell for their treatment of these little ones.

I'm disgusted with this administration and those who support unnecessary cruelty as a so-called "deterrent." (BTW, there is basically zero evidence that these policies produce any deterrent effect, so there is a good chance that the U.S. is straight-up torturing children for absolutely no reason.)

Landlord Tenant Bill HB 0376

I just wanted to weigh in on HB 0376.

I think this bill is bad for Utah.

The bill would make it difficult for tenants to defend themselves in complex eviction cases involving allegations of "nuisance" or "breach of contract." These are not straight-forward non-payment of rent cases. The bills changes the law so that tenants will only have ten days to prepare for an eviction hearing. Ten days might be enough time in a more straight-forward non-payment of rent case (which generally is just a question of accounting), but cases involving allegations of "nuisance" or "breach of contract" are often factually complex and require time for investigation before a hearing is held on the merits. Ten days is not enough time to prepare a defense for these type of cases. I think the change proposed by this bill is a bad idea.

The bill would also subject commercial tenants to expedited process. This is bad for business. I have seen fledgling businesses ruined because a landlord wrongfully evicted them. Again, there should not be an eviction hearing within ten days when the case involves complex contractual relations between a landlord and a commercial tenant. Having a hearing on occupancy within ten days is a huge disruption to businesses. Because it is anti-business, I recommend rejecting the bill. Commercial tenants should have the same procedural rights as parties in other contractual disputes (21 days to respond, trial after 120 days, etc.) The business community should reject this change. It has potentially large ramifications on Utah businesses, many of which are tenants.

Finally, a seemingly minor change in the law changes the word "answer" to "answer or response." This change seems minor, but it has far-reaching implications. The change would mandate an eviction hearing after a tenant files a "response" in the form of a motion to dismiss based on lack of jurisdiction. This change in language would create a situation where the Court would be required to have an eviction hearing before the court has even determined whether it has jurisdiction over the case. This is likely unconstitutional. The Court cannot evict someone without first determining whether it has jurisdiction over the case. Therefore, this seemingly minor change has huge legal and constitutional implications and will create problems for the Court's trying to implement the change.

I think HB 0376 is an unnecessary and problematic change to a system that is already extremely expedited compared to most civil litigation.

Please call your state Senator and Representative and tell them that you oppose House Bill 0376. If you can, please pass this message along. Thank you!

Direct Democracy

I believe in direct democracy.

Currently in the United States we have a system of representative democracy. We vote for representatives who in turn make the laws. 

I believe the American people should make the laws directly, rather than relying on representatives. It is only fair that we should be able to vote directly on the policies that will effect their lives. 

Every citizen should vote on every law.

In the past this would have been impractical, because it would take massive time and resources to bring together an entire nations worth of votes on every tiny legislative question. However, now, thanks to advances in technology, it is possible for every citizen to weigh in on every policy choice.

There are still practical challenges to direct democracy. 'Information costs' are the cost of getting information necessary to making efficient decisions. Our government and economy are incredibly complex. The average voter simply does not have the time or resources necessary to learn everything she needs to know to make informed decisions about every proposed piece of legislation. 

Here is what I propose.

My system of direct democracy would deal with information costs through proxy voting. 

Proxy voting is a device currently used in corporate governance. Basically, individual stockholders can appoint a proxy to vote on their behalf. Most of these proxies are large investment advising organizations that are able to do the hard work of analyzing corporate plans and voting in the stockholders best interest. 

Under my proposed system of direct democracy proxy voting would be an option: you can vote on each issue yourself, abstain, or you can appoint a proxy to vote on your behalf. These proxies would be professional, non-profit, organizations devoted to policy analysis and policy writing. I envision that under such a system there would be a proliferation of such organizations all vying for the privilege of voting on your behalf. 

Citizens would give their vote to the proxy that best represents their policy preferences. Citizens would always have the right to pull their vote back and appoint a different proxy. Citizens would also have the option to vote directly on issues that they are particularly passionate about, while leaving most of their voting to their proxy. 

To fund the proxies I would give Citizens a tax credit each year (maybe $100) to compensate them for the cost of hiring a proxy.

