a legitimate improvement to national security

I'm speaking here, of course, about Congress's decision to grant organizing rights to 45,000 airport screeners. Can we all agree that, of the hundreds of millions of working Americans, these people should be on the list of Top Ten Professions Who We Really Need Be Happy On The Job? I'm going to skip over the obvious reasons for this, and I'll refrain from ranting about Mitch McConnell's remarks, because what did we expect?, and same goes for Richard Burr's comically inept and insulting attempt at a soundbite, but I will say this:

Why is it so damn hard for our elected officials to just say "Collective bargaining is good. It improves operations, increases retention, and protects workers." Meanwhile, all the reassurances about what the union won't be able to do (strike, bargain for pay, etc.) don't do anything to make me feel safer. A weak union doesn't protect anyone.

I know this is well-trod ground. I think it's worth a reminder that, as with many jobs, DHS employees make sacrifices and enter into obligations as part of their work. No union has the authority or the power to curtail the TSA from doing what it needs to do in an emergency, and plenty of collective bargaining agreements contain whole sections devoted to those exceptional circumstances. Similarly, all the TSA needs to do to avoid an emergency labor problem is employ enough people and treat them well enough to ensure proper staffing, training, etc.

To my mind, this debate exposes the equally well-trod ground of how inadequate the labor standards are for DHS employees, and the shameful hypocrisy of Congress and the Bush Administration in trying to get national security on the cheap, at the expense of our safety as well as the lives of the people charged with protecting us.

Okay, enough of that.

Deborah Lipstadt, my badass hero

For the last week, I've been puzzling over an article by Frank Furedi in Spiked. Furedi argues that in the 21st century, the concept of "denial" -- in the critical sense, as in a "Holocaust denier," an "AIDS denier," or a "climate change denier" -- has become a secular replacement for heresy. The essay alternates between bold, compelling, insightful discussion of the relevant issues and a vague, thin, accusatory rhetoric that reveals a little too much about the author's agenda.

Here are the main points. I'm paraphrasing, and (in some cases) I think I'm presenting the point in a more effective manner, but anyway:

• "Those who question prevailing cultural orthodoxies are treated as immoral, evil people, and their arguments depicted as a form of secular heresy."
• Targeting denial isn't about the highly-charged emotional context of the issues (i.e. genocide, the environment, etc.), but about an intolerance towards free thinking.
• Traditional heresy involves denying an article of religious truth, but those have been supplanted by articles of historical and scientific truth.
• "Heresy-hunters" strive to follow the model of the ultimate 20th-century taboo, Holocaust denial, by constructing new taboos.
• In this way, denial becomes a "generic evil," a "free-floating blasphemy" that can apply to anything.
• Difference of opinion disappears in the context of debate, replaced by accusations of denial.
• The perceived danger of taboo opinions makes it "responsible behavior" to repress those opinions. Hence the wave of existing and proposed anti-denial laws (anti-genocide in the EU, criminalizing AIDS misinformation, etc.)
• These "denial" accusations deliberately conflate the psychological and critical definitions of "denial" in order to discredit a viewpoint, as well as the holder of that viewpoint. Being a denier is like being "in denial." So, as in the psychological case, denial is a disability that results in suppressed information and does damage to society -- which allows the people who subscribe to those articles of historical and scientific truth to justify censoring deniers.
• Moreover, it's not really about the desire to affirm those truths, but about about "moral policing."
• Finally, the secular heresy of "denial" constitutes a serious threat to freedom of speech and thought, one which outweighs the ultimately negligible positive effects of censoring taboo ideas.

On the whole, I find the arguments decent, especially the implied distinction between dismissal and debate, and the effort to point towards the resultant problems regarding free speech/censorship. I also have to reluctantly concede that I admire Furedi for wading into somewhat dangerous waters and sticking to his point, given the fact that he's essentially attacking people who try to speak for genocide victims, AIDS patients, and the health of every organism on the planet.

However, in claiming that accusations of "denial" arise from an intolerance of free thinking, Furedi shortchanges the social, political, and emotional context. People's motives as scholars and scientists are (of course) affected by what they care about and what they believe should take happen in the world. Though censorship might arise from a given situation, not wanting people to get inaccurate information about AIDS doesn't exactly describe an intolerance of free thought.

Which leads me to the article's major flaw: the lack of a critical qualitative distinction between good and bad scholarship or science. One's skill at scientific or historical research should not have any bearing on one's democratic right to free expression, nor should one's personal agenda. But these characteristics may start to explain the vehemence with which people attack revisionist Holocaust historians or industry-backed climate change skeptics. After all, bad science is bad science, and people invested in getting accurate information to the public concerning, say, epidemic disease, might be pretty invested in minimizing the influence of poorly researched, unsupportable conclusions. Again, no effect on the free speech issues, but the argument for the intrinsic value of free thinking loses some integrity when it tries to compare David Irving to Copernicus.

