The Laboratorium
December 2002

This is an archive page. What you are looking at was posted sometime between 2000 and 2014. For more recent material, see the main blog at

Political Predation

When a government can remain in power by forming coalitions . . . and when it can use that power to seize revenues from those outside its core constituency, then no group can afford to withhold its political support, for fear of becoming the object of political predation. Redistributive local rivalries can produce a pattern of politics in which citizens compete to back the government in power, thus freeing it from the restraints normally associated with political accountability.

Robert H. Bates, Prosperity and Violence 112 (2001). The passage is about Ghana, but it instantly made me think of Republicans.

Best Present Ever

The Time of Our Singing isn't officially due out until January. But my ever-resourceful stepfather managed to track down an advance reviewer's copy. Thanks to this exquisite timing, not only do I have the new Richard Powers novel in my greedy, grubby little mitts, I also have no idea what it's about. It's also a thick momser, at 600-plus pages.

This is going to be good. Full report soon.

Celebrity Corrupts, Absolute Celebrity Absolutely So

Before our eyes, Catherine Zeta-Jones is turning into Kirstie Alley.

Back-Tracing the FBI

Ever wonder how the Homeland Security Apparatus filters and evaluates potential terrorist threats? A recent article ( provides a none-too-reassuring look at an example of the system in action While we don't have access to the FBI's internal decision-making process, the external evidence paints a fairly damning picture.

Our story begins at, ("your online anarchist community), which runs a fairly open news wire for activists. Back on October 19, a user by the name of "Every Day a Circle Day" posted a story calling for a "World-Wide Week of Action Against Warmongering" in mid-December. The article suggested sit-ins at defense contractors, defacement of newspaper boxes, and torching military recruiting centers, among other ideas. It's worth noting that if you spend much time on Infoshop, your local Indymedia, or another protest-themed site, you can't throw a brick without hitting a) lots of posts like this, and b) lots of people saying "violence is never the answer" in reply.

In any case, other than a couple of curious comments posted by folks looking for (and not getting) more details, the story sat around for a week. On October 25, it went out over A-Infos ("a multi-lingual news service by, for, and about anarchists") in a straight cut-and-paste job. On November 11, parties unknown did a similar cut-and-paste job (given the line-breaking, it was almost certainly copied from an email) in placing the story on two Canadian Indymedia sites, where the locals promptly ignored it (3 and 4 comments, which is almost as few as the average LawMeme story). From there, it dropped off the radar entirely . . .

. . . until December 4, when the FBI deemed the threat serious enough to send out an alert to thousands of security professionals. ASIS International ("advancing security worldwide") put the alert on its web site on the 10th, as one of seven advisories, spanning the last three months, listed on its home page. At this point, reporters started dialing up some very confused anarchists. These phone calls were the first time most of the interviewees had heard of the "Worldwide Week of Action." All in all, the furor over trying to get a scoop on this new terrorist "threat" has burned up more media resources than anything actually done as part of the Week.

Where this story flips from comic to tragic, of course, is the FBI's involvement in the panic. The alert was obviously written by someone copying key phrases out of one of the posts and slapping on some FBI boilerplate. It was also a warning about attacks that not only didn't happen but fairly clearly weren't going to happen. After all, the warning involved threatened violence by anti-warmongers. If that weren't enough, these are also folks supposedly sophisticated enough to do something anyone besides themselves would care about -- and yet dumb enough to announce their intentions in posts on some of the most public (and most-easily monitored) activist sites in existence. Why is this call to action different from all other calls to action? The mind boggles.

The question that has me scratching my head, though, is this: was the FBI's delay due to the fact that they didn't consider Infoshop a credible threat source, but did fear Indymedia Alberta? Or does it simply take the FBI five weeks to turn piece of chatter into a concrete warning? Either way, we're back to one of the basic realities of our system of national security. The FBI knows how to catch criminals (and how to tap the phones of civil rights leaders), but they blow chunks when it comes to processing intelligence. That's the CIA's institutional competency (well, that, and coming up with Boris-and-Natasha-style can't-possibly-fail schemes to topple leftist governments, that, well, usually fail), and to a lesser extent, the NSA's (well, that, and trying in vain to squelch strong crypto). Separating terrorist wheat from activist chaff is, fundamentally, a desk job. And which cops get the desk jobs?