Because citizens can change proxies at any time, proxies will have a strong incentive to make their clients happy by enacting policies that closely match their preferences. Proxies will be allowed to charge uniform fees, but will not be able to accept additional money from wealthy citizens or corporations. 

My system of direct democracy would replace the Congress. The executive and judicial branches would essentially remain unchanged. The bill of rights will not change--there will be limits on what the populace can do with their votes. Therefore, there will still be checks and balances against excesses of democracy.

My system would be better for the following reasons:

1. Popular sovereignty, legitimacy, and lawfulness--My system best reflects the value of popular sovereignty. The citizens will directly choose the laws that govern them. My system will enhance the legitimacy of government, because the laws will be a direct reflection of the popular will. This would likely have positive effects on law enforcement, because the laws they are enforcing will have greater legitimacy.

3. Complexity--My system would better handle complexity, because professional proxy organizations would be in charge of policy writing and analysis. (Senators and representatives are good at winning popularity contests, not necessarily good at writing policy). Proxy organizations will have a strong incentive to do a good job, because their pay will be directly related to job performance. Market forces and competition will quickly discipline poor performance. 

4. Diversity--My system will eliminate binary voting. Rather than having only two parties to choose from, voters will be able to more accurately express their policy preferences among hundreds or thousands of proxies. For example, a social conservative that is fiscally liberal will be able to appoint a socially-conservative, fiscally-liberal proxy to vote on her behalf. Under our current system, socially-conservative, fiscally-liberal citizens don't have a party that represents their policy preference. 

5. Partisanship and identity politics--My system will help unite the country by eliminating partisanship and reducing identity politics. Two parties will be replaced by a whole bunch of proxies. This will help focus the populace on policy choices rather than personalities and identity politics.

6. Reduced gridlock--My system would permit interesting coalitions to develop. Because each issue is voted for directly, social conservatives and fiscal liberals could unite to pass welfare legislation or fiscal conservatives and social libertarians could unite to pass criminal justice reform, etc. Again, the law will much better reflect the popular will free from partisan distortion.

7. Flexibility and responsiveness--My system would be more flexible and responsive. Voters can change proxies at any time. The system will be able to quickly adapt to changes in global affairs, technology, etc.

8. Elimination of money and corruption in politics--Under my system, there is no potential for bribery--you would need to bribe the entire nation (or at least a majority). Not only would this be extremely impractical, it would also be extremely obvious and easy to prosecute. There would be no large campaign donors to corrupt our politicians, because there are no campaigns and there are no politicians. There is only us, voting on the laws that we think will best serve the country. 

We should institute a system of direct democracy. Every citizen should have an equal voice on the laws that govern us. 

Persecuting Mormons Doesn't Bother Scalia

Just came across this gem and I thought I would share it. It is Justice Scalia comparing discrimination against homosexuals in our age to discrimination against polygamist Mormons in the 19th century. He concludes that there was nothing wrong (at least constitutionally) with discriminating against Mormons, and so there is nothing wrong with discriminating against gay people. This favorable endorsement of religious/sexual intolerance in American history is fairly shocking.

This is also the text where Scalia predicts that if the Courts protect the rights of homosexuals, then they will also have to protect polygamists against discrimination. (Oh No! Can't be extending Constitutional protection to the Brown family!)

We, as Mormons, should be the biggest advocates for gay rights. Mormons were the gays of the 1800s. (Of course gays were also the gays of the 1800s.)

Anyways, here it is:

"But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is ‘forever prohibited.’ …  The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local option, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals."

--Justice Antonin Scalia, dissenting opinion in Romer v. Evans.

Moles (A Poem)

Holes are for moles.
They break through the surface
of the brown Earth with
their pink snouts.
It is obscene.

Darkness Visible

“…Yet from those flames. No light, but rather, darkness visible.”

