Beyond Utopophobia

The newest issue of The Good Society has been released, with a symposium my friend Steven Maloney and I put together on epistemic proceduralism. It features contributions by James Bohman, Corey Brettschneider, Noëlle McAfee, and Robert Talisse and Michael Harbour.  The ‘utopophobia’ in the title comes from David Estlund’s book Democratic Authority, which invokes epistemic grounds in defense of democratic legitimacy: because democratic procedures get things right more often then competing regimes, the decisions they make are legitimate. This puts Estlund in the company of contemporary epistemic liberals like Cheryl Misak and Robert Talisse.  Contrary to Rawlsian liberalism’s distaste for substantive epistemic and normative questions, the epistemic liberals suggest that we ought not to fear public deliberation and contestation about first principles, end-states, and matters of fundamental concern.

Steve and I also contributed a paper, “Foresight, Epistemic Reliability, and the Systematic Underestimation of Risk,” in which we struggle with democracy’s capacity to foresee ‘regime-busting’ cataclysms like war, famine, natural disasters, or economic shocks and either prevent them or prepare for them adequately. As the title suggests, we believe that democratic polities systematically underestimate such risks, at their own peril.

Check it out!


I understand why folks do retrospective blog posts and best-of lists in early December, and I certainly benefit from it as I’m thinking about Christmas gifts, but it seems to violate the spirit of the list or retrospective itself to start before the year or decade is done.  If this is the *only* lesson that we learn from Mutallab’s attempted attack on Northwest Airlines Flight 253, I’ll be happy: just because you’re going on vacation for the last few weeks of the year doesn’t mean the year is over. Having safely escaped 2009 and the whole ‘Naughty Aughts’ decade, here are my reflections, predictions, and lists:

Trend for the past decade: The Blog

Domestically, this was the decade of the blog. Like many Americans, I started the decade accessing the internet through AOL via a phone line and a modem: today I don’t even have a landline and my cell phone gets e-mail. Whether it was terrorism,  the Fuehrer principle, sorry, theory of the unitary executive in the White House, the dual wars in Afghanistan and Iraq, America’s first black president, or the almost zero economic growth we experienced this decade, the place where most of us went for more information was the internet, and specifically to that mix of news and opinion that was pioneered on cable news networks but found its home here in the blogosphere.

Of course, that’s a pretty narrow-minded view of what’s been going on: the blog has primarily been revolutionary for, well, bloggers, and the journalists who’ve been losing their jobs to folks who’re willing to do the work for free. The biggest trends are largely not domestic American trends at all:

Internationally, I think the big economic story was China, which succeeded in achieving tremendous economic gains for the least advantaged through trade liberalization. Since the end of the Cultural Revolution, China has lifted HALF A BILLION people out of absolute poverty. In this decade, it managed to befriend its biggest competitor through the simple expedient of loaning us 3/4 of a trillion dollars. As a consequence, it’s true, relative inequality has exploded. For my part, I spent the decade deciding that trading absolute poverty for relative poverty was actually a good deal.

On the international political scene, I think Iran steals the cake, though this presumes, falsely,  that our wars in Iraq and Afghanistan are not international political stories closely tied to the troubles of the nation stuck between them. The Green Revolution in Iran will overturn the government there, whether it happens this year or in five years. Watching the Twitter feeds of Iranian dissidents made me feel like Immanuel Kant listening to reports of the French Revolution: “a wishful participation that borders closely on enthusiasm.” Details aside, it’s an unbeatable lesson in what Arendt called “the elementary grammar of political action.”

Trend for the coming decade: Lowered Expectations

I predict that Americans will lower their expectations in the Teens. Basically, a bastardized version of the ‘Small is Beautiful‘ movement will finally gain mainstream status. The new normal will be a lower trend line for growth, higher taxes, higher savings, and risk aversion. I expect some counter-cyclical grandiosity, but I think in general we’ll learn to live with less, and even the rich will come to disdain conspicuous consumption or else meet with the derision of their fellows. Simplicity will be in style.  The fads that remain will continue to surround expensive and compact electronics like the iPhone or Kindle.