I prefer Deborah Lipstadt's take on this question (also from Spiked...hmm). She has no compunction about calling someone a denier, but she doesn't believe in criminalizing or persecuting genocide denial. She describes the proposed EU genocide denial laws as a "body blow to academic debate." And, though I don't want to revert to using someone's C.V. to support the validity of their claims, she does have a great deal of experience in this matter, and she pursues Holocaust deniers aggressively. But she doesn't want them in jail. because of freedom of speech, because of the need to avoid making deniers into martyrs, and because making a law against genocide-denying speech implies that we don't have the evidence to prove the truth.

I like the third reason best. She's basically saying that she doesn't want to censor deniers, she wants to beat them. Debunk their scholarship, destroy their credibility, prove that they're wrong, and let them "fade into obscurity." I can get behind that, because a) it's the right thing to do; b) it not only preserves freedom of speech, it encourages it; c) it keeps us focused on deepening our knowledge of things like genocide and pollution, thus keeping them in our minds and on our agenda; and d) it places the weight of the argument where it should be -- in the evidence.

I already noted how badass Deborah Lipstadt was, but it's worth mentioning again.

Matthew LaClair = Badass!

This is the 16-year old New Jersey high school student who recorded his history teacher telling the class, among other things, that they belong in Hell if they don't accept Jesus Christ as their savior. So, we knew he was badass from the earlier coverage, and just by definition, but I didn't realize until I looked into it further this morning the degree to which he's exposed himself by taking on this fight. And I hadn't listened to the recordings, so I didn't realize how fearlessly he confronted his teacher on the hypocrisy of a loving, merciful God that cannot tolerate dissent. "Why would a loving God give up on someone after just one lifetime?...As a parent, if your child did something wrong, would you throw them in an oven and leave them there forever?" BADASS. He should join Carlton Pearson's church.

To me, the fact that LaClair's classmates and community don't support him strengthens his claim that without the recordings he would never have persuaded the school, district, and community that Paszkiewicz was doing something wrong. I mean, the man is teaching an 11th-grade history course about the US Constitution, and he says the following:

[God] did everything in his power to make sure that you could go to heaven, so much so that he took your sins on his own body, suffered your pains for you, and he's saying, 'Please, accept me, believe.' If you reject that, you belong in hell....If you reject his gift of salvation, then you're going where you belong.''

Yeah. People are defending that. Now, to be fair, Paszkiewiscz makes one (1) feeble attempt (on the NYT recordings at least) to say that this is his belief, and he makes a couple of references to interpretation of scripture being "your prerogative," which is good. But he still presents salvation, the sacrifice of Jesus, and the condemnation of the unsaved to hell as incontrovertible facts. Not so good.

Other highlights include the penetrating distinction that "Scriptures aren't religion," by way of arguing that all Christian religions believe in one book, "The Bible -- you should be able to bring that into the classroom and read it."

Another hilarious moment: Paszkiewicz asks the class, sarcastically, if "anyone ever observed" the evolution of simple life forms to complex life forms, like it's a ridiculous notion. Then he goes on to say, sarcastically again, "You can collect some data...like the fossil record." ....hmm. Yeah, that pesky fossil record, with its overwhelming mountain of observed data supporting evolution. Oh, also comparative anatomy, molecular genetics, geographical distribution...there's some observation going on. But, damn, scientists can't prove that life spontaneously generates, and they can't repeat it in experimental conditions, so it can't be a scientific fact! Wait, whoops, that's completely wrong because they can and have. It's one thing to present the scientific argument for evolution in an unbiased manner, then express your belief in another explanation of life, but lying about what's out there is just a shameful, criminal action from any teacher, especially a public school teacher.

Also good: Paskiewicz distinguishes faith from blind belief, saying that his faith is "rooted and grounded in Scripture" because of "Prophecy," which came true. What's his example? Moses says in Genesis (right) that Israel would endure 400 years of slavery, and, lo and behold, it happened!...When? In the next book of the Bible. Not really a prophecy so much as a clunky piece of foreshadowing.

I was disappointed to see that the most aggressive response from the school district was to ban unauthorized recording in class...which, okay, that's fine, but isn't there a larger problem here? If students have to surreptitiously record their teachers in order to fix drastic Constitutional problems with the curriculum, maybe the district can do better than a memo and some teacher education. Here's some evidence that they're on the wrong track. Paszkiewicz recently compared global warming scientists to Hitler repeating a lie often enough that people believe it. The school board's lawyer reported that the board didn't investigate the report (???) because the comment wasn't religious and didn't break any kind of law.

Um. I don't know where to start with that. He didn't break a law (assuming New Jersey doesn't have a statute requiring public school teachers to represent scientific and historical truth to the best of their ability). But come on, you've got recordings of this guy endangering your school district by violating the Constitution in a class about the Constitution, and you didn't feel the need to investigate an incident wherein that same teacher discredits science some more?

