When the North Carolina legislature passed - in 12 hours from start to governor's signature - HB2, consigning transgender individuals to the bathrooms of their "biological sex" as listed on their birth certificate, UNC''s new system president Margaret Spellings issued a prosaic statement that "university institutions must require" restroom access policies that comply with the law.
The US Dept. of Justice, following its letters to the governor, has now sent a letter to Spellings and other top UNC administrators informing them that HB2's bathroom provision violates both Title IX and the Violence Against Women Act. The system apparently nets somewhere around $1 billion in Title IX money annually. The letter does not (as popular media tends to report) threaten that money directly - but it does threaten to get a court order forcing the system not to enforce HB2.
In critical work on neoliberalism, there’s probably two or three main schools of thought. One approaches the subject as a matter of political economy. David Harvey, whose analysis is explicitly Marxian, is the most well-known figure in this approach; another prominent author in that camp is Philip Mirowksi. The other major school is broadly Foucauldian, taking its cue from Foucault’s Birth of Biopolitics lectures. A third group, represented by autonomist Marxists like Paolo Virno, Franco Berardi, and of course Michael Hardt and Antonio Negri, attempt a synthesis (I won’t have much to say about them here). All sides have methodological critiques of the other; here I just want to note that the Foucauldians generally tend to be concerned with a topic that seems neglected in political economy: granted that neoliberalism expects us all to behave as homo economicus, defined as a risk-calculating, utility-maximizing investor in himself (gendered pronoun deliberate), how does neoliberalism get people to actually do this? After all, it is not a natural human set of behaviors. More specifically, not just how does neoliberalism get people to do this, but how does it get them to do so enthusiastically, treating the definition of the human as homo economicus as the true, correct and only way to be human? In other words, Foucauldians insist that critiques of neoliberalism need an account of subjectification.
Wendy Brown’s new(ish) Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015) makes a substantial contribution to the Foucauldian camp by focusing on “Foucault’s innovation in conceiving neoliberalism as a political rationality” (120). The political rationality is “governance” as “the decentering of the state and other centers of rule and tracks in its place the specifically modern dispersal of socially organizing powers throughout the order and of powers ‘conducting’ and not only constraining or overtly regulating the subject” (125).
In adding a clause to Hegel, Marx remarked once that the great world historical events occur twice: first as a tragedy, and then as a farce. For a 21st century version, I propose adding that it’s getting harder to tell the difference. I am of course talking about North Carolina’s infamous HB2, which requires trans* individuals to go to the restroom of their “biological sex” as recorded on their birth certificate, AND makes several forms of discrimination (racial, etc.) illegal in the state (but not against the LGBTQ) AND bars local municipalities from extending further protections (it does more, but those are enough for one blogpost). The clear intent, and the net effect, is to deprive gender non-conforming individuals from equal protection of the law, and to invite discrimination against them.
In defense of the inevitable firestorm this caused, most of the few state leaders who both support it and who have spoken on it have basically gone into a defensive crouch. The governor claimed to be “blind-sided” by questions about the law, and unclear about its implications. More generally, supporters busy themselves telling fairy tales about the danger to public safety that having “biological” men in the women’s room will cause, no matter how much those men have transitioned into being women. Nevermind that there is zero evidence that there has ever been a problem in this regard, including in the hundreds of jurisdictions that have passed ordinances like Charlotte’s, and nevermind that transitioning is about the most difficult possible way to prey on people in public restrooms. Oh, and nevermind that the law is without theoretical foundation unless you think that trans* individuals are sexual predators, and that cis folks are not.
On the farce side, this means that people who appear to be men will have to use the women’s room (and vice versa), which will almost certainly cause greater discomfort for more people than the previous status quo. On the tragic side, the law is totally unenforceable, and so encourages vigilantism against all gender non-conforming individuals, since they are now all on a continuum that ends with “not being not manly enough to use the men’s room.” As Mary Elizabeth Williams writes on Salon:
In an interesting new piece, Jim Thatcher, David O'Sullivan and Dillonn Mahmoudi propose that big data functions in the context of capital as “accumulation by dispossession,” which is David Harvey’s term for what Marx called “primitive accumulation,” the process by which capital adds to its wealth by taking goods from others and adding them to the system. Marx: “so-called primitive accumulation, therefore, is nothing else than the historical process of divorcing the producer from the means of production” (Capital I, 875 [I am using the Penguin edition]). Perhaps the best example of this is the one detailed by Marx: the enclosure movement in England involved the privatization of agricultural common spaces in England, such that it was no longer possible to graze sheep on lands held by the community in common; the result was that a lot of peasants, who ended up with no or inadequate amounts of private property, lost everything of value they had and became “free labor,” forced to sell themselves to the emerging factories. As Marx sums up the process:
“The spoliation of the Church’s property, the fraudulent alienation of the state domains, the theft of the common lands, the usurpation of feudal and clan property and its transformation into modern private property under circumstances of ruthless terrorism, all these things were just so many idyllic methods of primitive accumulation. They conquered the field for capitalist agriculture, incorporated the soil into capital, and created for the urban industries the necessary supplies of free and rightless proletarians” (895)
I am very sympathetic to the thesis, and there is something profoundly right about it, insofar as Thatcher et al. rely on the separation of the valued information from the person who produces it. But I also think it needs tweaking, for reasons that emerge in the paper itself: the data trail that a person leaves is generally itself without value, and only becomes valuable when aggregated with a lot of other data. In other words, as I tried to argue a while ago, data is itself without value; it is only when it becomes information that it realizes that value.