I think these lowered expectations will have cultural implications as well: just as we had a bit of a letdown when the world didn’t end as the millennium came to a close, we’re going to be busy realizing that a black president won’t save us from ourselves or eliminate racism, and that there’s no easy solution to the messes we’ve made. Hopefully we’ll buckle down and work at paying back our parents’ debts. More Americans will ‘settle’ for second-tier cities rather than flocking to New York or Los Angeles or Chicago. I predict we’ll have more kids (which is consumption of a different sort) and that there will be another demographic bulge to rival the Baby Boomers from the children born over the next decade.

What’s the 21st Century going to be like? Slower and Hotter

As the Financial Times has recently pointed out, we rarely realize the themes of a century during its first decade: whether it’s World War I starting in 1914, or Napoleon’s downfall in 1814, the events that end up defining a century’s character for historians tend to occur in the century’s ‘adolescence.’ So I don’t think this will be a terror century just because the US finally realized how devastating domestic attacks on civilians by foreign nationals can be in 2001. Terrorism is a thoroughly 20th century problem, but like knives and forks, some things don’t go away when their time is past.

If anything, I think this century is most likely to be defined by two factors: the environment and peak oil. The fact that we still don’t have a functioning international carbon regulation regime suggests that there’s plenty of time to make that the crowning achievement of the next decade, and fighting the fraud that’s likely to emerge from a carbon cap trading system is going to take us a bunch more decades still. Then we’ll have to deal with the hangover from the last fifty years of carbon emissions.

Peak oil itself would just spell the loss of the standards of growth and development that characterized the post-war Anglo-American experience, and the post-Cultural Revolution experience in China. Combined with the growth of communications technologies, however, I think we might see a set of competing trends around geographic decentralization and information centralization, a la Google. Why send people to interact by expensive & polluting aeroplane when you can video teleconference or communicate via wiki? On the other hand, the physical goods that still satisfy our biggest needs will be in increasingly short supply: we’ll compete with our cars and trucks for calories, we’ll find that we’ll make do with less space in order to live close to city centers, and we’ll make do with less medicine and health care.

At the same time, I don’t think peak oil will significantly effect international trade: the really inefficient transportation is the one-person gas guzzling car. A container ship is still the best way to get goods from low labor cost countries to high labor cost countries, so I don’t expect a re-industrialization of the first world or a major sectoral shift towards manual labor. The benefits of education (and greater and greater specialization) will only increase, with the attendant inequalities and impoverishment of those who aren’t the recipients of educational largesses by the state or rich families. So China, Brazil, Russia, and India will continue to decouple their economies from the growth of the first world, even as they continue to supply many of our needs.

I’m well aware of the poor track record of futurists, so if this turns out to be the century that we perfect immortality and the Alpha Centauris finally show up to say, “Hi,” I’ll be embarrassed, but those sorts of mistakes are par for the course.

Best Political Philosophy:

The folks at Crooked Timber gave me much to chew on a few weeks ago, but here’s my (unordered) list:

  • Thomas Pogge World Poverty and Human Rights
  • Martha Nussbaum Frontiers of Justice
  • Amartya Sen The Idea of Justice
  • Iris Marion Young Inclusion and Democracy
  • Sheldon Wolin Democracy Incorporated
  • Claude Lefort Complications
  • Stephen Breyer Active Liberty
  • Phillip Petit A Theory of Freedom
  • Diana Mutz Hearing the Other Side
  • David Estlund Democratic Authority
  • Charles Taylor A Secular Age

Best Films and Television

A person could do worse than just read through the Slate Interactive List or the Metacritic list and add things to their Netflix queue, but here’s my personal short list for true greatness:

  • Pan’s Labyrinth
  • Up (really, everything by Pixar, but especially Up)
  • 25th Hour
  • The Road (absolutely destroys the post-apocalyptic genre: “Rose is a rose is a rose is a rose“)

Jon Stewart ruled late night, but this was a decade of serial narratives on television. This is a highly contested space, and most peoples preferences are closely tied to their class and background, so I’ll just say that, for my part, I think the best of these were:

  • The Wire
  • Dexter
  • The West Wing
  • Six Feet Under
  • Lost

Some other best-of lists: io9’s 20 Best Science Fiction Novels, The Onion AV Club’s Best Books of the 00’s. I’d say that Freakonomics was the most influential book of the decade, that Zadie Smith was the best new novelist, and that Harry Potter was the best fantasy/science fiction.

“More Light!” Lying, Police Work, and the Exclusionary Rule

In the 1961 case Mapp v. Ohio, the Supreme Court declined to protect the the possession of pornographic material, but instead decided to exclude all evidence gained through unconstitutional searches. Last month, the Supreme Court revisited that decision in Herring v. United States, where they reconsidered the rule of evidence that excludes evidence gained unconstitutionally. Exclusion, Chief Justice Roberts wrote, “is not an individual right….” As a result, some have argued that the Court has  significantly weakened the exclusionary rule, and that exclusion will recede into the background, joining the plethora of institutions designed to prevent corruption rather than protect the accused. This is sure to deprive the writers of Law and Order of some legal intricacies to mis-explain, but as I shall argue, the Roberts court has not yet overturned Mapp. At worst, this decision is a mixed defeat: though a major legal protection has been weakened, it may not have been warranted to begin with.

Frankly, a lot of the hubbub is a bit premature. Herring dealt only with the admissability of evidence gained due to negligence of a third party, when a search relies upon a discharged warrant that was left outstanding in another county’s database. Chief Justice Roberts wrote:

“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

Though I don’t much like his style, Chief Justice Roberts is right in this, at least: exclusion is not a right, but rather a remedy for the violation of a right, and remedies must be equitable. When we speak in terms of rights, we can lose track of this. The privacy right partially contained in the 4th Amendment is not absolute, nor is it the sole dispository element in a case. At worst, this would allow evidence whose exclusion would be too ‘expensive’ to the justice system, though we are given no guidance on this kind of cost-benefit analysis.

The Wall Street Journal recently published an op-ed proclaiming that the exclusionary rule needs to be weakened. The WSJ charges the Warren Court that decided Mapp with suborning perjury, noting:

“Immediately after… Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. — most cases are prosecuted in state court — didn’t change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. ‘Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs,’ says John Kleinig, a professor at John Jay College of Criminal Justice.”

The Culture Exclusion Built

One thing you rarely hear about in all the police procedural dramas is that policing is a relatively new profession: the public employee who investigates crimes, captures law-breakers, and investigates disturbances is basically a French invention from the late 17th and early 18th centuries. As such, the profession’s development has coincided with the development of democratic governments and of state recognition of individual rights. As the state has become more and more interested in ruling its citizens lives rather than protecting and expanding its borders, police powers and responsibilities have increased, and liberal rights such as those spelled out in the 4th Amendment or derived from its explicit provisions have served to partially bolster individual freedoms from police interference.

In truth, the issue of police perjury isn’t directly relevant to the question the Wall Street Journal was really asking. The question isn’t: “should there be an exclusionary rule at all?” It’s: “Do the benefits of the exclusionary rule come at too high a cost?” Obviously, just because some police officers are tempted to lie to assure a conviction doesn’t mean we should make it easier for them to get a conviction without lying. However, the costs may be higher than a few tall tales of bungling crooks: it have made our police forces more corrupt.

In the early nineties, New York City took official notice of the tendency towards police deception in drug seizure cases, and of the close-lipped culture of corrution that it engendered. The Mollen Commission found that perjury was widespread on the NYPD, and that it was characterized by “brutality, theft, abuse of authority and active police criminality.” The report revealed that corruption and  brutality cases had been hidden from the public record by Internal Affairs officers acting under the pressure of this culture of permissiveness and self-protection.