The bad ones.

Chindew Hindew

There's another howler in this week's edition of The New Yorker, this one perpetrated by our old friend Alec Wilkinson. Near the end of a characteristically unobservant "Talk of the Town" piece about photography at Chinese weddings, he blurts out:

Her expression changed only twice. Once, when the photographer said something that sounded like "Chindew, hindew," she smiled.

Now, I don't know Chinese, and I know still less about Chinese wedding photography. But it doesn't take a Chinese linguist to observe that the photographer almost certainly said something more meaningful than "Chindew, hindew." After all, the sounds are all found in Chinese. Try writing it as qin du hin du and you even have something that looks like pinyin. I'd be shocked if it didn't mean something appropriate in the context of having one's picture taken.

Not that I hold it against Wilkinson that he doesn't speak Chinese. Reporters don't have to know everything before they start on a story. I do hold it against Wilkinson that he didn't try to find someone who does speak Chinese to translate at least that much for him. Reporters are supposed to find things out, after all. I mean, come on. How did this one get past Wilkinson, his editor, and his fact-checker? Did no one at "the magazine" feel even the slightest curiosity about what short remark might cause a blushing bride to smile on a cold day?

Louis Menand Loses It

Louis Menand has an article in the December 23 issue of The New Yorker that defies explanation. Crack cocaine, perhaps, or a game of Truth or Dare gone horribly wrong. His nominal subject is Dr. Seuss, but the article reaches such heights of literary pretension that one suspects the usually-astute Menand of some sly act of parody. How else to explain such howlers as those excerpted here?

The decision to turn "The Cat in the Hat" on the trope of the mater abscondita is not without interest, coming, as it does, from a writer who chose his mother's maiden name as his pen name.

The cat's improvisations with the objects trouvés in the home he has invaded are obviously an allegory for his creator's performance with the two hundred and twenty arbitrary words he has been assigned by his publisher. The cat is a bricoleur. He has no system -- or rather, his system is to have no system.

"The Cat in the Hat Comes Back" is the "Grammatology" of Dr. Seuss. It is a book about language and structure, those Cold War obsessions. That the "Cat" books' appearance coincided with the publication of Noam Chomsky's "Syntactic Structures" (1957) and Claude Léi-Strauss's "Structural Anthropology" (1958) is, as they used to say during the Cold War, no accident."

These semiotic felines do exactly what a deconstructionist would predict: rather than containing the stain, they disseminate it. Everything turns pink. The chain of signification is interminable and, being interminable, indeterminate. The semantic hygiene fetishized by the children is rudely violated; the "system" they imagined is revealed to have no inside and no outside. It is revealed to be, in fact, just another bricolage. The only way to end the spreading stain of semiosis is to unleash what, since it cannot be named, must be termed "that which is not a sign." This is the Voom, the final agent in the cat's arsenal. The Voom eradicates the pink queerness of a textuality without boundaries; whiteness is back, though now it is the purity of absence -- one wants to say (and, at this point, why not?) of abstinence.

Jackson’s Eyes

About halfway through my second Two Towers viewing, it hit me that the visual key to the movie is eyes. Peter Jackson loves actors with expressive eyes; he loves close-ups on those eyes; he loves eyes, period. The Two Towers may well be the closest thing to eye-fetish porn I have ever seen.