It seems to me that the accumulation processes of big data is involved in a much earlier stage, the commodification of data into information itself, which involves both the elevation of exchange value over use value, and the conversion of qualitatively different items of data into commensurable units of information. These are, to an extent, equivalent processes, as Marx notes: “as use values, commodities differ above all in quality, while as exchange values, they can only differ in quantity, and therefore do not contain an atom of use-value” (128). Still, I think it’s worth teasing the two threads apart here.
Yesterday was a long day, legally speaking. First, the Supreme Court heard oral arguments in Zubick v. Burwell, which argues that it substantially burdens the religious beliefs of corporations to opt-out (by signing a form) of providing contraceptive coverage for their female employees, as mandated by the Affordable Care Act. The argument is absurd on its face, because it relies on the premise that it is a “substantial burden” of religious freedom to announce that you are exercising your religious freedom by refusing to do something that everybody else has to. But nevermind; according to everything I’ve read or heard about the session, it looks like the Court is heading for its first 4-4. Sorry, women in the states covered by the 8th Circuit! (UPDATE: this is somewhat oversimplified: the argument is that it makes the religious organizations "complicit" in immoral behavior. This is subject, however, to an obvious reductio: presumably these women draw a salary, and they can use that money to fund their contraception and any form of sexual activity they desire. Men of course also draw salaries, and there seems to be no worry about their sexual activities. One question is whether less intrusive means are available to achieve the same ends. See here and here).
Here in North Carolina, we began a special legislative to put a stop to a grave public health threat: allowing trans* individuals to use the restroom of the gender with which they identify. Why now? Because Charlotte passed a non-discrimination ordinance a few weeks ago allowing just that. So there had to be a special legislative session before April 1 (when the ordinance would have become effective), because kids. Or something. I can't make sense of the law except as a display of trans* phobia. First, something like 200 municipalities have adopted such rules, and there have been zero problems. So we’re solving a problem for which there is not a scintilla of non-speculative evidence that it actually exists. That suggests that claims of state interest are wildly overblown. The law is being used purely as an expressive device, even though it is about to make life more difficult for real people. Even if there’s a state interest here, I don’t understand how the statute does anything meaningful to advance that interest: predators would avoid public restrooms that are highly trafficked, and a law like this wouldn’t deter those predators (again, "predator" and "trans*" actually refer to different sets of people!) at less trafficked areas.
But the legislature likes to think big, and the bill does a lot more than restore restroom access: it sets up (for the first time) a list of things on the basis of which you’re not allowed to discriminate in NC. This initially sounds promising; The Raleigh News and Observerreports:
“The bill would create a statewide law that would ban discrimination on the basis of “race, religion, color, national origin or biological sex” at businesses and other “places of public accommodation.” But the law wouldn’t include sexual orientation and gender identity as categories protected from discrimination”
And that's about where it stops sounding so promising: it bans local governments from going further and granting additional protections. In other words, it specifically bans efforts to protect LGBTQ rights. We should pause at "biological sex," which features in the statute, and which the state defines as the one written on your birth certificate. The state points out that you can have that changed (assuming, I guess, you were born here, which a huge percentage of Charlotteans at least were not). But this is an attempt to define trans* right out of existence: Caitlin Jenner was not born a woman, she became one. The entire discussion brings to mind Judith Butler's remarks on "Gender Identity Disorder" and the way the state functions as part of a damaging dialectic of recognition.