Leaving aside the wildly inappropriate nature of the Hitler analogy, global warming isn't a lie -- calling it one is. Also, much as we might like to believe it, Hitler's use of the "big lie" theory is widely misinterpreted. In Mein Kampf, Hitler attributed the "big lie" strategy to a conspiracy of Jews in media, bent on convincing the German people that they lost World War I (they did). Goebbels later appropriated it for his attacks on Churchill's "Lie Factory." So, Nazi leaders obviously believed in the effectiveness of the "Big Lie," and it may seem like the "Big Lie" concept played an obvious role in Hitler's propoganda strategy, but that latter point hasn't been substantiated. So, giving Paszkiewiscz the benefit of the doubt, we'll assume that he's not implicitly associating global warming scientists with an evil conspiracy of "Big Lie"-telling Jews. Instead, we'll just assume that he's adopting the common "Big Lie" myth that surrounds Hitler, and he's ignorant of WWII/Holocaust history.

That's cool, though, it's not like he's a history teacher or anything.

Dramedy

The RIAA, once again demonstrating an unexplored capacity for willful ignorance, is now attempting a crackdown on mixtapes. Someone needs to explain to them that, from time to time, social, technological, or cultural developments by their very existence simply nullify certain applications of the law. Traditional copyright is not going to work for digital content, and people who deal with these issues as a matter of course discovered that a long time ago. But the music industry, despite its ostensible involvement in creating and defining the cultural vanguard, spends most of its time studying how to cash in on existing trends, instead of studying (or attempting to shape) the culture of subsequent consumer generations. So instead of reading the signs and designing a delivery system that would protect its assets, the music industry followed a "wait and sue" policy (I came up with that independently -- kind of disappointing to find out it's a widely-used phrase).

That was dumb.

For example, a careful (or even superficial) study of mixtape consumers would immediately reveal what the Times article points out: "part of the fun involves hearing rappers remake one another's songs and respond to one another's taunts; a great mixtape captures the controlled chaos that hiphop thrives on." Mixtapes have the potential to be incredibly lucrative, as any of those guys selling $5 CDs on the street can tell you. But, obsessed with shoring up a doomed section of copyright law, the RIAA decided to arrest DJ Drama. It's not going to work, it's not a deterrent.

Imagine how much the Big Four/Five would have made directly on online sales if they didn't have to enter expensive contracts with mediators like Apple et al. This will turn out just the same. The record companies have already missed the boat on mixtapes, and if/when they do figure out a way to enter the real mixtape market (DJ Clue doesn't count), they will likely do so in compromised, water-down fashion that won't make them much money.

By that time listeners will have moved on to someone or something else -- which the RIAA will immediately try to sue, or arrest.

Badass pt.3

Hotel workers are three days into a hunger strike in the Century corridor at LAX. That is pretty badass, not least because (according to my sources on the ground) they're staged directly outside the Westin LAX restaurant. So guests eating breakfast are looking right out at them, and employees from the hotel are coming out on breaks to support the strikers.

LA recently extended its 1997 minimun wage law to cover the Century corridor by the airport, an unusual and somewhat controversial legislative move. UNITE HERE Local 11 fought hard to get the law passed, and the hotel owners/operators and other business will likely mount a referendum challenge. This hunger strike emphasizes the crying need to enforce that law, and also the workers' need for a seat at the table with airport hotel employers.

I don't have much commentary here, except to call attention to the new ground broken by this minimum wage extension. There's not much legal justification for mandating wages in the private sector for a particular geographic area or industry, though it isn't (in California) specifically prohibited. There are certainly economic and moral arguments for implimenting as wide-ranging a living wage as possible, but the legal dimensions remain murky.

My favorite moment in the press coverage:

"This is discriminating against 12 hotels in a very small part of the city," says Harvey Englander, a lobby consultant to the Los Angeles Hotel Association.

Proponents claim that the ordinance is justified because the airport generates the business for these hotels. But the city's "Staples arena generates business for downtown hotels," counters Mr. Englander. "Does that mean City Council should come in and set their wages and benefits?"

He said it, not us.

this week in the n-word...

Jesse Jackson makes a fool of himself again (by the way, I'd originally come up with an individual link for every word in that sentence, but I ended up needing to split two of them in half to accommodate all the links, so I decided I should scrap it for being too hard to navigate).

Putting aside the bizarreness of the priorities here, and the general distastefulness of straining to politicize this issue, can Jesse Jackson et al truly be claiming the word "nigger" as "unprotected" by the First Amendment? Really, honestly? Even if you grant the existence of hate speech, and grant it an exception to the Constitution, and grant the word "nigger" a place in the hate speech lexicon, can there be any way to construe it as unprotected without context? Chaplinsky set the bar in this regard, outlining a First Amendment exemption for "fighting words," or words that could incite an immediate breach of the peace. Since then (1942) other cases (R.A.V., Doe v. Michigan) have expanded and qualified how the law ought to view these kinds of exemptions, but in every instance the context plays a fundamental, determining role. If Jesse Jackson actually attempted a legal argument for "nigger" -- the word alone, isolated from other words and its usage context -- as unprotected "hate speech," I imagine he would end up completely buried by the mountains of contradictory evidence. Hell, you could probably win the other side of that case using That Nigger's Crazy (Richar Pryor, 1974) alone.

