My third book, which I’m tentatively calling Public Facts (although I’ve also thought of abandoning all subtext and calling it something like Must the Discourse Be Bad?, or Why the Cultural Conversation is Lousy), is an investigation of the ways we arrive at consensus accounts of what happened so that we can democratically deliberate about it. Really “investigation” is the wrong word there. It’s more like “whistlestop tour.”
Of particular interest to me, for various reasons, are the courts, so I’ve been reading and skimming various papers on how juries make decisions, what the incentives in the system are, why they’re the wrong incentives, etc. etc. On that subject I found these two papers particularly intriguing this week — one on the difference between civil and criminal law and the gradual hypertrophy of the latter, the other on the difference between private and public prosecution and, well, the gradual hypertrophy of the latter. One detail of the picture that’s becoming clear to me is that, as bad as juries are, they’re the least bad part of the system.
The second paper, by Bennett Capers, is particularly poignant and frustrating. Before he became a law prof, he worked as a federal prosecutor for the Southern District of New York. Now if you asked me, “What’s a place where a person who prosecutors people for a living is apt to do the most good and the least harm,” I’d have looked blank for a minute and then said something like, “Well, I don’t know. Where would you most likely be able to go after like rich white collar criminals? Those guys suck.” In other words, I’d probably have come up with something like the Southern District of New York. One, it’s federal rather than state court, and I assume, perhaps stupidly, that that means you’re sending people to federal prison rather than state prison. They’re both terrible places but I’d rather go to federal than state, if I had to go. Two, more importantly, the Southern District of New York means Manhattan which means Wall Street which means, yeah, if anything these guys are not ruining enough people’s lives. That’s where Rudy Giuliani worked during the days when he was busting financial critics like Boesky and Milken, the days before Giuliani revealed his essential nature as a clown and a spectacle and a bootlicker. #Resistance celebrity Preet Bharara was a Southern District attorney. And so, again, once upon a time, was Prof. Capers.
Well, here is how Capers begins his paper:
Because I subscribe to the belief that “subject position is everything in my analysis of the law,” … it is worth disclosing that I come to this argument not just as a criminal justice scholar but also as a former federal prosecutor. That argument is this: it is time to turn away from prosecution as we know it. As a federal prosecutor I put hundreds of defendants, mostly brown and black and almost always poor, in prison as part of the War on Drugs. But if the goal was to limit the influx of drugs in this country, what I did was an abject failure. … And it is not just drug prosecutions. Even looking back on many of the other cases I prosecuted involving victimless “crimes” I certainly know I did more harm than good. I certainly contributed to mass incarceration and to the separation of families. But to what end?
“Subject position is everything” — he’s quoting Patricia J. Williams there — cuts both ways, of course. If it’s everything, one might read this paragraph and say, “Well, your subject position is that of Bad Guy.” He worked for what he agrees is a bad system doing bad things. However, I think people who’ve done harm should not therefore be prohibited from turning in a different direction and leading healthy lives — I’m unlike the criminal justice system in that way — so I think that knee-jerk instinct, if anyone has it, should be resisted. It’s a fascinating paper, and he seems like his heart’s in the right place, despite a youthful brush with antisocial activity. Any kid can fall in with a bad crowd.
On another note, as I work on this book, I feel a deepening appreciation for scholars who make their work generally available, in spite of the paywalls that academic journals put up. Since I work for the University of Michigan, I have two things available to me that almost nobody in America has: 1) decent healthcare 2) a login that gets me past most of those paywalls. If I discover a reference to a relevant paper, it’s really easy for me to find that paper again and download and read it. All I have to do is a) go the U of M library website b) search the name of the paper again c) no not that one c) no not that one either d) search it again with quotes on both sides e) yes that one f) get redirected to the website where I re-enter my login information g) try to click the “remember me” button h) oh shit, that button doesn’t work on Safari (i) wait that’s gotta be fixable, right? I mean the University literally tells us to buy Macs (j) google “Duo Safari remember me fix” (k) download the fix (l) install it (m) try again (n) seems to work (o) oh no where the fuck is my phone? I have to go to my phone and tell Duo it’s me logging in (p) I think it’s in my other pants (q) go to the other room (r)
You get the idea. Anyway, yeah, thanks to the academics who just post downloadable pdfs on their personal websites. If your publisher’s a nonprofit and you aren’t making any money off the thing (these conditions don’t obtain in my case — well, the second one theoretically doesn’t obtain in my case), why not, you know?
This was the week for everyone to have a take on Agnes Callard’s marriage. (I think the craziest take I saw was that aspiration is inherently bourgeois. Please everyone grow up.) The whole conversation crystallized for me something that should have been obvious from the beginning: Social media is a machine for turning good opinions that I agree with into bad things. On social media, you’re sort of curating an image of yourself to present to everyone else. In the earliest days of social media, like Friendster-era, back in the Permian epoch with the trilobites and stuff, you did that by listing bands you liked or TV shows you liked, and saying snarky stuff about the ones you didn’t like. Kind of an attenuated picture but whatever. I do in fact like and dislike bands.
Now you do it by taking stands on strangers. You string together a couple of facts about a person’s life — Agnes Callard left her husband for a graduate student and crossed a picket line and did both in a very Philosopher way, asking herself penetrating questions the whole time about the experience and refusing to recognize extremely common assumptions (“crossing a picket line always hurts workers”; “just falling for someone else isn’t a good reason to leave your spouse”) if these don’t make sense to her. And you tell everyone else who you are by saying you hate the person you have just constructed out of these two data points. As it happens, I agree with the people who say she should never have crossed a picket line and the people who say that falling for another person is, by itself, a bad reason to leave your spouse. The arguments are right! And the way they’re being deployed in this case is almost entirely toxic, because it’s not about the arguments, it’s about the joy of being on Twitter and asserting your identity together with other people by saying “THIS RULES” and “THIS SUCKS” with one voice. That’s so obvious, and it’s taken me eleven years to understand it.
The 2 links in the 2d para seem to go to the same article..