There are a couple of emerging narratives about Donald Trump. One is that he is the unreconstructed id of middle-aged, white American men who were left behind by the economy. They aren’t quite sure who they’re mad at, but the list probably includes everybody who doesn’t look like them, women in general, and all those libruls who insist on the “political correctness” of being civil whilst in civil society. It also includes the Republican establishment, which Trump supporters have finally realized not only has virtually nothing in common with them, but also does not care about their actual interests. So the base devolves to all it has left: a generalized rage. The other narrative says that Trump is a European-style nationalist: you can have your social services, but you can’t have people who don’t belong to your tribe running around and using those services. These narratives have in common the idea that Trump is appealing because he is racist.
One should never underestimate the explanatory power of racism in American politics, but there’s a third narrative about Trump that belongs in the picture, because I think it adds some explanatory value that the other two don’t: Trump is also the perfect embodiment of contemporary capitalism, by which I mean brand capitalism. I want to take a little time to explain this via a detour into Saussure, but if you don’t want to go there, here’s the gist of it: Trump doesn’t have policy positions because he’s not selling any product other than himself, and there isn’t anything to him other than his being the embodiment of TrumpTM.
The FBI has the iPhone of the San Bernadino shooters, and would very much like to examine its contents. But they have a problem: the contents are encrypted; guess the wrong password ten times, and the phone will self-destruct like one of those tapes in Mission Impossible (that’s not a technically correct analogy, of course: the data would end up permanently encrypted, and there would be no smoke). The FBI thus got a judge, using the authority of the 1789 (sic!) All Writs Act (more on this another day; for some initial analysis, see here), to order Apple to disable the auto-destruct, which would allow the FBI to fire up its biggest computers to try to guess the password by brute force. In what is likely to be the beginning of a very long legal fight, Apple refused, arguing that there would be no way to open this individual phone without creating a back door that would enable access to all phones of that type.
I’m currently teaching an ethics and public policy course, and for this week we read Kaplow and Shavell’s Fairness vs. Welfare (actually, we read the first 70 pages of the NBER paper that became the much bigger book). Their central claim is that to pick fairness as the dominant principle in policy-making is by definition to make some people worse-off than they were, and that there are numerous cases where the priority on fairness would make literally everyone worse off. An important subtext is that they don’t think “fairness” means anything, except as a poor, error-inducing proxy for “welfare;” the argument is like reading chapter 5 of J.S. Mill’s Utilitarianism on justice.
The argument is a preference-based one, and it interprets “welfare” broadly – there’s no correcting of preferences here (or apparent awareness of problems with adaptive preferences). They also allow for a “taste for fairness” – i.e., the preference many people feel for a situation they believe is fair. More on that in a minute. It’s a little unclear who their target is, as well: it sounds like Rawls, but of course Rawls is quite clear that his version of rationality is lifted directly from economics. Kant is the only person I can think of who spends a lot of time separating preferences (heteronomous desires) from what reason demands, so he’s as good a target as any. In any case, I want to focus briefly on the claim that fairness-based policies can make everyone worse off.
So we all know that there’s a difference between “sex,” taken as a biological characteristic, and “gender,” as a social one. Maybe the heuristic is overdrawn (put down the updated theory; that’s not where this is going), but it works pretty well as a heuristic. It also has just led to a (maybe not so surprising) study result (paywalled; for a quick video summary, see here, though you may get served an ad): among young people with premature Acute Coronary Syndrome (ACS; it’s an umbrella term for anything involving a sudden reduction or block of blood flow to the heart, such as a heart attack), being gendered female – of self-identifying with traits that are traditionally associated with women – increases the risk of recurrence over the next 12 months. Being a woman (i.e., biological sex) does not affect future risk. As the authors say:
“Gender-related characteristics like personality traits and social roles (psychosocial sex) may be as important as biological sex in predicting adverse cardiovascular outcomes in young patients with acute coronary syndromes. Both women and men with personality traits and social roles traditionally attributed to women are at increased risk of subsequent adverse events.”
I make no assessment of how robust this result is (I noticed that the cohort was fairly small). I will note that the study did not take race into account, although everything we know about intersectionality says that young women of color are likely to have even worse outcomes.
We’ve known for a while, thanks to work by scholars such as Stephen Menn, that Descartes was in many ways a deeply religious and conservative thinker, one who took great care to try to align his work with Church doctrine, and who engaged scholastic thought with a good deal more precision than his dismissive comments suggest. One need only compare his assertions about the epistemic veracity of “ideas” as opposed to linguistic expression, to see the point. Indeed, as Tad Schmalz documents in detail, Descartes and his followers’ problem – and why he ended up on the banned books list – wasn’t any of the things that you might initially think, like the cogito, but the inability of his followers to explain the Eucharist (this shows up as early as Arnauld’s replies; in a way, the failure was inevitable, since the official explanatory apparatus of the Eucharist, as a product of the 1300s, presupposed Aristotelian physics, which Descartes rejected). Foucault’s lectures On the Government of the Living deepen that picture and apply it to the world we live in today.