One last thing on Jesse Jackson. Think about the last, say, 20 times you've heard the word "nigger" used in some sort of public context, or in some artifact intended for public consumption. I'd be shocked if it occurred in anything besides a) a hiphop song, b) a comedy routine (that includes Richards, despite him being profoundly unfunny), c) a journalistic piece on the topic (though you'd be hard pressed to find the word itself, unfortunately), or d) some form of white-pride bigotry on a short-range AM talkshow or a website. With the exception of the last one, which people in the "entertainment industry" have virtually no control over, can you think of a single instance that would meet any of the requirements of an exemption? Me neither. This is a waste of time, and each time Rev. Jackson does something like this, it makes me feel less honored by having marched with him various times.

If you really want to prevent a breach of the peace, take away DR Period's MPC sampler. I've barely even been in a fight, and the "Ante Up" remix makes me want to yap fools.

There's another entry to go with this, on John Ridley's Esquire "Manifesto," but that'll have to wait till tomorrow.

which implies...

Chicago's new retail living wage law is another kick in the pants for Walmart & other big-box stores. It's especially effective because it challenges those stores to live up to their assertions -- i.e. big-box development supports local economies and creates quality job opportunities. The fact that Walmart, Target et al see this legislation as a significant barrier to store development demonstrates clearly that poverty wages & benefits are part of their business plan. Their low prices (and enormous profits) depend on extremely low labor standards both here and overseas, and these companies remain completely unwilling to compromise on either side.

When John Simley, Walmart's spokesperson, argues that this legislation "means that Chicago is closed to business,” that's what he's saying. A more honest statement would be: "Chicago's closed to our exploitative, damaging business model."

The Brennan Center has detailed information on the ordinance, including the actual language.

why Prop 82 went down.

The failure of Prop 82 to pass in California this past Tuesday was the result of a set of suckily converging factors. Had it passed, Prop 82 would have funded universal pre-school for every four-year-old in California through an income tax increase on the state’s wealthiest one percent.

It got creamed, though. Here are a few of the reasons why:

1. Following years of questionable ballot initiatives, and a completely unnecessary and costly special election last November, Californians have developed a deep, lovingly nurtured grudge against the propositions in general. More and more voters simply vote no on every proposition in an effort to discourage people from bringing them to the ballot. I don't agree entirely with that philosophy, but there's no doubt that it's an inherently flawed system that's getting worse as more people with money and agendas enter the fray. Prop 82 was one of the genuinely good laws that, unfortunately, became a casualty of that legitimate resentment.
2. Rob Reiner has a reputation as a politically unsophisticated Hollywood liberal meddler. I’m not convinced that reputation is really deserved. He’s got a niche, just like Harry Belafonte and Charlton Heston. But the opposition used every opportunity it could to refer to Prop 82 as " the Reiner Act," until it started to seem like he was hijacking the legislature.
3. Prop 82 was billed not as an increased funding initiative for preschool programs, but as a “universal” preschool program. That opened it up to the same familiar barrage of attacks that greets all proposals dealing with universal coverage of any kind: handouts to the middle class, failing to focus resources on the most needy, threatening private providers, etc.
4. This proposition involved taxing rich people, for no reason save their income. Good night.

This all sucks, because like I said it was a good law. It would have affected less than 1% of California taxpayers. It addressed the critical issues in the preschool crisis (teacher training, school construction, underserved areas). And it is a crisis, which our electeds, unlike in other states around the country, were completely dragging their feet on -- so it's actually a fairly legitimate use of the ballot initiative. I'm sure it'll be pursued in Sacramento now.

One last (obvious) thing: Voters seem to feel that pre-school, unlike kindergarten, is not worthy of public funding to make it universal – despite the fairly indisputable evidence that pre-school leads to better reading skills, lower dropout rates, higher incidence of matriculation, decreased crime, etc. It matters, and like kindergarten, pre-school represents a critical social investment that affects every member of any community. That’s why most industrialized countries have universal public preschools as well as universal public K-12 (or equivalent).

But not the U.S. Instead, preschool, like health insurance, college education, and affordable housing, has become a luxury item reserved for folks with money.

I have confidence that eventually, California will follow Illinois, Florida, Oklahoma, and Georgia in providing universal preschool. And I hope it'll be through legislation, so the Gap CEO Don Fisher and his crony all-star team can spend more energy finding tax loopholes and less hiring actors to play gentle, pragmatic, authoritative school principles (ethnic minorities preferred).

RIP Norm Leonard...

