Long Live Mister Roger's Quiet Revolution

In 1969, when a second season of the popular year-old children’s TV show Mister Rogers’ Neighborhood was threatened by a funding pinch, children nationwide sent in rolls of pennies and single dollar bills totaling almost $4,000 to save the show. Among Fred Rogers’ tiny supporters was a 5-year-old Miami girl who told a Herald reporter that the humble, singing host in his trademark cardigan “teaches us things!” When asked what Rogers taught her specifically, she replied with characteristic preschooler candor, “I don’t know. But I love him!”

This tot’s bewildered devotion captures the long-running affection for Rogers and the show, which debuted to a national U.S. audience 50 years ago. But it also captures some of the contributions of—and controversies about—the show. Rogers, the former Presbyterian minister turned one-time NBC news assistant, was on the vanguard in promoting public television. He brought attention to the emotional lives of children and an imaginative vision of a country that looked more like his friendly neighborhood than the United States in 1968, a time marked by civil unrest and questions about what racial equality and civic responsibility looked like.

While Rogers became a fixture for generations of children and families, public television—and children’s programming on public television—were largely unknown quantities at the outset. Americans were buying more and more televisions, but public television was a new idea, with the Corporation for Public Broadcasting having just been created months before Mister Rogers’ Neighborhood premiered. Its flagship show, Sesame Street, would follow in 1969. (...)

In public television’s infancy, the medium found itself challenged by naysayers who questioned its value and, importantly, its funding. Rogers, whose carefully cultivated milquetoast TV persona belied a steady eye on politics, went on the defensive. Just a year after his show hit national airwaves, Rogers testified before Congress about the social necessity of public television.

[ed. See 2:25 - 3:15]

Key to Rogers’ approach was the idea that a healthy child should play, feel, and be able to inhabit a Land of Make-Believe where creativity reigned, emotions could be discussed, and supportive adults listened. It was the quintessential modern interpretation of Progressive-era ideas that children were, in fact, different from grown-ups, and need a gentle-but-firm hand for guidance. Rogers also subscribed to a school of thought that proper behavior—marked by being in touch with one’s feelings and thinking about others’—could be taught. For every emotion, there was a strategy to deal with it. When you are angry, Rogers told his young charges, you don’t have to knock somebody down.

“There is an almost total disregard for the inner needs of children,” Rogers said during his 1969 acceptance of a Peabody Award for outstanding children’s programming. “For instance, when a 3-year-old sees a cartoon animal with big teeth, he focuses on the teeth because he happens to be in a stage where he thinks a lot about biting. Our program is based on development tasks children need to focus on.” And for those who complained of his show’s slow pace and storylines, he added, “I feel that drama comes from within.” Even performing the simplest task such as taking a bath, a child might fear that she would get sucked down the drain along with the water.

His philosophy was one of acceptance without conditions, as expressed by the lyrics of one of his many songs: “I like you as you are, exactly and precisely. I think you’ve turned out nicely. I like you as you are.”

But not everyone agreed that television could be a teaching tool. From the moment of its inception, television had champions who touted its potential and detractors who worried that the technology could influence public opinion and the minds of American youngsters. The American Federation of Teachers shared its skepticism in a unanimous resolution that “we are unalterably opposed to mass education by television as a substitute for professional classroom techniques.” As late as 1976, when Mister Rogers’ Neighborhood had been on air for almost a decade, education professor Rose Mukerji described the help-or-harm debate about youth and television as a “checkerboard scene” of cases for and against. Anti-TVers cited concerns about on-screen violence and questioned the assumption that television programming could make children “pro-social” and better acclimated to the world around them.

More than any other television booster, Rogers argued by example and in his quiet, firm way that television’s power could be harnessed to shape future generations for good. (...)

In the fourth episode of the first season, Rogers introduced Mrs. Carol Saunders, a black teacher. Though the character was introduced without ceremony or fanfare, it was notable that she was referred to with the “Mrs.” courtesy title that many whites denied to African-American women. She was a feature of the first two seasons, sometimes towing a racially diverse group of students—at a time when U.S. schools were struggling to desegregate, resisting the process, and also trying to diversify their teaching staff. Her appearances were included as a matter of course, with no reference to residential or school desegregation.

Later in the show, Rogers also introduced another regular black character, real-life cop Officer Clemmons, with whom Rogers shared a plastic wading pool on-screen. Again no mention of conflict over making public facilities—including previously white-only swimming pools—available to people of all races. But Rogers could not have been oblivious to the vitriolic battles over public spaces and swimming pools, which unfolded even in his (theoretically unsegregated) home state of Pennsylvania.

Rogers created a neighborhood that was united by values and seemingly impervious to racial animus and urban crisis, a neighborhood that fit better in his imaginary world than in the actual one inhabited by the millions of Americans who tuned in. He created a Neighborhood of Make-Believe that children could enter through a magical trolley ride and the flights of their own imaginations. But in his imagination, there was a place where a code of compassion ruled, where conflicts were few and resolved quickly, and where it was possible to welcome every person as a neighbor.

by Cynthia Greenlee, JSTOR |  Read more:
Image: Grand Communications/The Fred Rogers Company

Balint Alovits
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Does Anyone Have the Right to Sex?

On 23 May 2014, Elliot Rodger, a 22-year-old college dropout, became the world’s most famous ‘incel’ – involuntary celibate. The term can, in theory, be applied to both men and women, but in practice it picks out not sexless men in general, but a certain kind of sexless man: the kind who is convinced he is owed sex, and is enraged by the women who deprive him of it. Rodger stabbed to death his two housemates, Weihan Wang and Cheng Hong, and a friend, George Chen, as they entered his apartment on Seville Road in Isla Vista, California. Three hours later he drove to the Alpha Phi sorority house near the campus of UC Santa Barbara. He shot three women on the lawn, killing two of them, Katherine Cooper and Veronika Weiss. Rodger then went on a drive-by shooting spree through Isla Vista, killing Christopher Michaels-Martinez, also a student at UCSB, with a single bullet to the chest inside a Deli Mart, and wounding 14 others. He eventually crashed his BMW coupé at an intersection. He was found dead by the police, having shot himself in the head.

In the hours between murdering three men in his apartment and driving to Alpha Phi, Rodger went to Starbucks, ordered coffee, and uploaded a video, ‘Elliot Rodger’s Retribution’, to his YouTube channel. He also emailed a 107,000-word memoir-manifesto, ‘My Twisted World: The Story of Elliot Rodger’, to a group of people including his parents, his therapist, former schoolteachers and childhood friends. Together these two documents detail the massacre to come and Rodger’s motivation. ‘All I ever wanted was to fit in and live a happy life,’ he explains at the beginning of ‘My Twisted World’, ‘but I was cast out and rejected, forced to endure an existence of loneliness and insignificance, all because the females of the human species were incapable of seeing the value in me.’

He goes on to describe his privileged and happy early childhood in England – Rodger was the son of a successful British filmmaker – followed by his privileged and unhappy adolescence in Los Angeles as a short, bad-at-sports, shy, weird, friendless kid, desperate to be cool. He writes of dyeing his hair blond (Rodger was half-white and half-Malaysian; blond people were ‘so much more beautiful’); of finding ‘sanctuary’ in Halo and World of Warcraft; being shoved by a pretty girl at summer camp (‘That was the first experience of female cruelty I endured, and it traumatised me to no end’); becoming incensed by the sex lives of his peers (‘How could an inferior, ugly black boy be able to get a white girl and not me? I am beautiful, and I am half-white myself. I am descended from British aristocracy. He is descended from slaves’); dropping out of successive schools and then community college; and fantasising about a political order in which he ruled the world and sex was outlawed (‘All women must be quarantined like the plague they are’). The necessary result of all this, Rodger said, was his ‘War on Women’, in the course of which he would ‘punish all females’ for the crime of depriving him of sex. He would target the Alpha Phi sorority, ‘the hottest sorority of UCSB’, because it contained ‘the very girls who represent everything I hate in the female gender … hot, beautiful blonde girls … spoiled, heartless, wicked bitches’. He would show everyone that he was ‘the superior one, the true alpha male’.

Late in 2017, the online discussion forum Reddit closed down its 40,000-member ‘Incel’ support group, for ‘people who lack romantic relationships and sex’. Reddit took the action after introducing a new policy of prohibiting content that ‘encourages, glorifies, incites or calls for violence’. What had started out as a support group for the lonely and sexually isolated had become a forum whose users not only raged against women and the ‘noncels’ and ‘normies’ who get to sleep with them, but also frequently advocated rape. A second incel Reddit group, ‘Truecels’, was also banned following the site’s policy change. Its sidebar read: ‘No encouraging or inciting violence, or other illegal activities such as rape. But of course it is OK to say, for example, that rape should have a lighter punishment or even that it should be legalised and that slutty women deserve rape.’