In his Descartes and Augustine, Menn makes the case that Descartes is fundamentally an Augustinian thinker in many ways. The cogito (Descartes never says “cogito ergo sum” in his own voice, by the way, so really we are talking about the res cogitans) appears to be lifted straight from Augustine. Via Menn, then, here is the Augustine. I apologize for the length, but if you’re not familiar with it, the passage is worth it (for the TLDNR crowd, I’ve boldfaced the parts that get the point across most succinctly:
An important trademark and First Amendment case was decided in the Federal Circuit yesterday. In it, the Court ruled in favor of Simon Tam, who named his band “The Slants.” When he attempted to register the band name as a trademark, the Patent and Trademark Office (PTO) rejected the mark as “disparaging,” arguing that the First Amendment does not allow government to disfavor speech that it disapproves of the message it contains. Per the Court:
“The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech.”
The Court thus rules that the PTO needs to allow the mark to be registered (for a quick blogpost, see here). A lot of people think this case has ramifications for whether the Washington "Redskins" should be allowed to keep their trademark registrations (they were canceled by the 4th Circuit; the Washington Post has a long list of rejected marks here). The conflict between the circuits raises the odds of Supreme Court review. I wrote about the Redskins case when it came out, and a lot of what I said there applies here. In that post, I expressed some support for the PTO, because I wonder if the case shouldn’t be framed as viewpoint discrimination so much as whether one has a constitutionally protected right to a government subsidy for speech that it does not endorse. But it's not a comfortable road to travel, as I based my argument on abortion cases, Rust v Sullivan in particular, that I wish were decided the other way.
In their critique of Foucault that accompanies their translation of his writings on Iran, Janet Afary and Kevin Anderson accuse Foucault of a certain Orientalism: “indeed, similar to a passionate Romantic, Foucault may have exoticized and admired the East from afar, while remaining a Westerner in his own life” (17). Evidence for this charge is not too hard to find; the most striking may be his assertion in History of Sexuality I that non-Western societies practiced an ars erotica but not a scientia sexualis. In the context of Iran, Foucault’s self-qualification that he’s read “three books” on Shi’ism doesn’t inspire confidence in the person who claims that genealogy requires a “relentless erudition.”
But then there’s this: “in an unusual turn, however, Foucault’s ‘orient’ seems to include the Greco-Roman world as well as the modern Eastern one, since the contrast he draws is primarily between tradition and modernity rather than East and West as such” (Afary and Anderson,18).
Since we’re in the interregnum between “sign up for health insurance” time and “eat yourself into a stupor” time, it’s appropriate to notice something about pastoral power and our healthcare system. First, we’ll go back in time. Foucault proposes that pastoral power under medieval Christianity:
“Gave rise to an art of conducting, directing, leading, guiding, taking in hand, and manipulating men, an art of monitoring them and urging them on step by step, an art with the function of taking charge of men collectively and individually throughout their life and every moment of their existence.” (Security, Territory, Population (=STP), 165)
He then urges that this is not the same as political power, the power used to educate children, nor is it persuasion (“in short, the pastorate does not coincide with politics, pedagogy, or rhetoric” (164)). The pastorate does not disappear with the rise of modern power forms, as he emphasizes in a couple of places (STP 148, 150). Indeed, he makes a much stronger claim: “I think this is where we should look for the origin, the point of formation, of crystallization, the embryonic point of the governmentality whose entry into politics … marks the threshold of the modern state” (165).
This is shameless self-promotion, but I've just posted "Equitable Biopolitics: What Federal School Desegregation Cases Can Teach us about Foucault, Law and Biopower" to SSRN. This is my SPEP paper from 2014, and I've referenced it in a few blog posts here. So here it (finally!) is. The abstract is:
The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration. This strategy is evident in the line of cases running from Brown to Swann v. Mecklenburg, and has its antecedents in pre-war economic regulation. Later cases have attempted to close this relay, confining equality and rejecting claims of equitable relief. Study of the school desegregation cases thus both shows an example of the intersection of biopower and law (which has been difficult on Foucauldian grounds), as an example of the biopolitical race war that Foucault identifies in Society must be Defended.