New York City responded to the Mollen Report by forming a civilian agency to process complaints of the type the Mollen Report cited, one that would be independent of the police culture and able to act fairly and publically in these matters. Right after I graduated from college, I went to work for that agency, the Civilian Complaint Review Board. The job was fascinating for a recent graduate from a left-leaning liberal arts school: I interviewed police officers almost daily, dealt with the correctional system to find complainants and witnesses, and got to peak inside the casework of Giuliani’s NYPD, seeing the effects of the famous ‘broken windows’ theory in action. I met a lot of people whose lives were administered by city government, whether the city was their boss (cops) their landlord (public housing inhabitants, the homeless) or their jailor (convicts, immigrants).  My favorite bad agency name: the NYC Department of Health and Mental Hygiene.

Most of my work centered around allegations of police brutality and unlawful searches and arrests, so I spent a lot of time studying legitimate uses of force and New York State”s interpretation of the 4th Amendment protection from unreasonable searches and seizures. Though these are two areas in which modern American police forces tend to falter, the cases I reviewed were rarely substantiated. For the most part, this was because the officers acted, by all accounts, appropriately. Usually, the facts were not in dispute, and they indicated that the officers effected searches and arrests on the basis of probable cause and using the minimum necessary force. Complainants frequently stated that they resisted arrest, and that the officers struck or wrestled with them in order to gain control. So far, so good: honest officers acted honestly and within the bounds of law. (We can have a discussion about the legitimacy of the state’s monopoly on violence another time.)

The vast majority of the officers I dealt with were clearly blameless in the allegations I investigated, so I do not want to give the impression that my time with them prejudiced me against them. I did, however, notice some trends in these cases. Phrases were repeated: “he flailed his arms and legs,” “I observed a hand-to-hand transaction.” Sometimes, suspects even dropped their drugs and ran. Of course, I cannot say for sure whether these were lies, but I can say that many officers fit complicated events into a simple fact pattern that they had learned by heart. Asked for details, they would return to the general framework, or protest that they could not recall details. Police officers in New York carry memo books in which they store the quotidian details names, dates, weather, and time of day, sometimes even the details of radio calls or arrests. Generally they fill them in on breaks, however, so an action-packed situation that left an officer in the hospital might not necessarily be recorded in a timely manner or when the event was fresh. These officers had gaps in places we all might fail to recall: “Were you in front of him or behind him?” “Which hand?” “What did it look like?” “Where was he standing?” So they filled in those gaps with standard replies. A narcotics team that does a dozen arrests a day can’t be expected to remember the details of just one, right?

This form of ‘standardization’ is deceptive even if the intent to mislead is not always there: the officer knows his account does not correspond to the facts of the matter. The real problem is that the culture of standardized testimony serves to hide the real misconduct. Perhaps the officer’s story approximates the truth, perhaps the truth would cause trouble, or perhaps criminals are simply creatures of self-destructive habit. If every officer falls back on the standard testimonial forms in difficult situations, using fact patterns that have been tested in court rather than the weird and woolly reality, we can’t really tell the difference between forgetfulness and criminality. Compare the connotations of the ‘Thin Blue Line’ [of heroes] and the ‘Blue Wall of Silence’ and you see the problem:  the Blue Line stands between anarchy and civilisation, while the Blue Wall stands between officers and accountability. When you find yourself on the far side of that line, you’ve gone wrong.

