Law-law-land

Shana tovah, bless those handsome Jews for granting me a day of reprieve from Contracts reading. I'm sitting at home cowering from the rain. My last pair of dry pants joined all my other pants on the drying rack today after the morning's extended play session with Boo, a muddy dog run, a deflated white basketball (Bunnicula?), and a nor'easter called "3.74 inches of rain with flooding expected late afternoon." I now find myself in the unenviable position of deciding whether to stay indoors all day or wearing tight, tapered, light-colored blue jeans and my Michael Bolton t-shirt, my only remaining dry and marginally clean shirt, and my white heel-less pumps



to go about my daily business.

Just kidding! I only hope and pray to one day own this outfit. I do not own this outfit. I'm slouching pantsless at my kitchen table, surrounded by cut up pieces of a civil procedure textbook, allowing crumbs to fall onto my stomach, trying to figure out how to make myself feel even more attractive than I feel right now.

I started off this post imaging I would write intelligent things about the way institutions institutionalize people, even supposedly liberal or left-leaning institutions, toward median values, and how my specific institution, a law school, especially values following rules, talking pretty, talking down, deferring to hierarchy, deferring to tradition, honoring honors, and looking polished. I think the secret to law school is talking forcefully and confidently about whatever you're talking about, despite or perhaps because you have no idea what you're really saying, whether that be the unconstitutionality of prejudgment seizures of property or what pie slice of the world you hope to conquer and sublimate after graduation.

A friend likes to say that after a certain point, people start winning awards for having won awards. You're selected for accolades because people see that you're previously decorated and therefore assume you are worthwhile of more accolades. This is frighteningly true, or at least in the cloistered world of prestige-hunger in which I begrudgingly but consistently live. I'm not sure it relates to anything I was talking about before, but it doesn't matter because I'm saying it forcefully and confidentally.

There's also some crap I'd like to write about the guy I heard on the radio a month ago when I was in Philly. On a show about Hurricane Katrina, a guy calling in from Georgia first sputters about how "Mayor Nagin, all those, the black people, they--from cradle to grave, all they want--public assistance" and then says, "How can you say [the unconscionably poor job the federal government did in responding to the hurricane was] racist? Did Bush say, Oh, they're black, I don't like them so I won't help. No!" and triumphantly declares the end of racism. I heard this snippet of conversation and then my cynicism overwhelmed me and I turned the radio off. Racism isn't racism unless there's a guy with a white sheet? Racism isn't racism when 99% of the faces you saw huddled in the Superdome were black, it's just coincidence?

Bob Herbert recently quoted Lee Atwater (who was the ur-Karl Rove, until an early brain tumor made first penitent, then dead) in a column on Bill Bennett this week, as saying:

You start out in 1954 by saying, 'Nigger, nigger, nigger.' By 1968 you can't say 'nigger' - that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff. You're getting so abstract now [that] you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites.

And subconsciously maybe that is part of it. I'm not saying that. But I'm saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me - because obviously sitting around saying, 'We want to cut this,' is much more abstract than even the busing thing, and a hell of a lot more abstract than 'Nigger, nigger.'

I think the common thread here is that once naked racism is abolished de jure, people congratulate themselves for abolishing racism and then return to the same de facto racism that persists in their lives. Once we have the Civil Rights Act, all other suspicious school segregations, abrogations of voting rights, disproportionate applications of capital punishment, omissions in urban planning and transportation routes--all of that is just coincidental! This attitude is reflected nowhere better than the Supreme Court's 1987 decision in McCleskey v. Kemp, where the court upholds the constitutionality of the death penalty even though it is applied way more to black people killing white people than white people killing black people:

At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman." As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.'" Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.

Well, at least the Court has not yet criminalized flag-burning.

Off to the law books now! said the law drone.