Here's a partial list of shots and scenes from The Two Towers that are all about the eyes:

  • Sauron's embodiment is as a giant electrical eyeball (with an extra-creepy vertical pupil).
  • Gollum is also just about entirely eyes. Those watery blue eyes are each about the size of his mouth.
  • Gandalf's quasi-near-death experience starts with a zoom into one of his eyes.
  • When first we meet Theoden, the blank stare of his vacant, half-closed eyes dominates his aged and fading face. The eyes, of course, are the first thing to come back.
  • Frodo has a good scare when a dead warrior's eyelids flick open to reveal eyes of solid white.
  • Frodo also has a great moment in Osgiliath when his eyes roll back in his head.
  • The elves don't blink much. Ever notice that one?
  • What's the first thing we see of Treebeard? That's right, his startling brown eyes.

Of course, just about every major character in the movie is played by an actor or actress with remarkable eyes. People have mentioned Miranda Otto, Viggo Mortensen, Elijah Wood, Christopher Lee, Ian McKellen, Cate Blanchett, and Bernard Hill for their ocular contributions, but they're by no means alone. Even Brad Dourif and John Rhys-Davies get their eye shots. (Not to be confused with Eyeshot, of course).

I'm thinking that this eye mania has to be deliberate. Right?

A Case Study In Memetic Epidemiology

Mickey Kaus today has yet another item on the (possible) politico-blogger contribution to the Trent Lott auto-auto-da-fe. The idea is that emails from Sidney Blumenthal provided the crucial impetus that got various folks hot and blogging about the affair. Kaus credits Glenn Reynolds with calling such email "the 'dark matter' of the blogosphere."

Which is all well and good, except that I know where Reynolds got the phrase. He got it from me. Where's my citation, is what I want to know?

I'm pretty sure about this claim. You see, for the Blogs conference last month, I drove out to the airport to pick up Reynolds and Denise Howell of Bag and Baggage. Reynolds' plane got in an hour before hers, so we talked about blogging for a while. During that conversation, I referred to the "dark matter of the blog universe;" Reynolds repeated the phrase and said that he hadn't heard it before and liked it.

There are two caveats to my claim of priority. First, I was using the phrase to talk about blogs, not email. I was thinking of the zillions of blogs that we don't read but are still out there. Any one person's media intake is restricted to a very small subset of the blogs out there, and yet those other blogs, vastly more numerous than the ones we do read, still exert massive gravitational pulls. So Reynolds has introduced a mutation into the dark matter meme; he's turned it loose with a different association.

And second, I didn't come up with the phrase either. If you search on "dark matter blog," you don't get many hits, but you turn up enough to reconstruct my reading. I got the phrase from Kottke, who got it from a Steven Levy article no longer on the web.

So much for my claim to fame. I am, however, proud to have been the agent of contagion between two vastly more famous people. I'd like to think that, but for my intervention, this meme would never have crossed from the general-interest cultural-blogger world into the more influential but also far stranger political blogger world. Some days, I see this as my role in this world. I see people trying formulate thoughts, and I put them in touch with the ideas they need.

The Two Thoughts

First, you've been in law school too long when your first thought on seeing the destruction of Isengard is "Okay. now I understand the holding in Rylands v. Fletcher."

And second, it's no Fellowship. It's a great and striking film, with more passages of brilliance than I can remember. But a few details were still out of place, and it doesn't always rise to the same level that Fellowship maintained for its full length. The Two Towers is still one of the best epic films ever, but it comes up just a hair or two short of its much-esteemed predecessor.

Lame Joke Alert

As noted above, Trent Lott is in trouble. How much trouble? A whole Lott.

My Question Is This:

Okay, so Trent Lott is in a lot of trouble for thinking that Strom Thurmond should have won in '48.

What I'd like to know is: does Strom Thurmond think Strom Thurmond should have won in '48?

Not Cool, Folks

Sometime this week, parties unknown filled my garbage pail with their trash. Perhaps I should say "party unknown," because it was all beer bottles and empty junk food bags. They pulled the same delightful trick on most of my neighbors: just about every garbage pail for our building was full of white bags with red drawstrings.

Say it with me, folks: "NOT COOL!"