Given my interaction with my superiors and colleagues, I believe some of these patterns were widespread. Yet in a few cases that I managed to prove that false statements were made,  I still could not prove intentional deception. Even when I found independent, well-educated witnesses (for education and a clean criminal background are important credibility boosters) to corroborate the complainant’s testimony, or when I caught the officers themselves in self-contradictions or identified inconsistencies between officers’ testimonies, there were still alternative explanations for self-contradiction and inconsistencies. Only rarely did we charge them with giving false official statements: the effective standard of proof for such a charge was unbelievably high. Most of my colleagues developed a twisted version of the Enlightenment’s epistemological skepticism: “I do not know what I cannot prove to the satisfaction of my superiors and an administrative law judge.” Yet though our findings rarely reflected it, there was a fact of the matter in each of the thousands of police-civilian contacts we dealt with each year. Somebody was lying, sometimes it was the police, but our evidence couldn’t bear the burden of proof.

The problem is built into the criminal justice system. Until or unless we develop holographic surveillance for every law enforcement officer in the country and replace testimony with cameras, we must assign privileged credibility to law enforcement officers if they are ever to achieve convictions. Beyond the monopoly of violence, a working police force requires the monopoly on credibility in order to function legitimately. This is an interesting case of potential epistemic injustice or testimonial privilege (as Miranda Fricker would put it.) It takes overwhelming counterevidence to outweigh a police officer’s testimonial privilege; I like to compare it to the procedural injustice under Islamic law, Shari’ah, in which two female witnesses are needed to convict one man. Our background institutions grant this double credibility to law enforcement officers because to do otherwise would be to undermine their investigative function. In order for us to trust the results of an investigation, we must first trust the investigator. In the absence of an external interest, a connection with the victim or the accused, we assume that officers will tell the truth, purposely ignoring the fact that they have an interest in getting the evidence they have gathered into the court’s record and under the consideration of prosecutor or jury, just as they have an interest in avoiding the the consequences of substantiated accusations of improper uses of force. By the same token, independent witnesses deserve no more credit than a law enforcement officer, especially since we rarely fully investigated their possible motives. Yet anyone who has been close to this process has to recognize the inadequacy of our presumptions in favor of police officers, which is why the perception of police lying is widespread even among those who work in or with law enforcement.

So if the WSJ is right, the 4th Amendment does little to protect the majority of citizens from unconstitutional police interference, for the simple reason that police officers lie or alter their narratives to render unreasonable searches reasonable. The absoluteness of the exclusionary rule propagates a culture of acceptable deception on police forces, who sometimes allow this habit of deception to slide into corruption. Herring thus helps to ease the major tension in a law enforcement officer’s professional life, between telling the truth and getting the bad guy. We ought thus to welcome it.

Systemic Remedies

The flashy and inefficient trial by rhetorical combat is dying anyway. We see it so occasionally that moments of full evaluations of law enforcement credibility, like the one we saw in F. Lee Bailey’s cross-examination of Mark Furhman in the OJ Simpson trial, come to stand in the public imagination for all trials. Real trials are usually quite boring: more trench warfare than duel, without much effective challenge to police testimony.

That’s why the true power in the criminal justice system lies in the hands of the prosecutor. In a recent discussion on Metafilter, I was reminded that most (90%) of all criminal cases aren’t settled in front of jury, but rather through plea bargaining with a prosecutor. Since most convictions result from plea bargaining, evidence exclusion or inclusion is just one of many factors that the parties consider as they try to come to a mutually satisfying deal, even when one of the parties is violent criminal and the other is a prosecutor representing the state: excluded evidence strengthens a defendent’s bargaining position, and a weakened exclusion rule weakens that bargaining position. Consider this description from the acting executive director of the CCRB during my time there, a woman named Florence Finkle. She had been an Assistant Distict Attorney in Manhattan, and made a name for herself prosecuting police corruption in the ‘Dirty Thirty,’ Harlem’s 30th Precinct:

…as a prosecutor you’re able to consider the rights of the defendant, the victim and the justice system as a whole. It might be trite, but it really feels like you have the power and authority to do justice.