As Melinda Cooper notes (recall here), one of the reasons Gary Becker – as opposed to other neoliberal theorists – was interesting to Foucault because of his emphasis on microeconomics, particularly the quotidian institutions through which micropower functions, such as the family. At the same time, Becker’s human capital theory has become increasingly important in neoliberal constructions of human nature. In a late essay, Becker applies himself to health economics. The result, I think, offers a very clear demonstration of neoliberal thinking and how it works nearly inexorably to distract from social problems, generally by constructing them as individual problems and ignoring the social determinants of an individual’s situation.
In her contribution to recent the Vatter/Lemm-edited collection of essays on biopolitics, Melinda Cooper argues that Foucault’s work on neoliberalism needs to be read in the context of his interest in the Iranian revolution. If she’s right, this stands current complaints about Foucault’s engagement with neoliberalism on its head. The standard complaint about the work on biopolitics is that Foucault ends up supporting (deliberately or otherwise) neoliberalism. The merits of that claim have been debated ad nauseam, particularly in light of the Zamora book last year, and I have no interest in revisiting them here (plus, Vatter’s paper in the same book does a great job on the topic, and I think he ups the bar considerably for future discussions). Cooper’s paper is of interest because she makes what is essentially the opposite claim: Foucault was so disturbed by the general diffusion of the oikos into the polis that defines neoliberalism (and really classical liberalism, too) that he found the Iranian revolution interesting precisely because it focused on restoring some sort of classic oikonomia. There’s thus two main steps to the argument in its most condensed form: (a) The Iranian revolution was premised on getting women out of the public sphere after Shah Pahlevi introduced a number of reforms that greatly expanded their integration into the full economy; and (b) Foucault thought that it would be a good thing if there was some sort of restoration of the law of the household as a bulwark against neoliberalism.
A while ago, Daniel Zamora’s (re)publication of a series of essays designed to say that Foucault ended up embracing neoliberalism caused quite a stir in the blogosphere. As one of those invited to contribute to a forum in An und für sich), I argued that Foucault saw both that neoliberalism realized the need to create markets (as opposed to liberalism’s assumption that they just happened), as well as the need to create homo economicus as a form of subjectification. As I put it then:
We don’t access the internet directly – it’s always through some sort of intermediary software. For that reason, it matters – a lot – what the intermediary does, and what kind of interactivity it promotes. Concern about this dates at least to a 1996 (published finally in 2000) paper by Lucas Introna and Helen Nissenbaum called “Why the Politics of Search Engines Matters.” More recently, Tarleton Gillespie has emerged as a major voice in these debates: his book, Wired Shut, makes a strong case against Digital Rights Management techniques, and his more recent “Politics of Platforms” makes an argument analogous to Introna and Nissenbaum’s for programs like Facebook. Indeed, internal FB studies seem to bear these concerns out: Facebook discovered that it could influence voter participation with simple “get out the vote” reminders sent to some users but not others. The results could easily swing a tight election. Gillespie and Kate Crawford have a new paper out that makes the argument in the context of “flagging” content.
Foucault made a big deal in the lectures contained in Security, Territory, Population of the linkage between medieval pastoral power and modern governmentality. Although there have been skeptics – most notably Mika Ojakangas, who thinks Foucualt reads the ancient sources nearly backwards: it was the Greeks and Romans who practiced eugenics, and Jewish and Christian authors who opposed them – it’s certainly a narrative that has the feel of doxa.
What is pastoral power? According to Foucault, during the Middle Ages, Christianity “is a religion that … lays claim to the daily government of men in their real life on the grounds of their salvation and on the scale of humanity, and we have no other example of this in the history of societies” (STP 148). Through an elaborate apparatus of confession, submission, and obedience, a “subtle economy of merit and fault” (STP 173), Christianity established a series of equivalences between the salvation of the pastor and that of his flock according to which the salvation of one was a function of the salvation of the other (STP 169-72). Although these techniques of power were historically specific, Foucault argues that analysis of pastoral power shows it to be the “embryonic point” of modern governmentality (STP 165). In sum:
"We can say that the idea of pastoral power is the idea of a power exercised on a multiplicity rather than on a territory. It is a power that guides towards an end and functions on an intermediary towards this send. It is therefore a power with a purpose for those on whom it is exercised, and not a purpose for some kind of superior unit like the city, territory, state or sovereign …. Finally, it is a power directed at all and each in their paradoxical equivalence, and not at the higher unity formed by the whole" (STP 129).
That’s the story.