Also this week, the Republican Club at school held a Toys for Tots drive. They tabled in the cafeteria collecting donations. Apparently, a fair number of people came over to the table and pulled out their checkbooks, only to put them away again upon noticing who was sponsoring the event.

Say it loud, say it proud: "NOT COOL!"

Given this recent spate of poor form all around me, I've decided not to post my latest essay. Although I think it makes a valid point, there's no way for it to make that point without my harshing on one particular individual along the way. And as much as I think someone ought to go house on him, I think also that the world could use a respite from house-going this weekend.

Go,Husband, Go Bear

My professor for Constitutional Law doesn't like Roe v. Wade. Not that he would have preferred to have it come out the other way -- he just thinks the Court got to its result through some questionable reasoning. If they'd come at it the right way, says he, the opinion would have made more sense, the right wing wouldn't have been as outraged, and the holding would have been less vulnerable to chipping away at the edges.

Now, there are two possible ways to get to the result in Roe. You can do what the Court did and ground the decision in a notion of privacy rights. If you do that, you see abortion as a personal decision that affects a woman's body; prohibiting abortion becomes a severe bodily intrusion. The appropriate comparisons are other privacy cases, especially the sexual ones. So you try to rationalize your holding with the case law on contraception, sodomy, and adultery.

On the other hand, you could see abortion as an equality issue. A man who takes part in the fertilization of an egg doesn't have to give up anything more to bring the kid to term. He loses nothing if abortion is outlawed. A woman, on the other hand, will be conscripted into physical service for nine months of her life. Once you take this perspective, you group abortion cases with other sex equality cases: you'll try to fit it in with your rulings in cases on the draft, sex discrimination (especially discrimination against the pregnant), and single-sex education.

In actual fact, Roe was decided on privacy grounds, and the Supreme Court has never looked back. My professor's theory is that life would just be better if the Supreme Court had used an equality argument. In order to make the privacy argument, he maintains, you have to declare the fetus a total non-person and conceptualize its interests as the state's interest in potential life. (If anyone cares about the details, email me and I'll write them up. I'm already in the middle of a digression from a digression). This part of the opinion, he says, completely outraged the religious right, led to Reagan's election in 1980, and has viciously politicized the judiciary.

But he doesn't think that the equality argument is better because it would have led to better political consequences. No, he thinks it's an intrinsically better argument. His whole thing here is that while Constitution doesn't mention "privacy," it has plenty to say about "equality." We've got that whole deal about "equal protection of the laws," for starters, plus a whole amendment about how important women are. You can get an awful lot out of these clauses, including tenure.

On the other hand, privacy is sort of a modern synthesis. Oh, sure, there's that bit about being secure in your person from unreasonable searches and seizures, but that just means that you can't be deprived of your epilepsy medication. Sorry, bad joke. The point is that you can't easily reduce "privacy" to specific Constitutional text. You have to sort of wave your hands and talk about the general idea. (But note that court decisions were respecting this "penumbral" right to privacy long before anyone had articulated that such a right might exist.)

And this kind of waving is utterly anathema to my professor. His whole theory of law, democracy, and what to eat for lunch is based on the text of the Constitution. The man carries a copy of the Constitution in his pocket wherever he goes. If he's ever shot, I suspect the Constitution will save his life. If it's not in the document, it's not there. And if you want to make Constitutional decisions on any basis other than what's in the document, you're stupid.

A lot of people are stupid, by this standard. John Paul Stevens ("getting senile"), William Brennan ("didn't really belong on the Court"), Stephen Breyer ("not really up to this kind of reasoning"), the entire 1979 Court ("all nine of the Justices miss this basic point"), and the entire current Court ("none of them could get a job as a professor of Constitutional law here"), for example. And the Roe Court was especially stupid for basing such an important opinion on its previous privacy decisions, rather than going back to the text of the Constitution.

