America Has Gone Off the Rails. Steven Brill Sees Ways to Get It Back on Track.

According to Gallup, in the first week of January 2004 more than half of surveyed Americans were satisfied with the direction of the country. Within a few weeks, however, that number had fallen below 50 percent. It has never recovered. Since the 2008 financial crisis, it has not cracked 40 percent.

.. Brill describes a slow-motion process of perverse meritocracy in which, as one law professor tells him, “the elites have become so skilled and so hardworking that they are able to protect each other better than ever before.” Or, as Brill labels it, “Moat Nation.”

.. Brill focuses on the legal shifts and stalemates that ushered in the country’s current predicament

.. The rise of executive compensation practices linked to stock prices encouraged executives to prioritize short-term profits over long-term investments. A series of Supreme Court cases, ending with Citizens United, enabled corporate speech to play a powerful role in national politics. The growth of super PACs and lobbyists in Washington guarantees that any piece of appropriate regulation will be watered down — first in Congress and then in the implementation stage.

.. The federal government’s approach to fraudulent financial firms has shifted from the criminal prosecution of executives to the levying of fines.

..  the number of times the phrase “unintended consequences” appears in the book. Many of the legal and regulatory changes that Brill excoriates have counterintuitive beginnings. Who helped spearhead the growth of the commercial speech movement? The consumer advocate Ralph Nader, who sued the Commonwealth of Virginia to allow pharmacies to advertise drug prices. “Talk about boomerangs,”

.. the very first political action committee was created in 1943 by a labor union.

.. efforts to bring more minority members to Congress as “another reform effort that boomeranged,” because minority Democrats allied with Republicans to rewrite congressional districts and eviscerate districts held by white Democrats.

.. Brill blames the tortoise-like pace of government rule-writing on due process run amok.

.. Brill argues that interest groups have weaponized due process to guarantee gridlock.

..  In almost all of “Tailspin,” a well-intentioned liberal reform goes badly off the rails.

.. Brill never quite makes the connection between laws and norms.

.. many of the trends that Brill identifies, like political polarization, have their origins in the erosion of norms, not laws, and the real question is whether Americans can trust one another enough not to abuse less legalistic systems.

.. On this point, Steven Levitsky and Daniel Ziblatt’s “How Democracies Die” is probably more instructive.

It Took a Village to Raise Kavanaugh

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.

This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.

Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.

.. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.

.. First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation, explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.

.. Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement.

.. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”

.. Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society.

.. The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.

.. the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did.

.. Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.

.. Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.

.. The members often break down on libertarian versus conservative lines, or, as we saw in the behind the scenes jockeying recently, between social conservatives (for Amy Coney Barrett) and establishment conservatives (for Brett Kavanaugh).

 

When ‘Miss’ Meant So Much More: How One Woman Fought Alabama — And Won

June 1963. Gadsden, Ala. Mary Hamilton, 28, stood in a courtroom before a judge.

She was a black civil rights activist, arrested for nonviolent protest. And the judge was losing his patience.

The atmosphere in Gadsden that summer “was truly frightening and terrifying,” says Colin Morris, a history professor at Manhattanville College. “The Klan was highly active. On more than one occasion there had been attacks in Gadsden.”

But Hamilton wasn’t frightened. She was furious. She refused to answer the prosecutor’s questions.

“I won’t respond,” she said, “until you call me Miss Hamilton.”

It wasn’t just about an honorific. It was about respect and racial equality. Her demand was an act of defiance that would eventually bring her name before the U.S. Supreme Court and set a precedent for how witnesses are addressed in courtrooms today — with equal courtesy.

.. Mary Hamilton was constantly confusing and infuriating men in authority by standing up to their disrespect.

In Lebanon, Tenn., when a mayor visited her cell and referred to her as “Mary,” Hamilton corrected him. It was Miss Hamilton. Hamilton and Michaels recalled the moment in their oral history: “And if you don’t know how to speak to a lady,” Hamilton told the mayor, “then get out of my cell.”

At the time, throughout the ’60s, many white people — particularly in positions of authority — refused to use honorifics like “Miss,” “Mrs.” or “Mr.” to refer to black people.

.. Barbara McCaskill, an English professor at the University of Georgia, studied the narratives of black Americans and the civil rights movement. She said her own mother vividly remembered being denied the honorific “miss” as a young woman.

“Segregation was in the details as much as it was in the bold strokes,” McCaskill says. “Language is significant because language calls attention to whether or not we value the humanity of people that we are interacting with. And in segregation the idea was to remind African-Americans and people of color in general, in every possible way, that we were not equal, that we were inferior, that we were not capable. And language becomes a very powerful force to do that.”

.. Which brings us to Gadsden, Ala. In 1963, Hamilton was arrested for picketing and brought before the court for sentencing. Once again, officials refused to call her Miss Hamilton.