In the vein of people whose death I missed because reading the Obit section depresses me almost as much as the Fashion section, I wanted to mark the passing of Norm Leonard. Over the last few months I've been having this conversation:

Some guy: So, you're going to law school?
Me: Yeah, I think so.
Some guy: What kind of law do you want to practice?
Me: I'm not sure I actually want to practice law, but...
Some guy: Then why are you going?
Me: Well, there's a lot of other things you can do with a law degree, but I don't know...I might practice law. If I did, it'd be, like, labor law or law directed towards social justice.
Some guy: You mean, like A Civil Action?
Me: No.

Well, if I did practice law, Norm Leonard would be the blueprint to follow. I'll link to the LA Times and SF Chronicle obits.

Here's the short summary of his work, from the Chronicle:

Mr. Leonard's cases included his 1954 defense of Harry Bridges before the U.S. Supreme Court, in which he successfully got the labor leader's perjury conviction overturned. Other cases included the defense of activists who picketed in spring 1964 at the Sheraton-Palace Hotel to protest a whites-only hiring practice; the defense of UC Berkeley students during the fall 1964 Free Speech Movement; conscientious objectors during the Vietnam War; and the representation of people subpoenaed before the House Un-American Activities Committee hearings for alleged Communist Party activity.

I had the good fortune to work for three months at Leonard Carder LLP, Bay Area firm started by Norm Leonard and his partner Bill Carder. I even attended a holiday lunch with Mr. Leonard in 2004, where he spoke forcefully about the importance of carrying on the work. His colleagues at the firm were an inspiration to me, and helped show me what could be done with a legal education. So, if I do end up practicing law (and again, I don't know if it's likely or not), it'll be due to that as much as anything.

Glad I got the opportunity to see him in person.

"it's unbelievable..."

Man.

This is a huge settlement, both in financial terms and in terms of its impact on future litigation. Not only did Bridgeport win a high-profile, lucrative sampling case in a what has become murky territory for the law, but they actually got the album pulled from shelves and the radio.

A number of things entertain me about this. Where the RIAA is insanely vigilant against piracy, they regularly appear on record and in amicus briefs in opposition to restrictive sampling law. And now we see why. I don't know Ready to Die's current sales volume, but imagine if this happened to the Blueprint or College Dropout. Pulled off the shelves and ITunes for sampling violation? Damn. Of course, it wouldn't happen to those artists because the modern-day sample climate in mainstream hiphop is incredibly paranoid, especially since the 2004 ruling I linked to above, but breakout hits from lesser-known (and less cautious) labels often emerge from the underground, and those're the people who don't have the budget to clear the samples, but could be seriously exposed in a situation like this.

I really want to know how they made this case, considering that the samples would be pretty hard to recognize and identify for your average jury. Maybe Bridgeport music hired Questlove as a jury consultant.

Anyway, this quote piqued my interest (from the Tennessean) .

"We're glad the jury listened very closely to the evidence and found appropriately for Westbound and Bridgeport."

I'm trying to imagine prosecution: "So, here, you can clearly hear a half-second of the guitar lick, right before Biggie says 'I put the 12 gauge to your brain/Make your shit splatter.' Listen very closely to this evidence."

But of course, there was probably never any contention over whether the sample was used, but rather whether the sample falls under fair use guidelines. I think it does, but obviously the jury was following the 2004 ruling that even one second of recorded material, regardless of use, should be actionable. For what it's worth, there's no question in my mind that the fair use doctrine applies here. After all, we're not talking about "Ice, Ice Baby."

P.S. I'd be remiss if I didn't link to Jesse Kriss's History of Sampling 1.2, a graphic representation of sampling's history. It requires some serious Javascript but it is awesome.

long time coming...

David Irving's been sentenced to three years in Austrian prison, for holocaust denial.

In some ways, this is terrific, because one of the first things that comes to mind when you hear about his brand of disgusting, irresponsible scholarship is: "there oughta be a law against that."

In Austria (and eight other European countries), there is.

So in my heart, I hope he serves every day and I hope it's awful.

But in my head, I wonder about whether this is a fair or appropriate use of the criminal justice system.

Bad scholarship shouldn't be illegal, nor should being an unrepentant bigot.

Scholarship that meets the legal standards of inciteful hate speech or libel should be illegal, and it is.

I haven't read too much of Irving's material, but I've read excerpts, and while there's no doubt he's a holocaust denier (which in my book puts him just below oil-company lawyers and Fred Phelps in the seventh ring of hell), I don't know whether his writings ought to classify him as a criminal. Obviously, in Austria and Germany the legislatures feel that the damage caused by Holocaust denial is significant enough to represent a threat to freedom, health, or safety. Or, at least, they perceived that threat when the laws were passed.

I have no trouble seeing the damage caused by holocaust denial, just as I have no trouble seeing the damage caused by expressions of racial or ethnic prejudice. These actions present a threat to the psychological health of individuals and their communities, as well as a threat to the integrity of current ideas and the historical record. But that's a risk inherent to the preservation of free speech. Without demonstrating a clear and present danger to freedom, health, security, etc. (not manufacturing one, as the Bush administration did with the Patriot Act), the anti-Holocaust denial laws do not seem justified.