Soon after Rodger’s killings, incels took to the manosphere to explain that women (and feminism) were in the end responsible for what had happened. Had one of those ‘wicked bitches’ just fucked Elliot Rodger he wouldn’t have had to kill anyone. (Nikolas Cruz, who gunned down 17 students and staff members at Marjory Stoneman Douglas High School in Parkland, Florida on Valentine’s Day, vowed in a comment on a YouTube video that ‘Elliot Rodger will not be forgotten.’) Feminist commentators were quick to point out what should have been obvious: that no woman was obligated to have sex with Rodger; that his sense of sexual entitlement was a case-study in patriarchal ideology; that his actions were a predictable if extreme response to the thwarting of that entitlement. They could have added that feminism, far from being Rodger’s enemy, may well be the primary force resisting the very system that made him feel – as a short, clumsy, effeminate, interracial boy – inadequate. His manifesto reveals that it was overwhelmingly boys, not girls, who bullied him: who pushed him into lockers, called him a loser, made fun of him for his virginity. But it was the girls who deprived him of sex, and the girls, therefore, who had to be destroyed.

Could it also be said that Rodger’s unfuckability was a symptom of the internalisation of patriarchal norms of men’s sexual attractiveness on the part of women? The answer to that question is complicated by two things. First, Rodger was a creep, and it was at least partly his insistence on his own aesthetic, moral and racial superiority, and whatever it was in him that made him capable of stabbing his housemates and his friend a total of 134 times, not his failure to meet the demands of heteromasculinity, that kept women away. Second, plenty of non-homicidal nerdy guys get laid. Indeed part of the injustice of patriarchy, something unnoticed by incels and other ‘men’s rights activists’, is the way it makes even supposedly unattractive categories of men attractive: geeks, nerds, effete men, old men, men with ‘dad bods’. Meanwhile there are sexy schoolgirls and sexy teachers, manic pixie dreamgirls and Milfs, but they’re all taut-bodied and hot, minor variations on the same normative paradigm. (Can we imagine GQ carrying an article celebrating ‘mom bod’?)

That said, it’s true that the kind of women Rodger wanted to have sex with – hot sorority blondes – don’t as a rule date men like Rodger, even the non-creepy, non-homicidal ones, at least not until they make their fortune in Silicon Valley. It’s also true that this has something to do with the rigid gender norms enforced by patriarchy: alpha females want alpha males. And it’s true that Rodger’s desires – his erotic fixation on the ‘spoiled, stuck-up, blonde slut’– are themselves a function of patriarchy, as is the way the ‘hot blonde slut’ becomes a metonym for all women. (Many in the manosphere gleefully pointed out that Rodger didn’t even succeed in killing the women he lusted after, as if in final confirmation of his ‘omega’ sexual status: Katherine Cooper and Veronika Weiss were non ‘hot blondes’ from Delta Delta Delta who just happened to be standing outside the Alpha Phi house.) Feminist commentary on Elliot Rodger and the incel phenomenon more broadly has said much about male sexual entitlement, objectification and violence. But so far it has said little about desire: men’s desire, women’s desire, and the ideological shaping of both.

*

It used to be the case that if you wanted a political critique of desire, feminism was where you would turn. A few decades ago feminists were nearly alone in thinking about the way sexual desire – its objects and expressions, fetishes and fantasies – is shaped by oppression. (Frantz Fanon and Edward Said’s discussions of the erotics of racial and colonial oppression are important exceptions.) Beginning in the late 1970s, Catharine MacKinnon demanded that we abandon the Freudian view of sexual desire as ‘an innate primary natural prepolitical unconditioned drive divided along the biological gender line’ and recognise that sex under patriarchy is inherently violent; that ‘hostility and contempt, or arousal of master to slave, together with awe and vulnerability, or arousal of slave to master’ are its constitutive emotions. For the radical feminists who shared MacKinnon’s view, the terms and texture of sex were set by patriarchal domination – and embodied in, and sustained by, pornography. (In Robin Morgan’s words, ‘Pornography is the theory, rape is the practice.’) That there were women who seemed capable of achieving pleasure under these conditions was a sign of how bad things were. For some the solution lay in the self-disciplining of desire demanded by political lesbianism. But perhaps even lesbian sex offered no decisive escape: as MacKinnon suggested, sex under male supremacy might well be ‘so gender marked that it carries dominance and submission with it, no matter the gender of its participants’.

*

Some feminists in the 1980s and 1990s pushed back against the radical critique of sex advanced by MacKinnon and other anti-porn feminists. They insisted on the possibility of genuine sexual pleasure under patriarchy, and the importance of allowing women the freedom to pursue it. MacKinnon disparaged such ‘pro-sex’ feminists for confusing accommodation with freedom, and for buying into the idea that ‘women do just need a good fuck.’ To be fair, MacKinnon’s pro-sex adversaries weren’t arguing that women needed a good fuck – though some came uncomfortably close to suggesting that MacKinnon did. Instead they insisted that women were entitled to sex free of guilt, including heterosexual sex, if they wanted it. In ‘Lust Horizons: Is the Women’s Movement Pro-Sex?’, the essay that inaugurated sex-positive feminism, Ellen Willis set out the basic case against the MacKinnonite critique of sex: that it not only denied women the right to sexual pleasure, but also reinforced the ‘neo-Victorian’ idea that men desire sex while women merely put up with it, an idea whose ‘chief social function’, Willis said, was to curtail women’s autonomy in areas outside the bedroom (or the alleyway). Anti-porn feminism, Willis wrote, asked ‘women to accept a spurious moral superiority as a substitute for sexual pleasure, and curbs on men’s sexual freedom as a substitute for real power’.

Since Willis, the case for pro-sex feminism has been buttressed by feminism’s turn towards intersectionality. Thinking about how patriarchal oppression is inflected by race and class – patriarchy doesn’t express itself uniformly, and cannot be understood independently of other systems of oppression – has made feminists reluctant to prescribe universal policies, including universal sexual policies. Demands for equal access to the workplace will be more resonant for white, middle-class women who have been forced to stay home than it will be for the black and working-class women who have always been expected to labour alongside men. Similarly, sexual self-objectification may mean one thing for a woman who, by virtue of her whiteness, is already taken to be a paradigm of female beauty, but quite another thing for a black or brown woman, or a trans woman. The turn towards intersectionality has also made feminists uncomfortable with thinking in terms of false consciousness: that’s to say, with the idea that women often act against their own interests, even when they take themselves to be doing what they wanted to do. The important thing now is to take women at their word. If a woman says she enjoys working in porn, or being paid to have sex with men, or engaging in rape fantasies, or wearing stilettos – and even that she doesn’t just enjoy these things but finds them emancipatory, part of her feminist praxis – then we are required, as feminists, to trust her. This is not merely an epistemic claim: that a woman’s saying something about her own experience gives us strong, if not indefeasible, reason to think it true. It is also, or perhaps primarily, an ethical claim: a feminism that trades too freely in notions of self-deception is a feminism that risks dominating the subjects it wants to liberate.

The case made by Willis in ‘Lust Horizons’ has so far proved the enduring one. Since the 1980s, the wind has been behind a feminism which takes desire for the most part as given – your desire takes the shape that it takes – and which insists that acting on that desire is morally constrained only by the boundaries of consent. Sex is no longer morally problematic or unproblematic: it is instead merely wanted or unwanted. In this sense, the norms of sex are like the norms of capitalist free exchange. What matters is not what conditions give rise to the dynamics of supply and demand – why some people need to sell their labour while others buy it – but only that both buyer and seller have agreed to the transfer. It would be too easy, though, to say that sex positivity represents the co-option of feminism by liberalism. Generations of feminists and gay and lesbian activists have fought hard to free sex from shame, stigma, coercion, abuse and unwanted pain. It has been essential to this project to stress that there are limits to what can be understood about sex from the outside, that sexual acts can have private meanings that cannot be grasped from a public perspective, that there are times when we must take it on trust that a particular instance of sex is OK, even when we can’t imagine how it could be. Thus feminism finds itself not only questioning the liberal distinction between the public and the private, but also insisting on it.