She refused to answer. The judge — muttering lewd comments about what he’d like to do to her if she were in his kitchen — ordered her to answer the prosecutor and apologize. But Hamilton was buoyed by rage at the judge’s dismissiveness, and by the support of the lawyer assisting her.

She refused. She was fined and sentenced to a few days in jail for contempt of court.

Her lawyers appealed the case, saying that the prosecutor and judge had denied Hamilton her constitutional rights by treating her differently from the way they treated white witnesses. Eventually her case landed before the Supreme Court in Hamilton v. Alabama.

The justices issued a summary reversal, overruling the Alabama courts without even calling for oral arguments. Their brief decision effectively said that a court could not address black witnesses differently than white ones.

The Mind Meld of Bill Gates and Steven Pinker

Mr. Gates readily acknowledged that the person he is today is not one he would have recognized when he was in his 20s and single-mindedly building Microsoft. “I was a zealot,” he said. “I didn’t believe in weekends. I didn’t believe in vacations. I knew everybody’s license plate so I knew when they were coming and going. That was my life: doing great software.”

.. Plus, you don’t want a tech company run by somebody in their 60s. At least I didn’t want to. I ended up retiring at 53.

.. But for a young man in his 20s, writing software night and day may be the best way to add to human welfare. I’d never heard of vaccines. I didn’t have any money. But the personal computer, the internet, hey, that’s what I was good at. And I enjoyed doing it every day.

.. I came across statistics that homicide rates in the Middle Ages were about 35 times what they are today in Europe. When I posted this online, I started receiving correspondence citing more examples: The rate of death in warfare has come down by a factor of 20 since 1945. Domestic violence is down. Child abuse is going down. I was sitting on all these data sets showing reductions in violence that few people were aware of that I thought ought to be better known.

.. That “things getting better” is the greatest story that no one knows.

.. there’s the idea that we can’t want something good for ourselves without wanting it for everyone.

.. What makes Papua New Guinea — where there’s no police and revenge after revenge — different from Western society is that when we give ourselves over to the law, we want it to be executed impartially. We gain stability. But if you could get your son off, of course you’ll try.

.. the proposition, Philip — which comes from Spinoza. He said those under the influence of reason desire nothing for themselves that they do not desire for all humankind. But reason is not a powerful part of human nature. Innately, we favor family over strangers, our tribe over other tribes. It’s only when we’re called upon to justify our beliefs — not consult our gut feelings, but convince others of the right way to act — that we conclude that all lives have equal value.

.. when you consider a radical change, like “Hey, let’s tear up the global trade agreements; they’re a disaster,” you’re more likely to implement it if you think things are getting worse. “Let’s tear up the treaties. Let’s try a nondemocratic approach.” Your willingness to go off the current path is much, much higher.

.. There’s a tendency in journalism and political debates to assume that it’s easy to achieve a perfect society: “Good people would do that.” The fact that we don’t means that evil people must be running the system: “Let’s throw them out and find nobler ones.” This leads to empowering charismatic despots and destroying institutions that have done a lot of good.

.. I’m sure Bill gets this all the time: “Why throw money at the developing world? They’re just going to have more babies and be just as poor.”

.. What indicator improves even faster than reduction in violence? Our distaste for violence. We’re more upset about it today. If I see someone spanking a kid — I’m stealing from Steven’s book — I might get up and say: “Hey, wait a minute!” Forty years ago, it might have been more like: “Do you want to borrow my belt?”

.. Extreme global poverty has been reduced from 90 percent 200 years ago to 10 percent today.

.. The person who invents an affordable and efficient toilet should be made a saint.

Think how much human happiness will be granted, how much human suffering eliminated. We should think quantitatively; it’s the morally enlightened way. But it’s not the way our brains evolved when we make moral evaluations.

.. One of the biggest enemies of reason is tribalism. When people subscribe to an ideology, they suck up evidence that supports their preconceptions and filter out evidence that goes against them. Contrary to the belief of most scientists that denial of climate change is an effect of scientific illiteracy, it is not at all correlated with scientific literacy. People who believe in man-made climate change don’t know any more about climate or science than those who deny it. It’s almost perfectly correlated with left-wing versus right-wing orientation

.. But I’m optimistic. I do think awareness of how things have worked is important to recreate a conservative center — that is, make us careful about what we change.

.. innovation is not viewed as an unalloyed way to improve the human condition. And that’s fair, because it’s not pure. Does social media split us into tribes in a way that’s dangerous? Does it create, even in high school social circles, a channel for bullying, or a desire to look perfect in photos?

.. There are certain things that governments are always going to do better than private innovators. Basic research, for instance.

.. PG: Name a problem we may think of as intractable that you’re optimistic about solving in the near future.

SP: War between countries. Civil wars are harder to eliminate because there are so many insurgent and militia forces. But there are only 192 countries. They could agree not to declare war on each other. I think we’re on the way.