The problem is that there is another Foucauldian narrative about governmentality. You see it in his Rio lectures of 1973 (“Truth and Juridical Forms,” in the Power anthology). But it’s even more evident in his “Lives of Infamous Men” (also in Power, the pagination to which I will refer) (these texts are both slightly before STP).
The legal doctrine of substantive equality – roughly, that one look at not just the presence of stipulated, formal equality, but that one incorporate outcomes as relevant to whether or not equality has been reached – strikes me as a biopolitical concept, whereas its more formal counterpart is more juridical. Consider the right to abortion: a formal declaration that a woman has the right to terminate a pregnancy prior to fetal viability exists whenever laws do not prohibit the termination. Recent state laws that ban all abortions after a gestational age of 20 weeks run afoul of that right, because a fetus at 20 gestational weeks is not viable. On the other hand, if the right is substantive, then it matters whether women can actually take advantage of the right. State laws that require spousal consent, for example, were declared by the Court in Planned Parenthood v. Caseyto place an “undue burden” on the exercise of that right. That’s a decision based on substantive equality, and it treats women not (just) as juridical subjects possessing abstract rights, but as agents in the world trying to achieve the outcomes that such rights are (presumably) designed to allow. Current rounds of state restrictions on abortion, such as forced transvaginal ultrasounds (on the pretext of ensuring the woman is “fully informed”) or the demand that clinics look like hospitals (for the “safety of women”) seem designed to limit the substantive right to abortion, while preserving it formally. All of that is a rough-and-ready way of putting the distinction, and there may very well be any number of equality claims in particular where the substantive version doesn’t sound particularly biopolitical. That’s ok – in what follows, I want to look at education, and to propose that claims of substantive equality, even biopolitically-oriented ones, can differ dramatically in what they claim and how they claim it.
One of the notable features of Brown v. Board of Education is its reliance on social science evidence indicating the psychological harm of segregation to black children (this is the famous “footnote 11,” which cited a number of recent studies). In his reflections on Brown, Robert L. Carter, one of the attorneys who argued the case, noted that “we assumed … that educational equality in its strict educational connotations – with its emphasis on the quality of education – was the same as educational quality in its constitutional dimensions” and notes that, in a series of earlier cases, “we turned to expert testimony for the first time,” and supported the argument with two kinds of claims: by “measuring the physical facilities of the proposed black law schools against the existing university holdings and by taking into account the adverse psychological detriment that we contended segregation inflicted on blacks – all of which resulted in a denial of equal education” (Bell, ed., Shades of Brown, p. 22). The three cases prior to Brown were Sweatt v. Painter, McLaurin v. Oklahoma, and Sipurel v. Oklahoma. Let’s take them in reverse chronological order.
There were some interesting cases from the Supreme Court yesterday. No, not gay marriage or Obamacare. But the Court ruled in favor of business privacy (against blanket government intrusion) and in favor of a jail inmate who had been badly handled by deputies. There’s also a potentially important regulatory takings case. I want to look at the first one for now. Los Angeles v. Patel involved an LA ordinance that required that hotel owners keep records of specified information about hotel guests, and that hotel owners must make these records “available to any officer of the Los Angeles Police Department for inspection” on demand. Several hotel owners sued, making a facial challenge to the ordinance on Fourth Amendment grounds. Today, the Court ruled (5-4, opinion by Sotomayor) that the statute was on its face unconstitutional because it provided no way to challenge an officer who showed up with a records demand.
Publishing in general, and for the visual arts in particular, has moved to what’s called a “permission culture,” which basically means that nobody will publish your work unless you get explicit permission from the rights owner. This is often an arduous process, since art often includes many copyrighted images or other materials. A documentary film producer, for example, has to worry if an interview subject has the TV on in the background. Permissions culture means that the producer has to either remove whatever is on the TV, or secure permission to use it. It also means that scholars may not be able to publish articles that include images of the work they are discussing, either because the images are unavailable, or unaffordable.
On the surface of things, this seems odd: shouldn’t a lot of this fall under “fair use?’ The copyright statute, after all, cites education as an example. An important paper in 2007 explained why fair use doesn’t matter in this context. Basically, fair use is an affirmative defense against an infringement claim: you sue me for infringement, I claim fair use, and that’s the argument that litigation resolves. Fair use guidelines are deliberately vague and left to a case-by-case judicial determination, and so it’s not always obvious what gets counted as fair use. Litigation is very, very expensive, and publishers are risk averse. They don’t want to pay for litigation, and if they lose, they lose not only all that money, but the work they were trying to publish gets enjoined. So publishers won’t publish without prior permission (fair use thus systematically favors rich claimants and defendants). In addition to the problems all of this directly creates, it indirectly creates a ratcheting effect, because one place courts look to see if use is fair, is industry practices. So the more publishers seek permission for everything, the narrower fair use becomes.