Irving's nemesis, Deborah Lipstadt, agrees that the free speech concern should take precedent. But she manages a nice dig at the end of the article, which I think is warranted considering what he put her through.

Nothing is served by having David Irving in a jail cell, except that he has become an international news issue. Let him go home and let him continue talking to six people in a basement. Let him fade into obscurity where he belongs.

Ice cold!!

I'll change my name to Waspy McKillThoseGuys

That is, if I want to get on a jury around here.

A prosecutor revealed last week that, apparently, it may have been standard practice to exclude Jews and black women from juries on cases involving capital punishment. Your first question might be:

"Yo, that sounds a little multiculturally questionable, but if the effective purpose of jury selection is to give both sides an equal shot at building a receptive jury, how come it's wrong for prosecutors to challenge jurors they think are likely to sympathize with the defense?"

Well, I hope that's not your first question. Because in the courtroom, like in the classroom, workplace, and lunch counter, discrimination based on race or religion is (at least nominally) prohibited by law. And in all of these arenas it's often tough to provide evidence of discrimination, so explicit public testimony from a prosecutor makes a nice change.

Needless to say, the issue has created an enormous amount of turmoil. But there's one question which hasn't been widely addressed, as far as I can see. I won't speak on black women, but are Jews actually less likely to support the death penalty? From the extensive public opinion research I've done so far (to my foreign readership, that's pronounced "Google"), Jews seem to be roughly in line with national trends on capital punishment. I wish I could say different of my people, but hell, it's not like that's a first for me.

So I wondered why prosecutors would stick with this formula if the polls don't bear it out. Geographical difference undoubtedly affect jury selection techniques. Also, it may be that the strength of opinion (i.e. how much they care) makes more of a difference than the basic for/against.

Anybody out there know more about this? Hit me with some comments.

i can't escape

I know people are sick of reading about this damn corporation, but they're just getting their ass kicked so hard that my manhood requires me to post about it.

Walmart paid $11 million today to settle an impending civil immigration case involving the use of "illegal" immigrant workers. This was a no-brainer, since Walmart has been the subject of a four-year federal investigation for using the workers in the first place, not paying them or covering their injury insurance, and...wait for it...LOCKING THEM INSIDE THE STORES DURING THE NIGHT-SHIFT. This is actually a more common practice than you'd think, but the Wal-Mart suit helped bring this hazardous and degrading "anti-theft technique" to light.

As always, though, when Walmart loses it tends to still win. In this case, the $11 million settlement is the largest civil immigration settlement to date, but Wal-mart avoided any criminal charges on the issue.

Eh. Regardless, this settlement demonstrates again why the legal battle against Wal-Mart will form such a crucial part of the overall Wal-Mart campaign. We need a sea change in public perception of Wal-Mart, a wholesale recognition and condemnation of the enormous gap between what America's largest employer preaches and what it practices. High profile suits, while of course providing justice for Wal-Mart's victims, also bring the continuing injustices -- and our willing dismissal of them -- into stark relief. So even when cases like this don't present us with a complete win, they set the framework for an ongoing fight and bring us a few steps closer to the inevitable reckoning.

So to speak. I enjoy talking about the Wal-Mart campaign in Messianic terms.

Walmart breathes a sigh of relief

While "we," collectively, are still most definitely coming for their ass, it will probably be a little while before I enter that fight myself. Instead, I'll be helping these guys in their fight for decent jobs and respect at work.

Yup, starting at the end of this month I'll be re-joining my friends at UNITE HERE as a boycott coordinator in the Bay Area. I'm sad to leave Leonard Carder, but it was time for me to stop working for the people's law firm and start working for the people directly.

Which isn't to say that Wal-mart doesn't need to get their show bumrushed. (help with the reference for my mom, and josh).

For one thing, they're arguing that the enormous sexual discrimination suit against them cannot be adjudicated nationally because it will violate their constitutional right to defend each individual claim. Excuse me while I vomit into my shoes. First of all, they're wrong. If this constitutional protection applied to class actions then they wouldn't exist, since class actions are specifically intended, where issues of common law and fact apply to a large group, to avoid adjudication of all the individual claims. Wal-mart, having failed to prevent class certification, is simply attacking it from another angle. And they will lose.

However, that doesn't mean they'll necessarily lose the case. Since Wal-Mart's promotion system is unregulated and informal, proving discrimination in promotions will be more difficult for the plaintiffs. But Wal-Mart women will get justice one way or another.

Anyway, wish me luck taking on the hotels. And thanks for all the recent encouragement. Keep on reading!

we win

We won class certification on the Best Buy case this morning. I worked on this case for about five weeks, reading all their material, preparing summaries, studying the arguments, and eventually putting it all together for filing -- so I had some personal stake. The real winners, of course, are the 900 Best Buy assistant managers in California who'll now get their day in court.