Yet it would be disingenuous to make nothing of the convergence, however unintentional, between sex positivity and liberalism in their shared reluctance to interrogate the formation of our desires. Third and fourth-wave feminists are right to say, for example, that sex work is work, and can be better work than the menial labour undertaken by most women. And they are right to say that what sex workers need are legal and material protections, safety and security, not rescue or rehabilitation. But to understand what sort of work sex work is – just what physical and psychical acts are being bought and sold, and why it is overwhelmingly women who do it, and overwhelmingly men who pay for it – surely we have to say something about the political formation of male desire. And surely there will be similar things to say about other forms of women’s work: teaching, nursing, caring, mothering. To say that sex work is ‘just work’ is to forget that all work – men’s work, women’s work – is never just work: it is also sexed. (...)

*

‘The beautiful torsos on Grindr are mostly Asian men hiding their faces,’ a gay friend of mine says. The next day I see on Facebook that Grindr has started a web series called ‘What the Flip?’ In its first three-minute episode, a beautiful, blue-haired East Asian guy and a well-groomed, good-looking white guy trade Grindr profiles. The results are predictably grim. The white guy, now using the Asian guy’s profile, is hardly approached, and when he is it’s by men announcing that they’re ‘Rice Queens’ and like Asian men for being ‘good at bottoming’. When he ignores their messages, abuse is hurled at him. The Asian guy’s inbox, meanwhile, is inundated with admirers. Talking about it afterwards, the white guy expresses his shock, the Asian guy cheerful resignation. ‘You’re not everybody’s cup of tea, but you’re going to be somebody’s,’ the white guy offers, feebly, before they hug it out. In the next episode, a ripped Ryan Gosling-type switches profiles with a pretty-faced chubby guy. In episode three a fem guy trades with a masc guy. The results are as one would expect.

The obvious irony of ‘What the Flip?’ is that Grindr, by its nature, encourages its users to divide the world into those who are and those who are not viable sexual objects according to crude markers of identity – to think in terms of sexual ‘deal-breakers’ and ‘requirements’. In so doing, Grindr simply deepens the discriminatory grooves along which our sexual desires already move. But online dating – and especially the abstracted interfaces of Tinder and Grindr, which distil attraction down to the essentials: face, height, weight, age, race, witty tagline – has arguably taken what is worst about the current state of sexuality and institutionalised it on our screens.

A presupposition of ‘What the Flip?’ is that this is a peculiarly gay problem: that the gay male community is too superficial, too body-fascist, too judgy. The gay men in my life say this sort of thing all the time; they all feel bad about it, perpetrators and victims alike (most see themselves as both). I’m unconvinced. Can we imagine predominantly straight dating apps like OKCupid or Tinder creating a web series that encouraged the straight ‘community’ to confront its sexual racism or fatphobia? If that is an unlikely prospect, and I think it is, it’s hardly because straight people aren’t body fascists or sexual racists. It’s because straight people – or, I should say, white, able-bodied cis straight people – aren’t much in the habit of thinking there’s anything wrong with how they have sex. By contrast, gay men – even the beautiful, white, rich, able-bodied ones – know that who we have sex with, and how, is a political question.

There are of course real risks associated with subjecting our sexual preferences to political scrutiny. We want feminism to be able to interrogate the grounds of desire, but without slut-shaming, prudery or self-denial: without telling individual women that they don’t really know what they want, or can’t enjoy what they do in fact want, within the bounds of consent. Some feminists think this is impossible, that any openness to desire-critique will inevitably lead to authoritarian moralism. (We can think of such feminists as making the case for a kind of ‘sex positivity of fear’, just as Judith Shklar once made the case for a ‘liberalism of fear’ – that is, a liberalism motivated by a fear of authoritarian alternatives.) But there is a risk too that repoliticising desire will encourage a discourse of sexual entitlement. Talk of people who are unjustly sexually marginalised or excluded can pave the way to the thought that these people have a right to sex, a right that is being violated by those who refuse to have sex with them. That view is galling: no one is under an obligation to have sex with anyone else. This too is axiomatic. And this, of course, is what Elliot Rodger, like the legions of angry incels who celebrate him as a martyr, refused to see. On the now defunct Reddit group, a post titled ‘It should be legal for incels to rape women’ explained that ‘No starving man should have to go to prison for stealing food, and no sexually starved man should have to go to prison for raping a woman.’ It is a sickening false equivalence, which reveals the violent misconception at the heart of patriarchy. Some men are excluded from the sexual sphere for politically suspect reasons – including, perhaps, some of the men driven to vent their despair on anonymous forums – but the moment their unhappiness is transmuted into a rage at the women ‘denying’ them sex, rather than at the systems that shape desire (their own and others’), they have crossed a line into something morally ugly and confused.

In her shrewd essay ‘Men Explain Lolita to Me’, Rebecca Solnit reminds us that ‘you don’t get to have sex with someone unless they want to have sex with you,’ just as ‘you don’t get to share someone’s sandwich unless they want to share their sandwich with you.’ Not getting a bite of someone’s sandwich is ‘not a form of oppression, either’, Solnit says. But the analogy complicates as much as it elucidates. Suppose your child came home from primary school and told you that the other children share their sandwiches with each other, but not with her. And suppose further that your child is brown, or fat, or disabled, or doesn’t speak English very well, and that you suspect that this is the reason for her exclusion from the sandwich-sharing. Suddenly it hardly seems sufficient to say that none of the other children is obligated to share with your child, true as that might be.

Sex is not a sandwich. While your child does not want to be shared with out of pity – just as no one really wants a mercy fuck, and certainly not from a racist or a transphobe – we wouldn’t think it coercive were the teacher to encourage the other students to share with your daughter, or were they to institute an equal sharing policy. But a state that made analogous interventions in the sexual preference and practices of its citizens – that encouraged us to ‘share’ sex equally – would probably be thought grossly authoritarian. (The utopian socialist Charles Fourier proposed a guaranteed ‘sexual minimum’, akin to a guaranteed basic income, for every man and woman, regardless of age or infirmity; only with sexual deprivation eliminated, Fourier thought, could romantic relationships be truly free. This social service would be provided by an ‘amorous nobility’ who, Fourier said, ‘know how to subordinate love to the dictates of honour’.) Of course, it matters just what those interventions would look like: disability activists, for example, have long called for more inclusive sex education in schools, and many would welcome regulation that ensured diversity in advertising and the media. But to think that such measures would be enough to alter our sexual desires, to free them entirely from the grooves of discrimination, is naive. And whereas you can quite reasonably demand that a group of children share their sandwiches inclusively, you just can’t do the same with sex. What works in one case will not work in the other. Sex isn’t a sandwich, and it isn’t really like anything else either. There is nothing else so riven with politics and yet so inviolably personal. For better or worse, we must find a way to take sex on its own terms.

by Amia Srinivasan, London Review of Books |  Read more:

Image: Beth Holgate
[ed. Whew... how did everything get so complicated.]

Herman Heijenbrock, Interior of a confectionery

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Josef K. in Washington: Closing the Courthouse Door

Erwin Chemerinsky is one of the country’s most distinguished legal scholars—the dean of the University of California, Berkeley School of Law, the author of several books, and a frequent commentator on the Supreme Court who is able to explain legal complexities clearly. His subject in Closing the Courthouse Door is a dozen legal doctrines that make it difficult or impossible to vindicate our constitutional rights through the judicial system. A few were created by Congress, but mostly they are the work of the Supreme Court, which in his view goes to great lengths to stop Americans from getting their day in court. The twentieth-century expansion of civil liberties and civil rights encouraged Americans to go to court to hold government and business more accountable. The Court responded by reinterpreting the Constitution and procedural rules to stop lawsuits it viewed as undesirable.

Many of these doctrines are not well understood by people outside the legal profession. For example, as Chemerinsky observes:

If the Supreme Court were to hold that the government can give unlimited amounts of money to religious schools, the decision would make the front-page headline of every newspaper in the country. But if the Court were to hold that no one has standing to challenge the government when it gives money to parochial schools, that would get far less attention. Yet the effect is exactly the same: if no one can challenge a government action in court, the government can do what it wants.

Article 3 of the Constitution ensures that the courts only hear genuine “cases and controversies,” but it was not until the 1920s that the Supreme Court began using it to limit who can sue the government. In 1992, the Court declared, in Lujan v. Defenders of Wildlife, that citizens lack standing to challenge a government action in court unless it causes “a concrete and particularized” injury to the person suing. Chemerinsky thinks this is absurd: he argues that “it makes no sense to have a situation where no one can sue because of a hypothetical concern over wanting to make sure that there is the best plaintiff.” (True to his principles, Chemerinsky is one of the legal scholars who has filed a lawsuit challenging Donald Trump’s business ties as a violation of the Constitution’s emoluments clause—a challenge that some experts predict will fail for lack of standing.)