Who's to blame for this debacle? Well, the Court itself for not being smarter and going to the Constitution. ("Let's go to the Constitution!" says the Warner Wolf voice in my head. Wolf's 1980 defection from ABC to CBS made my Contracts casebook. I wonder whether anyone else in the class was as amused to see his name pop up as I was.) And also the lawyers who didn't make the document-based arguments in their briefs.

And so, he explained, Sarah Weddington was 26 when she argued Roe in front of the Supreme Court and won. But she made the privacy argument, not the equality one. She'd taken one class in constitutional law, at the most, said Professor Constitution. She had seven votes going in; a potted plant could have argued for Roe and still won.

Fweeeeee! Red flag on the play. There's a problem here. Weddington won. What more, precisely, was she supposed to do? On what basis can you criticize a lawyer who wins? She should have made the equality argument, even though she was a facing a Supreme Court that was accustomed to the privacy viewpoint? She should have reduced her client's chances of winning in the hopes of setting a better precedent? She had an obligation to the theoretical clarity of Constitutional interpretation that outweighed her obbligation to her client? Is that what you're getting at?

Now, I did put this question to him, and he did acknowledge that a lawyer's first duty is always to the client, and he did give a careful and thoughtful answer about how to make more document-based claims incrementally. I'm not sure that his splitting-of-the-difference really holds together, but I didn't press him too much on it. That would have been dishonest of me.

You see, I don't believe in the basic canon of legal "ethics" that a lawyer's first duty is always to her client. Much like the similar rule of medical "ethics" that a doctor's sole obligation is to the patient before her, this arrogant bit of self-justification collapses under the weight of its own extremist zeal. The lawyer's first duty is to the client because clients shop around for aggressive lawyers willing to bend the rules. Caught in a race to the ethical bottom, the legal profession has chosen to take the "is" for the "ought." Much that is unfortunate follows closely thereupon. Lawyering as we know it is quite literally a mercenary profession; but it doesn't have to be. If we had better ethics, it might not be.

So, as much as I may disagree with the idea that the whole world should be based on the text of the Constitution and as much as I may take issue with some of my professor's claims, I can't really rely on legal ethics to keep him from demanding that lawyers argue their cases based on his theories. I don't like those ethics any better. So the best I can do is point out the contradiction. Then these two ideas can go at each other. Not that I really want either to win, but there will be some blood shed here. And whoever sheds it, I won't mind very much.

The way the joke goes is that a woman is out camping with her good-for-nothing husband when they're attacked by a bear. The husband is struggling with the bear, they're going at it hand-to-paw, and he shouts out to her to get the rifle. But she just stands there, looking on and shouting out:

"Go, husband! Go, bear!"

A final note. I'll have more to say about document-based interpretive theories at some later date. I'm more down with them than down on them. True, I think that a rich notion of "privacy" isn't wholly a modern invention and a Constitutional theory that doesn't take privacy seriously has some serious explaining to do. (Similar claims apply to free speech, which clearly means far more today than it did in 1791). But on the whole, there's something here worth serious attention. The Constitution isn't just a collection of clauses; it's also a system and a process of self-government. And when you pay attention to the close textual interrelationship of different parts of the Constitution -- as my professor does in his scholarship -- some fairly amazing insights emerge.

A Story in Every Sentence

The thing about studying cases as a way of learning law is that behind every case is a story. That story is almost always the story of how a situation that was once good went horribly wrong. The pages of a casebook provide a fair cross-section of human hubris, betrayal, confusion, and misery.

Sometimes, though, a case comes along and floors you with the way it retells that story. I came across one of those cases today. Well, actually, I didn't come across the case itself; I came across a citation to the case. But that citation is probably most devastatingly well-written citation I have ever seen. Even through the formalities required by the legal citation style, it tells the story of a tragedy in a single sad and knowing sentence.

The courts have been generous to patrons of enterprises, like carriers, which traditionally are subjected to a "high duty of care." . . . They have been less generous to customers injured in bank hold-ups, Boyd v. Racine Currency Exchange, 56 Ill. 2d 95, 306 N.E.2d 39 (1973) (teller under no duty to accede to robber's demands, when robber held gun to head of customer, plaintiff's decedent).