We had a dumptruck full of legal arguments as to why assistant managers were improperly classified as exempt workers (and thus required to work overtime without compensation), and my job was to take those arguments and match them with the evidence gathered during discovery to produce a credible, substantiated claim. I know that sounds dry, but it makes a lot of difference.

In fact, if I'm being honest, I don't think the evidence was unequivocally on our side. The opposition's argument, that 900 people in dozens of different stores could not possibly perform the exact same tasks in the same proportion, had a lot of merit. Now I'm all for slapping Best Buy with a class action lawsuit and kicking them around a little, especially if it builds precedent for future class-actions against big-box retail, but I'm not entirely sure that class certification makes sense for this case. Bear in mind, I don't have much experience on this topic, so I'll defer to the judge, but I'm just saying that it seems to me like it could have easily gone the other way. This ruling wasn't a sure thing. The truth is we probably won in large part because we put the best case together, and the other side did some stupid stuff that hurt them throughout.

Which, incidentally, makes me all the more proud, because I know that the force of our arguments carried through despite evidentiary inconsistencies, and my research was feeding into that directly.

Poking some holes in a big retail chain felt good.
Yup. I'll have some more of that.

the blogoshield

Sometime this week a Superior Court judge in Santa Clara will rule on whether California's Shield Law -- which protects journalists from being held in contempt for refusing to honor a subpoena of unpublished information, like sources -- applies to blog journalists.

A few bloggers published some information about unreleased Apple products and are now being sued for the sources who may have leaked the information.

Blah blah, I could care less about Apple's guarded secrets ("it's another, smaller, weirder version of the iPod!!!"), but obviously this case matters in the current media climate, where web logs have emerged as an unrivaled source for hidden news and investigative journalism. So, denying them journalistic protection would constitute a serious threat to the principles of free press.

See, here in California we decided that the protected existence of free press was more critical to the health and welfare of our democracy and our society than the ability of courts to successfully subpoena unpublished notes and sources. It's something of an arbitrary trade-off, but the expectation is that journalists will use that protection to make sure the public receives an accurate and balanced picture of the world in which they live. The Shield Law protects a journalist, and not a fence for stolen goods, because society and its lawmakers have deemed the information worth protecting in the case of the former and not the latter.

People don't consider bloggers journalists because lots of them are crackpots. Unfortunately, so are lots of "legitimate" journalists who receive protection from the Shield law simply because they're employed by something that at least refers to itself as a news-gathering organization. But the Shield Law covers any "publisher, editor, reporter, or other person connected with or employed unpon a newspaper, magazine, or other periodical publication, or by a press association or wire service," as well as any "radio or television news reporter or other person connected with or employed by a radio or television station." There's nothing here that explicitly exempts crackpots, bad journalists, or even one-person self-published operations.

Another faulty assumption at work here is that since the technology opens up "journalism" to anyone, the bloggers' credibility and integrity must unavoidably suffer. This is also unsupported, and what's more, if credibility and integrity were at issue in the Shield law, then it would simply explode from subjectivity. Not to mention the fact that "journalism," as defined as the periodic public dispersal of gathered information, has always been open to anyone.

So, it's up to the court to figure out whether blogs fit the tradition mold of news-gathering organizations. The Chronicle article suggests that one criterion might be the exercise of editorial control, though that seems a little vague to me. Perhaps the assumption here is that editors are the people who intervene on the public's behalf, ensuring the accuracy and balance of the information. Maybe I need to learn more about this, but unless news editors sign some contract with the FCC to check their sources, I don't see why they would qualify as gatekeepers of journalistic integrity.

It's probably worth noting that the trade-off I'm describing is theoretical, and won't likely be the main bone of contention in the Apple case. The judge seems poised to either rule against the Shield Law itself, position this case as one of the allowable exceptions to it, or decide that it does not apply to blogs. If he chooses the third option, simple "reporter's privilege" will not help the bloggers because their evidence certainly goes to the heart of the matter. I dunno.

I personally am not likely to be sued for my sources anytime soon. I'd have to be, y'know, a journalist for that to happen. If it does, though, the detailed legal argument above will, I'm confident, provide me with a blogoShield so strong it'll make our missile defense system look like oh wait never mind.

arnold gets his ass beat by a bunch of girls

More or less.

For 10 years members of the California Nurses Association -- who are incredible and will stomp you into the dirt if you fuck with them -- lobbied for a nurse-to-patient staffing ratio in California hospitals, and in January of last year they won. For every six patients, one nurse. This was under our Totally-Recalled former Gov. Gray Davis. Then Schwartzenegger came in and used an executive order to implement emergency regulation, effectively preventing the ratio from being enforced, as well as guaranteeing that it would not drop to 5:1 in January 2005 as expected. It didn't help that Schwartzenegger publicly reffered to nurses as "special interests" while dismissing them. Oakland Children's Hospital Nurse Martha Kuhl told Newsweek: "I spent my day treating kids with cancer. I guess you could call that my special interest."
SNAP!