In May, a 13-year-old named Izabel Laxamana took a selfie wearing a sports bra and some leggings, and sent it to a boy at her school. When school administrators heard about the picture, they contacted her parents. What happened next defies easy comprehension: delivering on a threatened punishment for breaking his social media rules, Izabel’s father cut off her hair. He then made a video of Izabel with her hair (in a pile on the floor), demanding that she say breaking their rules hadn’t been worth it. The video found its way to social media. Two days later, Izabel jumped off an overpass, and a day later, she died from her injuries. The reasons why Laxamana committed suicide are of course complex, and may or may not be because of the shaming (and the father may or may not be the one who posted it to social media).* But the videoed retaliatory haircut seems to be real. In a recent piece in Slate, Amanda Hess catalogues the sudden re-emergence of this medieval phenomenon – literally medieval; women were punished by having their hair cut off, often in public – and situates it as part of a more general re-emergence of the public shaming of teenagers by their parents:
In the current issue of Philosophy and Rhetoric, Kelly Happe has an interesting paper interpreting Occupy Wall Street (or at least the Zuccotti Park component) as an example of cynical parrhesia. In a time when all expression is always already co-opted by neoliberal capital as a source of surplus value (this point has been canvassed extensively by the autonomist Marxists as “complete subsumption,” and I’m going to take it for granted here. I summarize it here in my discussion of Hardt and Negri’s Empire), it becomes hard to know what kind of speech would count as protest. Anyone who has seen the branding of Che Guevera T-Shirts has some idea what the problem is. It’s also one that has been very difficult to address; in Empire, for example, which lays out the problem quite clearly, we are offered the somewhat discouraging example of Coetzee’s Michael K, a character who drops out and nearly starves to death in caves.
Happe’s move is to suggest that Occupy succeeds in avoiding cooption by way of its rejection of politically expressive speech. As she puts it, “what is striking is the time and space devoted to the material culture and everyday life of public, communal living. Indeed, in the various accounts of the Zuccotti moment of Occupy, the radical imagination is inseparable from the otherwise unremarkable practices of day-to-day living in an encampment” (214). That is, it is in the rejection of symbolic and explicitly “political” speech that Occupy evades neoliberal cooption. Such speech, she proposes, is a good example of the sort of ethical parrhesia that Foucault recounts in the ancient Cynics. For the Cynics, it is precisely the extent to which their speech is unintelligible to politics that makes it radical, suspends its subsumption into the political apparatus, and presents the contingency of a new way of life. Happe writes:
One of my summer projects is to work up my SPEP paper from last year, which used the school desegregation decisions (like Brown v. Board) as a way to think about the relations between juridical power and biopower in the courts. The role of the courts in the transition from hegemonic juridical power to hegemonic biopower hasn’t been studied a lot, and the tendency is to dismiss the courts as institutions along with juridical power. The centrality of the judiciary in school desegregation convinced me that there’s more to be said, however. Current litigation about whether corporate entities can use rights claims to deny contraceptive insurance coverage to their female employees seems to bear that intuition out. So I’ve been reading, and one thing that didn’t particularly strike me until now is the complexity of the relation between school desegregation policy in the U.S. and what Foucault calls a “race war” at the end of Society must be Defended.
It must be summer: Facebook has released a controversial study of its users. Last year, it was the demonstration that the emotional contagion effect did not require direct contact, and could in fact spread across social networks without direct, face-to-face contact (the controversy wasn’t in the result, it was in the fact that FB did the study by manipulating its users’ Newsfeeds to present more happy content) This time, Facebook’s research wing published a paper in Science purporting to demonstrate that Facebook wasn’t responsible for whatever online echo-chamber effect its users might demonstrate. Or, at least, if the site did contribute to an echo-chamber, it wasn’t the main contributor. From the FB blog discussing the paper:
The Supreme Court on Tuesday heard oral arguments in Obergfell v. Hodges, which presents the Court with an opportunity to strike down state bans on same-sex marriage once and for all. Most observers seem to think that the court will take the opportunity. The four liberal judges are taken as a given, and both Justice Kennedy and Justice Roberts arguably have obtainable votes. Kennedy, who has repeatedly departed from his conservative colleagues on gay rights issues, seemed to think that the recognition of marriage afforded a kind of dignity to a relationship, and that there wasn’t any good reason why gay couples should be denied that dignity. Chief Justice Roberts, as Andrew Koppleman points out, seemed to be considering a very easy way out: bans on same-sex marriage are sex discrimination.