--John Milton, Paradise Lost

 A central tension in the work of Hannah Arendt’s work involves the nature of evil. Is evil radical or is it banal? In her correspondence with Scholem, Arendt says that she has changed her mind on the nature of evil and has decided that it is never radical.  She says the following:

“[Evil] spreads like a fungus on the surface. It is 'thought-defying,' as I said, because thought tries to reach some depth, to go to the roots, and the moment it concerns itself with evil, it is frustrated because there is nothing. That is its 'banality.' Only the good has depth and can be radical.”

For Arendt, evil is banal, NOT radical, because it lacks depth. According to St. Augustine evil is merely the absence of good. It does not have a positive existence, but is nothing more than lack. This corresponds well with Arendt’s description of the thinness of evil, and its lack of substance. While Arendt's evil lacks substance like in St. Augustine's philosophy, Arendt’s description of evil as the perversion of Kant's categorical imperative in Eichmann in Jerusalem also fits Emmanuel Kant’s model of “radical evil” very well. And Arendt refers to totalitarianism as radical evil in a very Kantian way in her book Origins of Totalitarianism. 

Kant created a taxonomy of evil with three categories: frailty, impurity, and perversion. Frailty and impurity are low level evils in which a person is still motivated by the categorical imperative, but either fails to live up to her duty, or else fulfills her duty because she is motivated by extraneous desires. Only in the case of radical evil, or perversion, is a person no longer motivated by a categorical imperative. Instead, radical evil/perversion involves turning morality on its head and substituting the letter of the law for the spirit of the law. In this case a person ceases to use duty as a standard to judge their weakness against, and instead use duty as a means to justify their actions. This is exactly the uncritical attitude towards one’s actions that Arendt found in Eichmann. Therefore, Arendt seems to accept Kant’s description of evil, even if she does not accept his label. It is not clear if Arendt's concept of evil is banal (Augustinian lack of goodness) or radical (Kantian perversion).

I have decided that I agree with Arendt, in her correspondence to Scholem, that evil is not radical but is banal. Saying that evil is radical suggests that it is somewhat heroic. But evil is cowardly. Evil, the perversion of the categorical imperative, comes to pass because people are not courageous. They satisfy themselves by saying that their activity is in accordance with some law or duty, rather than challenging themselves and questioning whether the way they live is according to moral maxims or just according to custom. Evil happens because people doubt their moral feelings of sympathy. We stop trying to imagine the impact of one’s actions on others, because it is too difficult, and we don't want to change to accommodate others (especially others that don't look or act like us). This relates to St. Augustine’s concept of evil as the mere absence of good. Evils is the absence of imagination and compassion. Evil is passive. Because evil is passive and cowardly, it is very banal. It is never heroic.

Saying that evil is “radical” also suggests that evil is creative or new. It is not. It lacks creativity and is merely the passive acceptance of suffering. That is why Arendt says that left alone evil will passively cover the Earth, “like a fungus,” without active effort on the part of individuals to imagine how they can improve the World.

The banality of evil fits Eichmann very well, because he was an unimaginative, pathetic bureaucrat. However, I wonder what Arendt would say about the Fuhrer himself? He may be an example of radical evil; because he was the source of everyone else’s perverted law. Was Hitler active evil? In him it seems we might have an example of sadistic courage. He even went to jail for his beliefs at one point. 

So, is Hitler an example of positive evil? I tend to think no. Hitler was probably a coward that could not face his own perverted self. He was not creative or imaginative at all.

A better model for radical evil may be Satan in Milton’s Paradise Lost. He rejects God, develops his own personal ethics, and chooses to resist God’s will despite the impossible odds. Satan is the hero in Paradise Lost (and not even really an anti-hero like in popular shows like Breaking Bad); but he is also supposed to be evil (he is Satan after all). However, Satan's behavior in Paradise Lost is likely more in tune with Kant/Arendt’s model for good, not evil. So Milton’s Satan may not be a candidate for radical evil either. Alternatively, if Milton's Satan is evil, then he is probably just a resentful reactionary, and therefore guilty of being banal for pathetically justifying his lack of creativity.

If St. Augustine is correct, then evil is like darkness: darkness is merely the absence of light, and evil is merely the absence of good. In that case, the question may be whether it is possible to have flames that emit “no light, but rather darkness visible?”