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Suja Thomas & David Lopez – Why Judges Routinely Dismiss Sexual Harassment Cases

Suja Thomas & David Lopez:

“Why Judges Routinely Dismiss Sexual Harassment Cases”

 

This article makes an excellent example of why nearly-correct commentary is dangerous.  While it is helpful that the authors cite a 2015 study about a divergence between decisions made by a judge (from the bench) as compared to those by juries, that argument boils down to drawing a line in the sand as to how much judicial decisions must match those of juries.  The authors clearly feel that juries agreeing with judges 75% of the time, in the study sample, is insufficient; they do not articular their minimum acceptable threshold: 80%? 90%? 99.999999999%?  And they side-step the issue of bias in juries — perhaps the views of bigoted juries should be curbed by judges?  Are juries selected in a way that is more fair than judicial selection (obviously, yes, though the article leaves the extent of that and limitations of jury selection unexplored).  The study is limited to situations in which appeals judges overturned a lower court judge (in other words, the study of divergence between judge and jury views is limited to a sample in which judges disagreed).

Anyway, turning to the main thrust of the article, it has some troubling features.  From a legal realist standpoint, it is clear that the authors are peddling a liberal “identity politics” platform, and are dredging around for facts that look like they support the authors’ preferred “identity politics” solutions.  What do I mean by that?  Well, for starters, the key to this article is its reference to “structural reasons”.  This is invoked as the proper explanatory frame for judicial bias in a very specific way:  the accusation is that judges are disproportionately white men, compared to the general population.  While avoiding explicitly saying it, the authors are suggesting that if judges were made up of a racially/gender/etc. diverse base, then the problems they discuss would disappear.  This is certainly better than the “implicit bias” framework.  But nonetheless this approach has been tested in other contexts, and it fails.  In particular, police departments have been exhorted to “diversify” for some time, and departments that have done so have not shown hoped-for reductions in discrimination.  This is because the “identity politics” frame overlooks the role of ideology.  Minorities can accede or succumb to hegemonic ideology, and thus act as collaborators in a biased system.  Elaine Brown in her book The Condemnation of Little B referred to this as “New Age Racism” in a similar context.   Walter Benn Michaels and Adolph Reed, Jr. have been hamming this point home for at least a decade too.  Merely appointing more minorities to judgeships won’t solve the problem of a discriminatory ideology unless those judges are willing to challenge the hegemonic ideology.  They might, or they might not — although more racial/gender/etc. fairness in such judicial appointments would undoubtedly be a good thing.  The point is that the authors have offered an insufficient analysis.  Their version of a “structural” analysis is flabby.  To be sound, and come closer to being sufficient, it would need to take more account of power and something like ideology and class, though they do hint in that direction by saying that judges “may want higher positions in the judiciary or elsewhere, which can influence their decisions”, which is perhaps a passing reference to hierarchies of power, economic bases, and hegemonic ideology.  A much more probing set of questions was raised in another article questioning how alternative dispute resolution arose to stifle discrimination suits — though this other article was offered by an independent scholar.  Could it be that Suja Thomas and David Lopez themselves “may want higher positions in [academia] or elsewhere, which can influence their [theorizing]”, and therefore limit the scope of their criticism?  Social science is only valid if it is reflexive and its intellectual weapons are also turned on those who create and wield them.  Thomas and Lopez’ article does not seem to meet such a standard.  It masks an adherence to a hegemonic worldview premised on inequality behind seemingly benign and well-meaning advocacy for minor technocratic improvements, thereby depoliticizing the underlying struggle and reinforcing the ideology that sustains bigotry at its very roots.  In other words, a version of this quote by Frantz Fanon applies: “What matters is not so much the color of your skin [or, your gender] as the power you serve and the millions you betray.” (Black Skin, White Masks).

Academic Incentives

One thing I’ve noted through the years is that there is a rough divide in academia between theory and observation.  Actually, this is a pretty commonplace observation.  What is less discussed, though, is the sort of hierarchy of prestige that tends to place theory above observation.  Of course, there are exceptions, and unconventional theories often have to do both theory and observation in order to gain any recognition.

One sad byproduct of all this is that academics tend to cluster in tribes, and often recreate pre-existing theory under new names.  Why?  Well, because theory is more prestigious than observation!  Take an example.  “Einstein” is a household name.  Why?  Because Albert Einstein developed the theory of relativity in physics.  But could you name someone (and there are many names here) whose observations confirmed Einstein’s theory?  Probably not.  If there was more parity between theory and observation, academics would probably be more willing to conduct observation according to existing theory, rather than constantly trying to posit an influential “new” theory that may disregard existing theory in a completely self-aggrandizing way.

There also is relatively little ground for synthesis of different theories.  Academics tend to have “departments” in universities and other institutions, and inter-disciplinary efforts are difficult in such an environment, on top of the difficulties trying to integrate theories within a given discipline.

Add to this the problem of ideology, in that, practically speaking, most social science theorists pick out a desired solution — what they want society to look like — and then conjure up a theory that points toward that desired solution, without spending much if any time making explicit their desired solution.  Put another way, many social science academics actually spend most of their time making sales pitches for their pet solutions, rather than constructing theories, testing them, and only then devising suitable solutions to theoretically verified root causes of problems.  That isn’t to say such an approach is inherently wrong, but those who deny doing that should be viewed skeptically — as ideologues not “scientists” or “academics”.

I think a radical solution to much of this would be to disallow name attribution on scientific and academic work. After all, is it really about the work itself, in its “objective” advancements, or about accumulating social and cultural capital? (See Chapter IV of The Higher Learning in America: A Memorandum on the Conduct of Universities by Business Men)

Nyle Fort – Meet Larry Krasner, Philly’s New Progressive DA Who Has Sued the City’s Police Dept. 75 Times

Link to an interview with Larry Krasner, conducted by Nyle Fort:

“Meet Larry Krasner, Philly’s New Progressive DA Who Has Sued the City’s Police Dept. 75 Times”

 

Bonus links: “The Problem with Sullivan & Cromwell Partner Nicolas Bourtin and His Five Myths About White Collar Crime” and The Rich Get Richer and the Poor Get Prison

Paradise Papers: Secrets of the Global Elite

Link to a report by The International Consortium of Investigative Journalists:

“Paradise Papers: Secrets of the Global Elite”

 

Bonus links: “Joe Ricketts Is a Walking Case for a $1 Million Maximum Income” (“A maximum income—and progressive taxation more generally—is less about redistributing income than about redistributing power, though the two aims go hand-in-hand.”; this article does make numerous contradictory statements, though, first stating by way of a quote the principles of Modern Monetary Theory, then immediately contradicting them with reference to “starving public coffers of funds”; an important distinction here is between state and local jurisdictions that cannot issue currency, and a sovereign federal government that can) and “How the Rich Stay Rich” (this interview makes a misleading reference to a book that actually also admits that revolutions can cause equalization of wealth, but the interviewee seems to follow a similar defeatist line of thinking rebutted in War and Revolution: Rethinking the 20th Century, for example)