So the CNA sued, and for the last two months they have been targeting Schwartzenegger in force. Last Friday, Judge Judy Holzer Hersher issued an injunction against the emergency regulation, and told Arnold that instead of appealing he should just go sit in the back of the class and babble incoherently about steroids like an idiot. It's possible I was reading between the lines a little there.

Three significant things:

1) Patients and nurses are safer. More staff means less overworked nurses, better hospital security, safer medical procedures, etc. Incidentally, less overworked nurses means less turnover, so the sustainability of the job may begin to alleviate current nursing shortages.

2) This union knows how to put a militant legislative campaign together. There are all kinds of lessons here, including effective public targeting and an excellent message campaign.

3) Schwartzenegger is getting weaker. His efforts to subvert the legislature are now pissing off plenty of folks besides Sacramento lawmakers. Groups like the CNA are becoming a backbone in what will be a difficult effort to unseat this guy in November. Nurses, firefighters, teachers -- they can sway California pretty hard when they want to, especially when they coordinate a sophisticated media campaign.

I'm dying to see this guy eat it, so the topic of him eating it will likely come up again on the New Plastic Weblog.

Don't eff with the CNA.

put down your pencil, dumbass

also, wish me luck because i'm taking the LSAT tomorrow and my test-taking prowess peaked during the 5th-grade Santa Clara County Spelling Bee.

people who are not my valentine include tom delay

On the class action front (see previous post), a little more evidence that the bill is designed to promote business interests. Though class actions in federal courts would still be tried on the merits of applicable state law, Senate Republicans refuse to consider an amendment that would allow federal judges to pick one state law and apply it if multiple state laws conflict. This means far fewer class actions would be dismissed or sent back to state courts – in other words, they’d still actually get heard under the new law. The GOP won’t tolerate this amendment because their real aim isn’t to reform class-action law or reduce the “economic pressure” it allegedly places on consumers – they’re trying to use this legislation to immunize their business allies against class-action suits, and (in broader terms) against public accountability.

It's gonna pass both pretty easily, though.

a little class warfare

As I write this, the Senate is debating the Class Action Fairness Act, which is a GOP-backed attempt to federalize interstate class-action lawsuits (i.e. divert them to federal courts, as opposed to the state courts where they’re usually tried). My initial reaction to the bill was, as you’d imagine, fairly negative…as the guy on the treadmill next to me at the gym can attest. Not for the first time, I referred to Trent Lott as an “assface clone” out loud in public.

And this bill does suck. The National Association of Manufacturors is lobbying hard for it, as are the other major business associations. Why? They say that federal courts carry the appropriate jurisdiction over lawsuits involving multiple states, and that current class-action laws allow plaintiffs to “shop” for the most friendly state in which to file for class certification. According to business, forum shopping undermines those critical jurisdictional authorities. Businesses also regularly settle class actions out of court, which can be expensive in large class-action suits. NAM argues that, in addition to the constitutional angle, the current system is bad for consumers and business alike. Tort litigation, much of it frivolous, costs American business hundreds of billions of dollars, raising the cost of services like healthcare and insurance, and thus raising prices on undeserving consumers.

I find this argument to be strong, well-crafted, and completely fucking false. First of all, the real reason they want to federalize interstate class-actions is because federal courts are much less likely to grant class certification than state courts. They’re overburdened, for one thing, which makes them likely to send cases back to the states or deny class certification due to conflicting state laws. We have to keep in mind that the consumer protection laws, wage and hour laws, and anti-discrimination laws under which most class-action suits are brought vary from state-to-state -- and it's the state laws that govern what constitutes a class, as well as the merits of the case. But conflicts between, say, California’s pioneering consumer protection laws and Nevada’s weaker ones should not prevent a company operating in both states from being held accountable by its consumers. In addition, as Public Citizen points out, federal courts traditionally rule more stringently on whether common issues predominate over individual issues (the central question in class certification), and federal judges tend to apply state law conservatively, since it’s outside their scope. All these factors make the Class Action Fairness Act a decidedly business-friendly piece of legislation.

Which, presumably, is why my fearless sellout of a senator (Diane Feinstein) is supporting it – though she claims it’s so that California consumers won’t get screwed when interstate class actions are tried in less-protected states. Of course, giving it to the federal courts is the best way to insure that California's consumer-protection laws (not to mention employment laws, environmental laws, etc.) get thrown out the window.

But here’s the real kicker, and the reason why I think this should be interesting to you, instead of just me. Interstate class action lawsuits are the absolute backbone of the labor movement’s legal war against corporate employers. The UFCW is great and all, but Dukes v. Wal-Mart was the first real blow in the national war against big-box retail employers. Class-action presents not only a credible legal threat, but a remarkable organizing opportunity. For example.

We need a strong, thriving class-action system to protect us as workers, parents, and breathing people in this country. But believe me, we're also gonna need it for that good ol' class war.

Pun intended.