The prosecutor sees herself acting as a magistrate, evaluating all the evidence and taking a holistic view. Unlike police officers, prosecutors have been around since the very first trials by jury in Athens. The professional ethos of prosecutors is clearer, and less caught up in the contingent developments of the modern nation-state. In many ways, it serves as surer footing for decisions about free and just institutional design than the plea bargain’s prisoner’s dilemma or the trial’s rhetorical combat. Of course, I’m prejudiced here. In addition to the young and honorable lawyers I knew at Vanderbilt who went on to become prosectuors, I will always remember Flo with awe, the way law students remember that one professor who used the Socratic method to shame them into learning. Flo was the most capable and scary person I have ever met. In my final interview for the job, her interrogation had me so confused I could barely remember my own resume. I am absolutely convinced that she used that power for good, that she had a carefully-tuned sense of justice and applied her tremendous talents to achieving it. I am untroubled by the idea that she or someone like her would be evaluating all the factors related to the disposition of a defendant’s case. I trust her to be fair, and as a nation we have increasingly placed our trust in prosecutors like her to make most of the decisions that determine the outcome of a case.

Unfortunately, not every prosecutor manages to live up to Flo Finkle’s justice-dispensing philosopher-king. No one knows this more than prosecutors how dishonest law enforcement officers can be. Yet they’ve done little to deal with the problem themselves. Amongst criminal lawyers, the perception of police perjury in drug seizure cases is quite high:

“According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.”

Consider this Alan Dershowitz article from 1994 which responds to the Mollen Report:

I have seen trial judges pretend to believe officers whose testimony is contradicted by common sense, documentary evidence and even unambiguous tape recordings. And I have seen appellate judges close their eyes to such patently false findings of fact. Judicial acceptance of obviously false testimony sends a subtle yet powerful message of approval, if not encouragement, to perjurers. […]

Many trial judges were prosecutors, and they know perjury when they hear it — and they hear it often enough to be able to do something about it. Yet many tolerate it because they think most victims of police perjury are guilty of the crimes for which they stand charged.

Dershowitz argues that prosecutors frequently encourage the kind of deception that drove us to reconsider Mapp in the first place, and that judges, who ought to know better, accept these lies without challenge. The standard testimonial forms come from prosecutorial coaching and willful judicial blindness. Ultimately, the culture of police perjury is attributable to that guidance and inattention. This is doubly troublesome, because while the police officer cannot control whether his actions are reviewed by a jury or even the Supreme Court, a prosecutor can manage things from behind the scenes through plea bargaining to avoid accountability. Without adequate remedy, what  is to prevent collusion between district attorneys and police? Political pressures on DAs who must stand for re-election are exactly the sort of majoritarian trumps to individual rights that drive the liberal/progressive impulse.

Of course, prosecutors don’t truly act as sovereign deciders: during each of those plea bargains, a defense attorney reviews the testimony and the evidence, and has an opportunity to protest that a particular piece of evidence would likely not be admitted, but the evidence excluded is likely to be immaterial to the case, especially when we factor in police dishonesty.  Yet public defenders are notoriously overworked and this kind of research is time consuming and slow. The difficulties of ferreting out the true details of a search mean that public defenders may miss many evidence exclusion opportunities that private defenders will discover. Exclusion thus serves to further privilege defendents who can afford private representation, perpetuating a two-track justice system.

A weakened or eliminated exclusion rule thus levels the playing field by simplifying the public defense attorney’s workload and potential complications, perhaps (PERHAPS!) allowing her to economize by paying greater attention to truly deserving cases where the prosecutor has made an error. Though this equality may come at too high a price, we are considering the background instituions of the nation here, where distributive justice (of public goods and of remedies for public bads) is trumped only by fundamental liberties. The kind of search you have to lie about, the kind that involves deliberately ignoring a person’s constitutional protections, would still be excluded on this view, since exclusion would deter that kind of behavior if it could be discovered.

This is a long way from the adversarial criminal justice system that we want, but perhaps it is the best possible approximation of the system of calm and patient attention to evidence and testimony that we deserve. Rather than pit a zealous and cunning defense against the state’s righteous might, judges and representatives of the interested parties could engage in collaborative fact-finding and remediation: rehabilitation or retribution.