What is standing? The standing doctrine prevented Adolpho Lyons, an African-American choked until he became unconscious by Los Angeles police in a routine traffic stop in 1976, from requesting an injunction against the LAPD’s chokehold policies. He was able to sue for his injuries and collected a nominal settlement, but the Supreme Court declared that Lyons could not challenge the police policy of using chokeholds, because he could not show that he would likely be the victim of one in the future. Obviously, nobody could show that—and so nobody has standing to challenge the policy in court. Police officers continue to use chokeholds, as the death of Eric Garner in 2014 reminds us. (...)

In criminal cases, Congress and the Court have dramatically reduced federal judicial review of convictions and sentences pursued through habeas corpus petitions. (“Habeas corpus,” Chemerinksy explains, “allows a federal court to provide relief to a person who was convicted or sentenced in violation of the Constitution and laws of the United States,” and has been used, for example, to challenge “grossly disproportionate” sentences.) Apparently troubled by repeated prisoner petitions, the Court has erected technical barriers to them. For example, it found that petitioners who failed to raise their constitutional challenge in state court cannot later raise it in a habeas petition, in effect dooming those whose defense lawyers failed to raise the challenge earlier. In 1996, during an upsurge of tough-on-crime sentiment, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). One of its stated aims was reducing the number of appeals filed in death penalty cases, and it erected further obstacles to habeas petitions, including a one-year statute of limitations.

More importantly, AEDPA forbids habeas petitions unless the state court decision against the prisoner was an “unreasonable application of clearly established federal law.” In the Court’s view, this means that the error in the state court’s decision must be “beyond any possibility for fairminded disagreement.” But as Judge Stephen Reinhardt explains:

If the “fairminded jurist” rule were taken literally, it would mean that a federal court could never grant habeas relief. That is because, in order to grant habeas relief, we would need to find that each of the state court judges who denied the petitioner’s claim was not fairminded…. In fact, under the Court’s rationale, if only a single Supreme Court justice agreed with the state court, the rest of the Court would have to adopt the view that the dissenting Justice was not “fairminded” in order to grant habeas relief.

Chemerinsky attacks not only doctrines that reduce government accountability but also those that protect private defendants by keeping plaintiffs out of court. In 1938, the Federal Rules of Civil Procedure made it possible to initiate a lawsuit by filing a plain-language complaint setting out what the plaintiff intends to prove. Because plaintiffs cannot begin acquiring information from the defendant (in the process called “discovery”) until a complaint is filed, the rule ensures that complaints will not be dismissed for lack of evidence. Injured persons claiming that a company knew its products were unsafe or plaintiffs claiming employment discrimination, for instance, normally need discovery to prove their case, and the legal reformers who drafted the 1938 rules aimed to make this possible. Convinced that legal technicalities were keeping legitimate lawsuits out of court, the Court followed their recommendation and created an open-door policy.

However, in Ashcroft v. Iqbal (2009), the Supreme Court unexpectedly reversed this seventy-year-old rule. The Pakistani-American plaintiff had been arrested in November 2001 in relation to the September 11 attacks and held for months. He charged that he was arrested solely on the basis of his religion and ethnic background, but to win the case he would have to prove the discriminatory motive of the officials he was suing. For that, he would need discovery. But the Court demanded that when plaintiffs file complaints, they must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

As one writer puts it, the decision threatens to trap plaintiffs in the catch-22 of needing discovery to get discovery. Citing two studies, Chemerinsky argues that Iqbal has had harsh effects on civil rights plaintiffs as well as criminal defendants, and has led to cases being dismissed much more frequently. Here, however, matters are not as clear as he suggests; there have been more than a dozen studies of Iqbal’s effect, and they disagree substantially over whether it has made a difference.

Other doctrines that limit access to courts include restrictions on class actions, which are the only way that large groups of consumers who individually suffer relatively small losses from corporate misconduct can afford to bring suit. The Court has made it harder to certify classes and has imposed requirements that plaintiffs give notice to all individuals who might be affected by the case, which can be extremely expensive. Furthermore, it has upheld arbitration clauses that forbid class actions, even if state law declares those clauses illegal because consumers and employees have no real choice whether to sign the contracts that require arbitration. Justice Scalia, writing for the majority in ATT Mobility v. Concepcion (2011), explained that if defendants face the threat of class actions they “will be pressured into settling questionable claims.” In Chemerinsky’s words, “the Court’s desire to protect business and its hostility to class action suits could not have been more clearly stated.” (I once heard a distinguished federal judge quip that Justice Scalia’s definition of a frivolous lawsuit was any lawsuit that the plaintiff wins.)

Chemerinsky might have mentioned additional doctrines created by the Court that make it hard for civil rights plaintiffs to bring their cases to trial. Recognizing that civil rights cases don’t always provide plaintiffs with a financial remedy, in 1976 Congress passed a law permitting courts to award attorneys’ fees to prevailing parties in many such cases. The Court has since whittled away at that law. In 1985 it ruled that prevailing plaintiffs would not be entitled to compensation for any attorneys’ fees incurred after a settlement was offered unless the settlement was less than the award at trial; a year later it allowed defendants to offer settlements on the condition that plaintiffs waive their right to attorneys’ fees. In one case, the Court ruled that plaintiffs would not be entitled to attorneys’ fees if the defendant provides the relief a plaintiff requests, even if the case has gone on for years, with the legal bills mounting. The decision empowered defendants whose strategy is to bankrupt public-interest law firms by drawing a case out for years and then granting the requested relief at the last moment before trial.

In Chemerinsky’s view, the basic mission of the federal courts is not to settle disputes among litigants, but to interpret and enforce the US Constitution, while safeguarding it from the will of political majorities. The judiciary’s job is

to serve as the nation’s moral conscience—an institution responsible for identifying values so important that they should not be sacrificed, and reminding the country when its own most cherished values are being violated.

If this is indeed the judiciary’s task, then the doctrines Chemerinsky discusses, including many unanimous decisions to throw cases out of court, are a regrettable failure. Chemerinsky clearly sees matters that way. But readers are likely to come away from his book with a far less agreeable and idealistic image of how the Supreme Court views its mission: it labors hard to keep cases out of court, and it succeeds regularly, decade after decade. Perhaps the Court does so out of fear of a flood of frivolous litigation, perhaps out of a bias toward giving government officials a wide margin of error, or perhaps out of a political ideology of “our Federalism,” the Court’s sentimentalized term for favoring states’ rights over national government (except when the state courts are too friendly to class action plaintiffs, in which cases, under the Class Action Fairness Act of 2005, the suits are moved to the federal courts).

by David Luban, NY Review of Books |  Read more:

Image: Anacleto Rapping/Los Angeles Times/Getty Images

[ed. See also: Who Killed Habeas Corpus?]

Who Owns Water?

As Scott Carpenter and a few friends paddled down the Pecos river in New Mexico last May, taking advantage of spring run-off, the lead boater yelled out and made a swirling hand motion over his head in the universal signal to pull over to shore. The paddlers eddied out in time to avoid running straight through three strings of barbed wire obstructing the river.

Swinging in the wind, the sign hanging from the fence read “PRIVATE PROPERTY: No Trespassing”.

One member of their party waded into the swift water to lift the wire with a paddle for the others to float under. As they continued downstream, Carpenter, a recreational boater from Albuquerque, looked over his shoulder a see a figure standing outside the big ranch house up the hill. He offered a wave, but received nothing in return.

It’s a scene playing out with increasing frequency in New Mexico, where a recent bid to legally privatize streams has public users like Carpenter more than a little alarmed, not least for the precedent it might set beyond the borders of this western state.

While the fight over US public lands has reached a fever pitch unlike anything seen in recent decades, and the Trump interior department seeks to lease out vast areas to private interests for mining and drilling, the fate of public waterways has largely flown under the radar. Now New Mexico has become a battleground for that very issue, with the state government, landowners, and outfitters on one side of the fight and anglers, boaters, recreationalists and heritage users on the other. At the heart of the argument: who owns the water that has long been considered the lifeblood of the arid west.

Water use rights and access vary by region across the country, though the water itself has always been a public resource for people to fish, paddle, wade and float in. Private landowners have long taken unsanctioned steps to keep the public out of waterways, as in the recent case of an Arizona man convicted of shooting at kayakers boating down a river that runs through his land.

But in the last hours of 2015, efforts to bar public access received official sanction, when New Mexico’s state government quickly and quietly passed a bill that implies private ownership of public waters that run through private land. It was a response to a statement from New Mexico’s then attorney general, Gary King, that the public can wade and fish in streams running through private property, as long as they remain in the stream, which is in line with common doctrine in many states. Landowners and outfitters protested.