The sex discrimination argument isn’t immediately apparent, but once you see it, it makes pretty good sense. Mary wants to marry Joe. So does Bob. Mary can, and Bob can’t. The only reason Bob can’t marry Joe is his sex. It’s clear, it’s tidy, and it doesn’t require anything legally novel, like declaring that being gay (or otherwise gender non-conforming) makes one a member of a “suspect class” (something like race, where members of the class have been historically the objects of “invidious discrimination;” legislation affecting them as a class is then guaranteed a higher level of judicial scrutiny). If same-sex marriage bans discriminate on the basis of sex, then they have to survive judicial strict scrutiny, and that seems pretty unlikely. For one thing, it’s not at all clear what compelling governmental interest is served by restricting marriage only to heterosexual couples. The states in question were putting their eggs in the basket that marriage is for the sake of having and raising (one’s own biological) children. As William Saletan points out, that argument makes sense in a vacuum, but if it’s true, then states ought to ban marriage by the old or the infertile. Attorneys defending the ban apparently had one of those bad-days-at-work, repeatedly falling into incoherence.
I’d like to look here a little more at Foucault’s claim that Heideggerian ontology is internalist (see my discussion here), because I think it makes an important point about the political nature of context-setting. Although questions of context are of course very difficult, one can quite plausibly propose that Being and Time begins in Plato (as evidenced by the opening passage), and most of Heidegger’s career follows the sort of trajectory that opening might suggest, conducting an extended engagement with Greek philosophy, attempting to discover whatever mistake it was the Greeks (or maybe the Romans) made that led to modern technology, according to an intrinsic logic that is present at its inception. None of this is news, and I bring it up here only to notice why the shift in context (as evidenced in his rejecting the “Heideggerian habit” in the D’Eramo interview) in Foucault’s case is significant. Indeed, one can compare Heidegger and Foucault directly on the point. Foucault introduces the question of Being in the parrhesia lectures with reference to Leibniz, and Heidegger’s 1955 lecture course ThePrinciple of Reason [= PR] basically reduces Leibniz’s principle of sufficient reason to the Greeks. Heidegger, though talking about the atomic age, has Leibniz channeling the ancients:
At the beginning of a 1974 interview (D&E II, 521), M. D’Eramo puts the following question to Foucault: “you always start your analyses at the end of the Middle Ages, without ever speaking of antiquity, but it seems to me that ancient Greece is important for constructing what you call an ‘archaeology of knowledge.’ Are you avoiding the subject intentionally?” Foucault’s response, which is one of the very few times in which he mentions Heidegger by name other than in the context of existentialism, should be quoted at length:
Unlike Derrida, with whom he had frequent, highly public polemics, Foucault says relatively little about Heidegger. Much of that is incidental: in a 1983 interview, for example, while talking about the postwar influence of Sartre, he notes parenthetically that “the roots of Sartre, after all, are Husserl and Heidegger, who were hardly public dancers” (Aesthetics, 452). In his 1982 lecture on the “Political Technology of Individuals,” Heidegger’s name shows up in a list of those who are in the “field of the historical reflection on ourselves” (Power, 402). But, in a late interview, he says that “my entire philosophical development was determined by my reading of Heidegger” (see the discussion here). He makes a comparable remark in one of the Hermeneutics of the Subject lectures; in response to a question, he names Heidegger and Lacan as the two 20c thinkers who have dealt with the subject and truth, and says that “I have tried to reflect on all this from the side of Heidegger and starting from Heidegger” (p. 189). What are we to make of this?
The limited point I wish to make here is that there is also evidence in Foucault’s last lecture course, The Courage of Truth (CT), of an engagement with Heidegger. I suggested in an earlier post that there was a specific “parting shot” at Derrida; the evidence for engagement with Heidegger is along the same lines: he doesn’t name names, but it’s pretty clear what he’s talking about. The references matter because they some of the luster off the idea that Foucault continued to get that much out of Heidegger. At the same time, I think they establish that Foucault is not only interested in Heidegger as an existentialist. Aret Karademir makes that case, aligning an existentialist reading of Heidegger with an existentialist account of the late Foucault, specifically aligning the two of them on the idea that the sort of creation of oneself as a work of art in late Foucault strongly parallels Heideggerian authenticity. The argument here is specific to the post-Kehre Heidegger. I’ll argue that Foucault’s Cynic would get the Heideggerian stamp of approval in this post, but then that this indicates Foucault’s disapproval in the next.