The problem with procedural remedies in criminal justice is that they don’t go to the root of the problem: we want to punish criminals, and we want to protect civil rights, and those two goals are sometimes at odds. Though police usually stand between the strong and the weak and serve as the best possible antipower to domestic violence, corporate thuggery, and street crime, we are still offended by the blatant violations of privacy and dignity that arbitrary police searches entail.

As I have said, rights-regimes cannot be structured without consideration for the insitutional effects they will wield. The problem with the legal applications of the Kantian account of autonomous right-bearing subjects is that rights like privacy exist within a system that must trade them against other rights, like safety. We need some remedy that fits this violation of a civil rights and individual autonomy, but we will not countenance the loss of safety. The criminal justice system has to balance defendents’ rights against victims’ rights. Even police officers have relevant rights, here, since they ought not to be asked to sacrifice their right to self-defense as a condition of their employment.

Yet this is precisely why rights-talk gets us nowhere: alone, a right can be absolute, dispositive. When set in conflict with another right, both rights become simple values to be traded against each other. In the marketplace for rights, everybody loses. We win a right to a trial by jury, and the state simply raises the stakes of conviction, adding tools to the prosecutors arsenal until plea bargaining is preferable (in 90% of cases!) to placing the enhanced, unbargained charges in front of our peers. We spend so much energy and ingenuity struggling for the recognition and defense of a fundamental right to adequate counsel, and the state simply funds public defenders inadequately. Black Codes are eliminated and replaced with inequitably enforced drug laws. We are considering the background instituions of the nation here, and all we know for sure is that our present institutions are highly prejudicial, tremendously expensive, and considered unjust by many who spend their lives trying to work within them.

Many of our intuitions about exclusion are guided by the fact that the rule is caught up with ‘victimless’ crimes: drugs, pornography, prostitution. I’d like to conclude with another kind of evidentiary exclusion: the relationship between spousal privilege and domestic abuse. In the 19th Century, just as courts were repudiating the husband’s right to corporeal punishment, they began to innovate a number of evidentiary protections for husbands, including the oft-cited claim that spousal privilege inheres in the defendent rather than in the witness, allowing husbands to forbid their wives to testify against them, all in the name of protecting marital intimacy. This was clearly a violation of the principles underlying the rules of evidence, and we’ve long since closed those loopholes. However, we still see a similar issue in the state’s willingness to drop prosecutions when battered partners refuse to testify against their abusive spouse. Yet it does not foster marital intimacy to preserve the spousal privilege in the face of marital abuse.

In both lying and exclusion, we hamper the best epistemic system we’ve ever had, whose capacity to get it right is the foundation of our faith in democracy: the jury, the ultimate guarantor of criminal justice. Exclusion rules are a dangerous remedy for exactly the same reason that law enforcement dishonesty is dangerous: they both destroy the foundation of a jury’s deliberation.  Juries and citizens depend on two things for their determinations: adequate access to information and the inherent advantage of deliberation and group-decision making. We ought not to undermine that. “More Light!”

Self-uniting marriage

Antoinette and I have decided to pursue a self-uniting marriage license. Basically, it allows a couple to get married without an officiant. I guess instead of ‘getting married’ it allows the couple to ‘marry themselves.’ It’s only available in Pennsylvania  and Colorado, and at least in Pennsylvania it often goes by the title ‘Quaker marriage,’ because Quakers don’t have a clergy. The whole thing really appeals to me. Association with Quakers is always good, as is jettisoning the authority of an officiant. There will be no authoritative speech acts, no “I now pronounce you…,” just an egalitarian exchange of vows before a community of friends and family who we hope will hold us to it.