The rule remained mostly dormant until late December, when in a special meeting with only 10 days’ notice – just a third of the 30-day standard – the state began a process to allow landowners to certify streambeds as private property.

“Prohibiting access from the public is privatizing what has been historically ours, and the way this happened is chilling,” says Robert Levin, New Mexico director of the American Canoe Association. “The process was hasty and moved through more quickly than it should have been. From a recreation standpoint on this, you start to worry about an erosion of inclusion.”

Garrett VeneKlasen, 51, grew up fly-fishing the Pecos, a well-known river that cuts across western New Mexico, with his father. He remembers when it was possible to walk nearly the entire length of the river without running into fencing. “As long as you were respectful to the landowner and private property, you could pretty much come and go and fish right through that entire watershed,” he recalls. “There was almost no exclusivity.”

But when the experience of fly-fishing became a commodity, things started to shift. VeneKlasen had a front-row seat to the evolution when he landed his first job as a fishing guide at 15 years old. He explains it with an example he’s seen play out on what’s now a fenced section of the Pecos.

“That landowner started out just like any landowner, and he had trout in the stream that runs through his property. He decided to do some in-stream improvements, and the trout fishing got better. Then he started to stock big trout in the section that ran through his land, and feed them so they’re artificially big – and suddenly, you can sell an experience. So he fences the river to keep other people out, and to some extent, to keep those fish in. And just like that, a lifestyle became an industry.”

by Cassidy Randall, The Guardian |  Read more:

Image: Garrett VeneKlasen

Should Some Species Be Allowed to Die Out?

Under the rules of the Endangered Species Act, once a species is discovered to be at risk of extinction, government agencies are required by law to take steps to save it. For years, critics have challenged that mandate, arguing that it undercuts the ability to weigh a species’ value or to consider the economic impact of its preservation — for instance, the cost of prohibiting logging in a valuable tract of forest. Since Donald Trump took office, these objections have gained ground; there are currently six bills pending in Congress, all aimed at overhauling (some would say gutting) the Endangered Species Act. (...)

One arguably legitimate criticism of the Endangered Species Act is that trying to save every creature is both unrealistic and inefficient. Because the act requires that we help all species at risk of extinction, the argument goes, agencies end up spending vital resources on less-important species, rather than concentrating on the most critical ones. Assigning value to species is a nearly impossible undertaking, because it involves a bewildering number of variables, including ecological importance, utility (coral reefs can act as breakwaters during coastal storms), the species’ place in our heritage, even its beauty or symbolism. Conservation has no formula for weighting these factors, either alone or in combination, and it’s hard to imagine one that people could agree on. How do we decide whether the wolf or the snow leopard is more valuable?

In response, some conservation groups have argued that we should put our efforts toward saving the most genetically diverse species, with the goal of increasing our long-term ecological resiliency. (In this view, saving the akikiki, which is one of 18 living species of Hawaiian honeycreeper, would be a low priority.) Others have suggested prioritizing “functional diversity”: the preservation of key species, like predators and pollinators, whose presence can radically affect an ecosystem.

All of which makes the akikiki a complicated case in point: In the face of growing political and environmental pressures, how should we decide what to save?

Of the 1,280 endangered animals and plants listed by the United States Fish and Wildlife Service, 557 are from Hawaii, including the short-tailed albatross, the Hawaiian hoary bat and the Kauai cave wolf spider, as well as four species of turtle, six damselflies, two varieties of pond shrimp, four snails and seven kinds of yellow-faced bee. Conservationists have called the islands “the extinction capital of the world.”

This is true in part because Hawaii is a tropical paradise so fertile that seeds from a foreign plant can spread to blanket the island in the space of a few years. When the islands were new bits of volcanic rock in the middle of a vast ocean, this fertility worked in species’ favor, allowing them to diversify, Galapagos-style, into dozens of discrete niches, with few competitive pressures. In the last hundred years, though, those same factors have become a liability. Hawaii’s tropical weather and location as a Pacific trade and tourism hub have made it a kind of petri dish for invasive species, which arrive from nearly every continent and multiply extravagantly. On the Big Island, mongoose have proliferated, devastating local bird populations; so have Puerto Rican coquí frogs, which chirp abruptly and erratically at 90 decibels, like a mobile infestation of alarm clocks. Cases of rat lungworm have risen sharply over the past five years, driven first by the arrival of the lungworm parasite, from Southeast Asia, followed by the spread of a nonnative slug that carries the disease. Kauai, meanwhile, is plagued by feral pigs, rose-ringed parakeets and a new invasive seaweed that arrived either in ballast water or in the dumped contents of aquarium tanks and that has begun to smother the island’s reef ecosystem. Since 1992, when a hurricane knocked over chicken coops, the island has also been overrun by roving bands of roosters and chickens; on my first day in Lihue, I saw dozens of them, many trailing hordes of chicks.

Faced with these cosmopolitan arrivals, island species can seem like the wildlife equivalent of a naïve Midwesterner asking a guy in Times Square to hold his wallet. Native trees and plants have often lost their defenses — the islands have stingless nettles and thornless raspberries — and in many cases grow more slowly, making them easy marks for more aggressive species like miconia, a flowering plant from Central America that grows like a weed, produces thousands of seeds and shades out everything in its vicinity. Native animals and birds don’t fare much better. “We have a seabird, the Laysan albatross, that nests on the ground,” said Joshua Fisher, a biologist with the U.S. Fish and Wildlife Service. “A rat or a cat or a mongoose can literally walk right up to it and start eating its eggs. The birds just don’t know what to do.”

And once nonnative species do begin to take over, stopping them can be a Sisyphean task. One invasive fungus that kills ohia trees can spread just from the quantity of dirt trapped in the tread of a sneaker. (To combat this, Hawaii has asked hikers to scrub their boots with alcohol or a bleach solution.) A recent study at Kahului Airport on Maui found an average of one new insect species arriving every day. In the Alakai and elsewhere, these pressures have steadily squeezed out native species, at the same time as development has left them with less land to occupy. On top of that, even when an endangered animal survives in captivity, it often can’t be reintroduced to the wild without falling victim to the same factors that drove it toward extinction in the first place.

As a result, our role as stewards of the earth is becoming more and more like that of doctors in a global intensive-care unit, trapped in a cycle of heroic, end-of-life measures. Many conservationists now operate in a state of constant maintenance: endlessly working to weed out invasive plants and predators, while trying to prop up species that have fallen into decline. At worst, an endangered animal becomes a literal ward of the state: preserved only in breeding facilities or in tiny, meticulously maintained “wild” habitats. “They’re like patients that are never going to be discharged from the hospital,” the environmental writer Emma Marris told me. “It’s a permanent situation.”

The official term for such species is “conservation-reliant.” When I spoke with Michael Scott, a wildlife biologist at the University of Idaho who helped direct the California condor research effort, he estimated that roughly 84 percent of species on the United States endangered list are currently conservation-reliant. Of those, he added, a vast majority are in Hawaii. “Hawaii is the world capital of conservation-reliant species,” Scott said.

It’s not surprising that, at least initially, an endangered species would survive only with outside help. Where things get more complicated is when that care becomes perpetual. Proponents of the Endangered Species Act like to point to its efficacy: of all the species listed since 1973, 99 percent are still around. The flip side, critics observe, is that only 1 percent of those species have been sufficiently rehabilitated to leave the list.

But while conservation might benefit from a nuanced discussion of how best to allocate resources around vanishing species, a far more sweeping set of proposals has recently been put forward by elected officials hoping to take advantage of the Trump administration’s willingness to weaken the environmental protections afforded by the Endangered Species Act. One bill, proposed by Pete Olson, a Republican congressman from Texas, would require a financial accounting before a species could be listed as threatened, ostensibly to prevent overspending but in practice giving local and federal governments a way to thwart new listings, especially those that might conflict with business interests like ranching, logging and development. Another, sponsored by Dan Newhouse, a Republican congressman from Washington, would change the criteria used to determine whether a species is endangered by expanding the definition of “best available” science to include studies conducted by local governments — a practice that Nora Apter at the National Resources Defense Council has described as “undermining the scientific listing process” by giving equal weight to potentially shoddy or biased studies.

“Behind closed doors, I think most conservationists would agree that some judicious modifications to the act could improve the situation,” Chris Costello, a resource economist at the University of California, Santa Barbara, says. But, he adds, “there’s also a real and legitimate concern that if you open the E.S.A. up to economic criteria, it will almost immediately become much weaker. Without that mandate, it’s very hard to generate the political will to save species.”