Harry Shulman et al., Cases and Materials on the Law of Torts 625 (3d ed. 1970).

And Did You Know?

If you eat a bowl of Jello or comparable flavored gelatin product and then fill the bowl with water and leave it for a few hours, something remarkable happens. The water absorbs the flavoring, the coloring and the sugar, leaving behind pure gelatin tailings.

A Brief Housecleaning

Okay. I'm back. Just handed in my first legal brief, which means I can once again use my computer without feeling like I ought to be working on the brief. Word informs me that I spent just over 36 hours of editing time on it, which is an awful lot in some respects, and awfully little in some others. Compared with, say, the 2400 billable hours many junior associates are expected to produce each year, 36 hours is nothing.

I would like also to note, while the taste of sleaze is still fresh in my mouth and before I become inured to my new coating of slime, what I feel I have learned from this assignment. I have learned two new ways to lie. (I'm not going to include all of the familiar techniques. Anyone who's ever prepared a resume knows about selective quotation; anyone who's ever taken a lab science course knows how to fudge an unruly data point.)

First, there's brazen but unwarranted optimism. There's something breathtaking about heading straight for your opponent's best case and claiming that it supports your position. Of course, it doesn't, but what the hell, you were going to lose on that point anyway, and you've kept any unfortunate hint of negativity from sneaking into your argument. These lies are fun; they stare back at you, daring you to keep a straight face.

Second, there's the magical muddle. You openly and forthrightly concede your opponent's point, but you bury the concession in the middle of a logically messy paragraph. The more subtle the mess, the better. Words that can shift between multiple meanings are especially helpful. You're not so much trying to refute the point as keep your opponent from getting anywhere with it. These lies aren't so much fun; by their very nature, they're hard to produce purposefully.

The key to both these tricks is to channel Aarfy. When Yossarian starts giving you a hard time, you just grin and nod and pretend like you can't hear a thing he's saying. You either keep on disagreeing or agreeing with him, no matter what arguments he advances, all the while sending the discussion around and around in fruitless dizzy spirals.

In any case, brief-writing is an exercise in repeated lying. There's no way around it when, at the end of the day, one side has a winning case and the other side has a losing case. The losing's side's well-paid lawyers are well-paid in proportion to their ability to deploy these tricks. And having just emerged from the belly of the brief, I can say that I understand much better now why lawyers are so universally loathed.

The Depth of Contract

Here we go again. What is it with the people in this class? The case we're discussing hinges on whether a church musician is employed by the priest personally or by the church. Well, two people in the class have sung in church choirs and a third is the son of a church organist.

Race to the Bottom

Imagine that you are an angry young student. Perhaps your name is Bakke, perhaps it is Grutter. You would like to live in a color-blind society. But when you are applying to the prestigious graduate school you wish to attend, the application asks you your race. The question is described as "optional," but you know, to a reasonable certainty, that if you answer it one way, you will be offered admission, but if you answer it another, you will be rejected. So you go ahead and check the "Black/African American" box. The Dean of Admissions may look at you funny when you arrive, but hey -- that'll be a lesson in how dumb racial categories are, anyway.

Except that you don't. Instead, you mark the "White" box, wait for your rejection letter, and file suit.

I'm confused here, I have to admit. As far as I can project, mass civil disobedience of this specific nature -- putative "Whites" self-identifying themselves as "Black" on standardized forms -- would wholly destroy affirmative action in this country, and virtually overnight. Even a few isolated instances, if publicized and appropriately litigated, would do enormous damage to the system. So why hasn't this happened? Why haven't whites with chips on their shoulders attacked the system of racial classification at its root: the moment of checking one box or another?