Of course, even this has been marred by the recent controversy over marriage in this country. The state remains the coercive authority here, and the bureaucratic irritant associated with Quaker marriages is that many counties have enforced an informal religious test. If you’re not a Quaker, or at least a member of some other religous group like the Baha’i, the argument goes, you ought not to be able to engage in this special legal exception made for Quakers. Secularists like us don’t count; after all, if you’re really rejecting the divine unification of partners in the religious ceremony, the state’s Justices of the Peace can do the job for you. The state stands in loco dios.

In September of 2007, a Pennsylvania couple sued in Allegheny for the right to a self-uniting marriage licence. They were represented by the ACLU (summary and briefs here,) and a Federal judge found that religious tests are unconstitutional and granted a temporary restraining order that allowed the couple to marry. Antoinette’s legal training makes her unduly suspicious of legal controversy; she’s worried somebody will challenge our marriage in twenty years to deny health care coverage or somethinng. She’s not wrong to worry, either. In another case, a marriage solemnized by a friend of the couple, ordained on the internet by the Universal Life Church, was annulled. That’s scary stuff.

Thankfully, the law supporting Quaker marriages goes back to 1681, so there’s no legal terminological wiggle-room like in the phrase  “priests or rabbis of any regularly established church or congregation.” But this niggling uncertainty makes me feel all the more outraged on behalf of the gays and lesbians living in the forty-nine states where they have no right to marry at all.

Robert Putnam on Commuting

Putnam likes to imagine that there is a triangle, its points comprising where you sleep, where you work, and where you shop. In a canonical English village, or in a university town, the sides of that triangle are very short: a five-minute walk from one point to the next. In many American cities, you can spend an hour or two travelling each side. “You live in Pasadena, work in North Hollywood, shop in the Valley,” Putnam said. “Where is your community?” The smaller the triangle, the happier the human, as long as there is social interaction to be had. In that kind of life, you have a small refrigerator, because you can get to the store quickly and often. By this logic, the bigger the refrigerator, the lonelier the soul.

Putnam’s favorite city is Bologna, in Italy, which has a population of three hundred and fifty thousand; it’s just small enough to retain village-like characteristics. “It would be interesting to swap the citizens of Bologna with the population of New Jersey,” Putnam said. “Do the Bolognese become disconnected and grouchy? Is there a sudden explosion of malls in Bologna? How much of the way we live is forced on us? How much is our choice?”

The New Yorker has this excellent rumination on traveling to work, and it reminds me of the various strategies we adopt to shrink our ‘triangles.’ My father was a commuter; he spent his early adulthood listening to motivational speakers and working late to avoid rush hour. Antoinette’s parents chose a small town in upstate New York: their commutes were short, and her mother can walk to the school where she works.

Antoinette and I have taken the metropolitan approach thus far: we live in cities, and rent less space. Early in life, this was simply an economic necessity: we went where the jobs were. Now, it’s become a habit; most of the time the prospect of a fifteen minute drive is enough to make the trip unnecessary. Antoinette’s environmental commitments will likely never allow us to live anywhere that didn’t have public transportation again.

But Putnam, of Bowling Alone fame, adds the above caveat about social isolation. Two hours in the car every day has a greater impact on your habits and outlook than going to church on Sunday, joining a political cause, or doing volunteer work, because it shrinks the time you’ll have to do those other things. It’s our daily habits that make us who we are, even more than our hopes and dreams, our faith or our compassion. The way we spend our time molds our fantasies, changes our convictions, and attenuates our capacity to relate to each other. I think he’s right even as I’ve found cities to be rather isolating. Cities can certainly be less satisfying for the working poor, the ones who most need the community interaction and social capital of which the commute deprives them, even as they provide wonderful opportunities for the upper middle class to cavort and play in their comfortable two bedroom apartments steps from the Opera, the gym, and a five-star restaurant. In Manhattan I spent two hours in the subway every day, and I often went farther if I wanted to stop somewhere on the way home. If I ever returned to New York City I’d make more money, take more cabs, and live in a broom closet on Central Park West. That, apparently, is the key to happiness.