Political maneuvering around the Endangered Species Act isn’t particularly new. Since the late 1980s, critics have argued that the act limits industry and also hurts ranchers and loggers, for instance, by preventing ranchers from shooting wolves that prey on their livestock (a prohibition that has now largely been repealed). In 2008, an investigative report by The Washington Post concluded that the Bush administration managed to limit the species eligible for protection by erecting “pervasive bureaucratic obstacles” — for instance, by preventing Department of the Interior officials from using information in agency files that might support new listings.

What makes the current set of proposed bills different, Apter and others say, isn’t their content but the current political environment — a sympathetic president and a Republican-controlled House and Senate — which makes them more likely to succeed. The real purpose of the bills, opponents argue, is to create business-friendly loopholes that would drastically undermine the protections of the original law, not least because one of the biggest impacts of the act isn’t the resuscitation of an individual species but the other benefits that effort brings. According to the act, protecting a species also means preserving its habitat, a provision that inevitably helps the vast number of plants and animal that happen to occupy the same ecosystem. (A fence built to keep invasive wild pigs out of the akikiki’s breeding area, for instance, will also help protect dozens of native plants and trees, including the ohia, because it will stop the pigs from spreading invasive seeds in their feces.)

“They’re basically trying to steamroll it,” Apter told me. She said that at least one bill was also trying to make the listing requirements for endangered species more elaborate, further hobbling a process — data gathering, scientific assessment and priority and practicality evaluation — that is already backlogged. (The U.S. Fish and Wildlife Service puts the number of potentially at-risk species waiting review at 550.)

When I mentioned this concern to Paul Ferraro, an economist at Johns Hopkins University, he acknowledged the danger posed to the Endangered Species Act by the current bills. But he also noted that, at a purely economic level, some trade-offs will be inevitable. “The fact is that when you spend resources on one species, you by definition are not spending them on another,” Ferraro said. “In the end, you can’t get away from putting values on species.”

by Jennifer Kahn, NY Times Magazine |  Read more:

Image: Alaka’i swamp. Spencer Lowell for The New York Times

Best Buy’s Bait and Switch Return Policy

The Wall Street Journal reports today on Best Buy’s aggressive anti-returns policy. The reason this looks, and is, ugly, is that it appears that the electronics retailer is violating consumer advertising fraud rules. We’ll get into more detail, but at a high level, Best Buy has hired a snoop service, Retail Equation, which apparently also serves other retailers.

Return fraud is a legitimate problem. Customers can and do try to return stolen items, or ones they’ve broken or even merely used. The Journal reports that 11% of items bought at retail are returned, and of that, 11% (no typo) are believed to be fraudulent returns.

However, some online vendors are encouraging customers to view returns as integral to the purchase, and go to great lengths to make returns easy. For instance, many stores that sell shoes will include a UPS return tag. You don’t need to call, you can just give the box to the UPS man if he comes regularly to your building or call to have him pick it up. You will be charged something modest for the return, like $6.95. But it is as close to frictionless as it can be made.

The problem with what Best Buy is doing is that it is advertising a not-very-restrictive returns policy, when in fact if you try returning goods “too often,” even if you are adhering perfectly to Best Buy’s advertised policy. Even though Best Buy is somewhat restrictive, it’s rules are supposedly clear: customers can return products in 15 days if they have a receipt.

But there is the stated policy versus the actual policy. From the Journal:

Jake Zakhar recently returned three cellphone cases at a Best Buy store in Mission Viejo, Calif., and a salesperson told him he would be banned from making returns and exchanges for a year. The 41-year-old real-estate agent had bought cases in extra colors as gifts for his sons and assumed he could bring back the unused ones within the 15 days stated in the return policy as long as he had a receipt. 

The salesperson told him to contact Retail Equation, based in Irvine, Calif., to request his “return activity report,” a history of his return transactions. The report showed only three items—the cellphone cases—totaling $87.43. He asked the firm to lift the ban, but it declined. When he appealed to Best Buy and tweeted his report, the company referred him back to Retail Equation. 

“I’m being made to feel like I committed a crime,” said Mr. Zakhar. “When you say habitual returner, I’m thinking 27 videogames and 14 TVs.”

It is not clear that this policy is even remotely legal in light of Best Buy having a published policy that says nothing about limiting returns and that Best Buy is not claiming that Zakhar engaged in any kind of fraud. In fact, if he wanted to make an issue of it, he could pay on a credit card, return the merchandise, and then dispute the charge if Best Buy tried to refuse his attempt to return undamaged goods. He might need a buddy to film or otherwise provide proof of his effort to return goods.

While other merchants have been tightening their policies (the famously generous LL Bean standard of “lifetime satisfaction” has now been dialed down to a mere “return in a year or less), discriminating by using an unaccountable third party also raises questions of discrimination that ought to raise red flags. It is not hard to imagine that these programs also filter by ZIP code, which is a proxy for general income ranges and also have their ethnic mixes well tracked by companies that specialize in consumer market segmentation. And this is consistent with the fact that the Journal depicts Retail Equation as giving consumers a score. Retail Equation lists some of the that can get you dinged:

Returning an item after a certain period 

Returning items that tend to get stolen at the retailer 

Returning a high dollar amount 

Returning an item just when a store closes

In other words, if you are a perfectly upstanding customer making a return that is kosher (goods in fine shape, valid original receipt), you still get dinged simply because someone who is engaging in fraud could engage in a behavior that has an element in common with what you did (return a costly item, show up near closing time).

by Yves Smith, Naked Capitalism |  Read more:

Image: via

Experiencing the Joy of Transitioning Feels Really Powerful

The last time I saw Mallory Ortberg, author of the New York Times-bestselling Texts from Jane Eyre, co-founder of The Toast, and Slate’s Dear Prudence columnist, we spent a glorious afternoon coasting via aerial tramway to the top of a serious mountain, then rode something called a “mountain coaster” back down—which did not surprise me, because Mallory is the kind of friend and the kind of person who makes me feel like I can do new and brave things. With The Merry Spinster: Tales of Everyday Horror, Mallory has created something new and brave; it’s a gorgeously witty, frequently dark, consistently satisfying collection of tales that could only have come from this author. Like all the best fairy and folk tales, the stories offer surprises and sly winks to keep you in thrall, while illuminating all the vulnerability and deep complexity of relationships between family, friends, lovers, and enemies. It was a joy to chat with Mallory last month about the work of imposing shrewd new twists on beloved stories and characters, the unique challenges and pleasures of the short story form, and what it was like to write this new anthology while transitioning.

Nicole Chung: I’m always happy when we talk, and today I’m glad to have such a thrilling excuse to talk to you. Congratulations on your book! How are you? What’s been going on?

Mallory Ortberg: Well, today has been a very big day. When you called, I was finishing up at the gender clinic, where I got my very first injection of testosterone!

NC: Oh, congratulations, I am so excited for and proud of you!

MO: Thank you! As you know, I was on patches at a low dose for 90 days, in part because I was operating on a theory (that theory being: maybe I am trans; I don’t know really know what sort of trans experience this is; I don’t know how much of this I want), and that experiment went so very, very well. When I took a pause, it was very clear to me that I wanted to continue. So I decided to switch to injections. I just got my first shot at the clinic, and it felt fantastic.

NC: As your friend, I’ve felt really glad that there has been joy in each new step for you, which is not to minimize the challenges at all.

MO: It was a little over a year ago that I first started asking myself, consciously, “Am I trans?” I was finishing the book at that point. So much of the last year has been painful, isolating, frightening—but the moments of clarity, joy, and excitement that have come from being around other trans people and accessing medical transition have helped me realize this is not just about what I’m afraid of; this is also about wanting something, desiring something, excitedly looking toward the future and visualizing real possibility. Letting myself experience the joy of transitioning, and not just the fear, feels really powerful.

I’ve been so anxious with the idea of going on book tour. I know I’m going to look different than the last time I had a lot of public appearances. But as much as one can be certain of anything, I know that I want to go do this book tour as an out trans person.

by Nicole Chung, LitHub |  Read more:

Image: uncredited

[ed. Nobody on the web writes like Mallory (Danny). Here's another interview (Mallory is not gone). See also: So You've Decided to Drink More Water and Everything That’s Wrong About Raccoons]

Joel Meyerowitz

[ed. See also: Photographing a New Era of American Leisure During the Vietnam War]

Eusebio + Christina Saenz de Santamaria, Crazy Beautiful

via:

Repost

Democrats and the Crisis of Legitimacy

The American electoral system, and with it what passes for representative democracy, is facing a crisis of legitimacy reflected in continued fallout from the 2016 election. The duopoly political Parties—Democrats and Republicans, have both experienced mass exoduses for reasons specific to each. Because they have effective control over which candidates and programs get put forward in elections, they must be gotten out of the way for constructive political resolution to be possible.

The Republican Party saw a mass exodus of registered voters when George W. Bush’s war against Iraq became a conspicuous quagmire. By the time of the financial crisis that marked the onset of the Great Recession, some fair number had registered as Democrats while others dropped their duopoly Party affiliation to become what are implausibly called ‘independents.’

At the time it became apparent that the Obama administration was intent on restoring the forces of economic repression— Wall Street and corporate-state plutocracy, the Democrats saw their own mass exodus. Against the storyline of competing interests, registered voters fled both Parties. By implication, these mass exoduses suggest that neither duopoly Party represents the programs and candidates of interest to voters.

These mass exoduses have several implications: (1) with voters fleeing both duopoly Parties, it is the political system that has lost credibility, (2) the back-and-forth of faux ‘opposition’ that provided the illusion of political difference has lost potency as a driver of domestic politics and (3) charges that foreign influence determined the 2016 electoral outcomes are wholly implausible when placed in the context of the scale of voter disaffection with the duopoly Party system.

For instance, 71% of eligible voters didn’t vote for the Democratic Party candidate. 73% didn’t vote for Donald Trump (Clinton won the popular vote). Ninety million eligible voters (40%) didn’t cast a ballot at all. Why it makes sense to present outcomes in terms of what voters didn’t do is (1) the duopoly Parties control which candidates and programs are put forward and (2) voters have fled the duopoly Party system rather than simply switching Parties.

The political problem for the national Democrats is that one can endorse the very worst that can be said about their alleged opposition, the Republicans, without raising their standing. Between 2009 and 2016 somewhere between eight and ten million registered voters— 20% of registered Democrats, fled the Democratic Party. In conjunction with the loss of over 1,000 legislative seats over this same period, the Democrats were in the midst of a full blown political crisis going into the 2016 election.

But here’s the punchline— the Republicans were also in the midst of a political crisis of their own. As disaffection with Barack Obama’s programs took hold, national Republicans saw little benefit (top graph). Voters didn’t simply switch Parties. They left both Parties. The implied motivation isn’t that the ‘opposition’ Party had better ideas. Had this been the case, total Party affiliation would have remained largely unchanged. But that isn’t the case. For a two-Party political system, such abandonment of the ‘center’ is a textbook definition of a crisis of legitimacy.

Over the prior century the duopoly Party strategy has been to maintain control of the political system by controlling the electoral process regardless of levels of political disaffection. The Democrats’ ‘crises’ of 1968 and 1972 were a result of systemic inflexibility in the face of widespread political disaffection. Phrased differently, tightly controlled electoral ‘choices’ are inadequate during crises of systemic legitimacy. Their ultimate response was to lead a right-wing coupagainst the political accommodations of the New Deal and the Great Society.

Back in the present, the strategic term for newly unaffiliated voters is ‘independent,’ as if the wholesale, willful abandonment of Party affiliation solved the problem of Party control over which candidates do and don’t get to run for office. By 2016 over 40% of registered voters, including those who had recently left the Democratic Party, were self-defined as unaffiliated with either duopoly Party (graph below). And this figure leaves aside thirty million eligible voters who aren’t registered to vote.

In response, political pollsters created categories of ‘Democratic-leaning’ and ‘Republican-leaning’ as if (1) the mass exodus from Party affiliation were a fashion statement rather than one of political disaffection and (2) duopoly Party control over the electoral process doesn’t effectively preclude unaffiliated candidates and Parties from running for office. Including unaffiliated voters in duopoly Party tallies is a strategy of systemic legitimation in that it implies choices outside of the duopoly Party system that don’t exist.

The institutional response has been to re-conjure the ‘foreign influences’ that so well supported American imperial endeavors in the past. For those short on nostalgia for the days of MAD (Mutual Assured Destruction) and genocidal slaughters, what hasn’t yet been well explained is (1) how foreign meddling prevented one hundred and sixty five million eligible voters (71%) from voting for Hillary Clinton and (2) how this external meddling differs from internal meddling in the form voter disenfranchisement and the legalized bribery that ‘motivates’ American politics.

by Rob Urie, Counterpunch |  Read more:

Images: Carlos Pacheco and Gallup

Kitty Hawk: Autonomous Flying Taxis

Autonomous flying taxis just took one big step forward to leaping off the pages of science fiction and into the real world, thanks to Google co-founder Larry Page’s Kitty Hawk.

The billionaire-backed firm has announced that it will begin the regulatory approval process required for launching its autonomous passenger-drone system in New Zealand, after conducting secret testing under the cover of another company called Zephyr Airworks.

The firm’s two-person craft, called Cora, is a 12-rotor plane-drone hybrid that can take off vertically like a drone, but then uses a propeller at the back to fly at up to 110 miles an hour for around 62 miles at a time. The all-electric Cora flies autonomously up to 914 metres (3,000ft) above ground, has a wingspan of 11 metres, and has been eight years in the making.

by Samuel Gibbs, The Guardian |  Read more:

Image: Kitty Hawk

[ed. It was only a matter of time. I hope there are private versions.]

On the Mysterious, Powerful Effects of Placebos

In 1957 psychologist Bruno Klopfer reported on the amazing case of a man he called Mr. Wright. Mr. Wright was suffering from advanced cancer of the lymph nodes. Tumors the size of oranges studded his skeleton and wound throughout his organs. He was so near death that he was more malignancy than man, his face pale on the pillow, an IV plunged into one of his stringy veins.

Some people, as they near the end of a long battle with cancer, their hair gone and their teeth loose in their sockets, are ready to exit, exhausted by the demanding treatments, by the burn of radiation and the poison of chemotherapy. But Mr. Wright, because he had a severe anemic condition, was not eligible for the treatments of the day, which were radiotherapy and nitrogen mustard. He had wasted away all on his own, without the help of cures that also kill. But his will to live, his desire to see the day, was strong, and the shadow of death that fell across his hospital bed, a dark hole into which he would soon dwindle and disappear, terrified him.

Then one day Mr. Wright—“febrile, gasping for air, completely bedridden,” according to his doctor—overheard people talking about a new cancer cure called Krebiozen, a horse serum, which was being tested at the very hospital he was in. Hope sprang up like a stalk inside him. He begged his doctor for a dose, and his doctor, although doubting the drug would help at this late stage, nevertheless loaded his syringe and took his patient’s wasted arm.

Three days passed as Mr. Wright lay quietly in his hospital bed. On the third morning after the shot of Krebiozen had been administered, his doctor returned to examine him, and an incredible thing had happened. Before the doctor arrived, Mr. Wright had swung his feet over his hospital bed and for the first time in months stood up straight on the floor, strong enough to support himself, to walk, even to stride, which he did, out of his room and down the ward to the station around which the nurses flurried. The doctor found this man who had been at death’s door now joking, flirting, cavorting. X-rays showed that the tumors had shrunk from the size of oranges to golf balls—having melted “like snowballs on a hot stove.”

No one could quite believe it, but no one could deny it either, because here was the man, once washed out but now ruddy with health and hope. Within ten days Mr. Wright was discharged from the hospital, cancer-free, and he went home to pick up where he had left off before cancer came to claim him, stepping back into his life as if slipping into a perfectly fitted suit. He was alive and loving it.

Days passed, weeks passed, and Mr. Wright remained free of malignancies. Within two months, however, reports came out in the news saying that the Krebiozen trial had concluded and the drug was worthless. Soon after that Mr. Wright’s tumors returned and he was back in the hospital, once more staring at the drain hole of death, at the shadow falling across his bed.

His doctor then did something that doctors today would never be permitted to do. He told Mr. Wright a story, a lie. The news reports, the doctor said, were wrong. Krebiozen was in fact a potent anticancer drug. Why, then, Mr. Wright wondered, had he relapsed, and so badly? Because, his doctor said, Mr. Wright had unfortunately been given an injection of the stuff from a weak batch, but the hospital was expecting a new shipment and it was guaranteed to be two times stronger than even the most potent Krebiozen to date. Mr. Wright’s doctor delayed administering anything to his patient so that his anticipation would build. After several days had passed, the doctor rolled up Mr. Wright’s sleeve; Mr. Wright offered his arm, and the doctor gave his patient a new injection—of pure water.

Again hope made an entrance. Mr. Wright let all his tumors go. Once again they shrank and disappeared until no trace of them could be found in his body, and once again he left the hospital. It’s not hard to picture him dancing his way through his days. A second remission! Mr. Wright lived for a further two months without symptoms and then, unfortunately for him, came another news report. The American Medical Association, after numerous tests on patients, issued its final verdict on Krebiozen, confidently declaring the drug to be useless. Mr. Wright’s tumors reappeared, and this time, within two days after his readmission to the hospital, he was dead.

The Pharmaceutical Factory in Our Heads

In the 1970s came the discovery of endorphins, which are opiate-like chemicals the body manufactures all on its own and which play a key role in the placebo effect, especially in cases of pain. The discovery led scientists to uncover a rich supply of nerves linking the brain to the immune system, which in turn resulted in the rise of a new branch of medicine called psychoneuroimmunology. Studies in this new medicine suggested that placebos may work to decrease pain—something they are especially good at doing—by increasing endorphins in the brain.

At the University of California, San Francisco, for example, in a 1978 double-blind experiment with young people who had recently had their wisdom teeth removed, most patients were given a placebo and reported significantly less pain. Then some of the subjects were given naloxone, a drug that is typically administered in emergency rooms in cases when a patient has overdosed on heroin or morphine. Naloxone works by blocking the opiate, thereby immediately reversing the effect of the deadly ingestion. In this study with the wisdom teeth patients, once they were given naloxone, the pain relief they had experienced as a result of the placebo suddenly vanished. Once again the young people were in pain. This outcome provided researchers with a strong suggestion as to how placebos might work. It must indeed be that they released the brain’s natural opiates—endorphins—and that as long as this release wasn’t blocked by naloxone, or by some other organic means, then these endorphins would allow us to find real relief.

Blue and Pink Pills

The form of the placebo has implications for its function. For instance, when it comes to pills, scientists have discovered that blue placebos tend to make people drowsy, whereas red or pink placebos induce alertness. In the 1970s several professors at the University of Cincinnati took 57 second-year medical students and divided them into four groups. Two groups received pink tablets and two groups blue tablets, and of the two groups receiving the same color, one group received one pill and the other group two pills. All of the tablets were inert. Thne students then listened to a one-hour lecture and after that went back to the lab to fill out forms rating their moods.

The results? The students who had received two tablets reported more intense responses than the students who had taken only one tablet. And of the students who had taken the blue tablets, 66 percent felt less alert after the lecture compared to only 26 percent of students who had taken the pink tablets. Medical anthropologist Daniel Moerman believes that the color of a capsule or a pill has a strong significance to the imbiber. Blues and greens are cool colors while reds and pinks are hot colors. A study in Texas showed that red and black capsules were ranked as strongest while white ones were weakest. “Colors are meaningful,” Moerman writes, “and these meanings can affect the outcome of medical treatment.” Blue pills make us drowsy while carmines perk us up. And large pills have more power over us than medium-sized ones, especially if they are multicolored.

The research on the size and color of pills makes one wonder if we might also be more strongly affected by pills embossed or engraved with a name: Tagamet, Venlafaxine, Zyprexa, Abilify, Concerta. Are drug companies not hoping that if they carefully and suggestively label their medicines, we will give their pills extra credence? Clearly the name matters. It is always multisyllabic and often suggests technological prowess. You cannot call a placebo Tim, for instance. The name should bring to mind test tubes and Bunsen burners with their petal-shaped flames. The name should also connote, somewhere in its utterance, the pure peace of good health, the abilities with which Abilify will endow you, the consonance of Concerta, when all the world makes solid sense.

Even more persuasive than pills, at least in the treatment of headaches, are placebo injections. A meta-analysis of a drug called Imitrex—which, when first introduced, was available only as an injection and then later as a capsule or a nasal spray—looked at 35 trials treating migraine sufferers with Imitrex versus placebo and found that, of those patients taking a placebo tablet, only 25.7 percent reported that their headache was mild or gone, compared to 32.4 percent of those treated with a placebo injection reporting relief. This may seem like a small difference, but it is statistically significant and could be expected to happen by chance only twice if the experiment were repeated a thousand times. Over and over, research has revealed that when patients are injected with an inert substance they report more pain relief than those who have simply swallowed a pill. Perhaps there is something about the needle, the press of the plunger as the supposed miracle liquid seeps below the skin and into the muscle, finding its way into the circulatory system, and at last to the wet red charm that sits within its curved cage. While a pill can be quiet, simple, its magic subtler and singular, there is drama in a shot.

Hope

Of course, none of this so far answers the question of exactly how endorphins get released in the first place. It seems to have something to do with belief, with hope, with faith. Even the smallest spark of it helps our heads to secrete chemicals so soothing that their analogues are illegal around the world. People who think they are drinking alcohol, but in fact are not, will nevertheless get tipsy. The opposite of hope is also very telling. Where it is absent, or unknown, medication sometimes fails to work. Valium, for instance, has been shown to affect a person only if he knows he is taking it.

But while there have been many studies done to predict the personality type of placebo responders, they have proven inconclusive. If only we knew! Then we would have a clear class of people to whom we could confidently feed inert substances and who could be assured of getting real relief. No such study, however, has been able to find a personality type, or rather, it would be more accurate to say that all of the studies conflict with one another. Some claim that people who respond to placebos have neurotic personality types; others claim that introverts are more likely to be fooled by placebos; while research from Britain has found that extroverts are the group most susceptible to placebos. Scientists have claimed at different times that placebo responders are both quiet and ebullient; that they have poor ego formation and superegos the size of a city; that they are judgmental as well as easily swayed; that they are trusting and skeptical. The net sum suggests that there is no definitive profile of a person likely to respond to a placebo. Everyone is a responder—maybe not all of the time but some of the time, in some situations, in great pain or fear, perhaps, or with wants so large that they outstrip the self who holds them. We do not know. The only thing we can say for sure is that 30 to 60 percent of the population can be fooled by a trick, by a sugar pill, by water, by an injection of saline or a bright pink sphere glittering in the palm.

by Lauren Slater, LitHub |  Read more:

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Costco Auto Program

Shopping for a car can be an overwhelming process.

If, say, you know you're looking for an SUV, you have to determine the brand, model, and model year you'd like, as well as the dealership you want to use, whether you'd like to buy new or used, and whether you want to buy or lease. Where do you start your research? Which sources can you trust? What's a reasonable price for a given model?

The Costco Auto Program attempts to eliminate some of that uncertainty. Costco members can use the program's website to research and compare vehicles, calculate monthly payments, and get a discount at participating dealerships. While the size of the discount varies based on the vehicle's class, brand, and model, a Costco Auto Program spokesperson told Business Insider that the average discount is over $1,000 off a vehicle's average transaction price.

And since the program uses the same customers as Costco's retail operation, it has plenty of reasons to vet dealers and salespeople so their customers don't end up feeling like they were tricked — and putting the blame on Costco.

"We're not just providing leads to dealers. We're creating a referral," Costco Auto Program senior executive Rick Borg told Business Insider.

Here's how using the Costco Auto Program is different than the average car shopping process:

1. You have to be a Costco member

This may sound obvious, but while non-members can use some of the Auto Program's research tools, you need to be a Costco member to be eligible for the discounted price.

2. Multiple strands of research are condensed into one place

One of the most difficult parts of car shopping is figuring out where to start and end your research, especially if you don't read car news and reviews for fun.

The Costco Auto Program brings reviews, safety ratings, a financial calculator, and vehicle comparison tool under one roof. While it never hurts to compare research from multiple sources, the Costco Auto Program's website gives customers a good place to start.

3. Your choice of dealerships and salespeople is limited

According to Borg, Costco works with one dealership per brand in a defined geographic area around a given Costco warehouse. And at each participating dealership, only a handful of salespeople are authorized to work with customers shopping through the Auto Program.

Borg said Costco picks dealerships based on their prices, customer satisfaction index (CSI) scores, and reputations on social media. And authorized salespeople are also evaluated based on their CSI scores and must work at their dealership for at least six months before being eligible for the program.

But the limited number of dealerships and salespeople makes things a little more difficult for customers who don't end up satisfied with the first dealership Costco recommends to them. While Borg said Costco can point customers to other participating dealerships if they don't like the first one they're sent to, they may not be geographically convenient.

4. Costco has already negotiated the price

Negotiating the price on your car can be an intimidating process. The dealership has much of the information — inventory, the dealership or salesperson's proximity to their quarterly goals, the average discount customers receive — you need to negotiate the lowest possible price.

Borg said Costco takes a holistic approach when negotiating prices with their participating dealerships, looking at national and local prices for given models, as well as the prices customers can find through other discount programs to determine the discount its members should receive. And since it has a large membership base it can funnel to selected dealers, it has more leverage than any individual shopper.

by Mark Matousek, Business Insider | Read more:
Image: Ted S. Warren/AP