The power of this trick is that it gives middle-of-the-road pro-affirmative action liberals a truly painful choice. One the one hand, they can accept these self-identifications at face value, in which case affirmative action becomes practically useless because too many people self-identify as "Black." On the other, they can insist that these people are really white, and must be counted as such. But this position is politically self-destructive, because it essentializes and institutionalizes race in a way anathema to the basic liberal consensus on racial issues, in which discriminiation against racial minorities is an unfortunate historical holdover whose effects have yet to be undone. There are ways out of the trap, but they won't play well on TV. As a practical matter, faced with this tactic, affirmative action wouldn't have a chance.

Obviously, anyone who does something like this will be charged with rank hypocrisy. After all, the point of the protest is that you aren't the race you mark on the form. But these charges aren't going to stick. After all, you just claim you're playing by the hypocritical rules of the institution whose forms you're filling out. You'll also have decades of liberal rhetoric to rely on in refusing to let anyone else categorize you against your will.

So, once again, I ask, why hasn't the right adopted this tactic? Here are the answers I've thought of, none of which strikes me as genuinely convincing.

Ideological commitment: people who dislike affirmative action are too principled in their commitment to colorblindness to lie about race. They're willing to opt out of the system by skipping that part of the application, but to fill out the wrong box would be to adopt the logic of an immoral system.

I don't buy it. There are simply too many people who hate affirmative action, including some incredibly venal and mean-spiritied folks, for high principle to be credible as a common characteristic shared by all. But, conversely, I also don't buy . . .

Simple racism: people who dislike affirmative action are too principled in their racism to lie about race. The idea of claiming to be black is such a repugnant thought to them that they would never be willing to espouse such a tactic.

The same objections apply as above. There are plenty of people, people who self-identify with every conceivable ethnic group, who genuinely oppose affirmative action. Whether or not total color-blindness is a good goal or achievable, there are many who think that it is both.

Complex racism: people who dislike affirmative action don't want to go to a color-blind society. They find it a useful debating tactic, but they'd rather maintain a society with effective caste divisions (or gradually drive minorities away from the society entirely). Playing my civil disobedience game would force them into taking the rhetoric of color-blindness too seriously.

This is less severe a position, but I think it's also less plausible. People are willing to carry ideological fictions to remarkable extremes if they make effective progress on other issues by doing so. Nor do I think that exploding affirmative action in this way would really expose this sort of contradiction.

Tactical bias: people who dislike affirmative action associated civil disobedience with them. That's one of their tactics; we'd never do something like that.

Two words: Operation Rescue. The left has no monopoly on civil disobedience.

Timidity: so you mark "Black" on the form, and then you get expelled for lying in your application. So much for your medical education, eh? Compared with the get-rejected-and-sue method, this technique is just too risky.

Sure, except that a university that expels you for lying on a question about what "race or ethnicity you think best applies to you" is getting onto pretty shaky ground there. Politically, they've played right into your hands.

They're winning already: with the Supreme Court taking up the Grutter case, foes of affirmative action don't need to play the civil disobedience game. They can just wait for their ruling and walk away happy.

Sure, George, but what about the last twenty-five years? After Alan Bakke came within one vote of bringing the system down, surely someone would have come up with something better than just trying again on the same claim until enough justices retired.

It doesn't work: this trick has been tried, but it didn't work. The passer got caught, got expelled, sued, and lost on a doctrine that's not open to reasonable challenge. There are plenty of ridiculous doctrines out there, after all.

To this, I can say only: show me the case. If anyone has a citation or a news article or other documentation, I'm all ears. I'm also open to new theories more convincing than mine.

I should probably also note the point of this discussion, from my perspective. Among other things, I'd like to suggest that the standard liberal consensus on affirmative action -- as powerful as it may be at times -- has already surrendered too much to its conservative foes. This surrender may have been necessary to convince much of American society to go along with the program, but that doesn't make the position right in a moral sense. On this issue, as on so many issues, American society has shown a remarkable penchant for blindness and injustice.

Blindness, note, not color-blindness. That's how we got into this mess, after all.

Wrong Side of the Tracks

Until recently, I hadn't been to the neighborhood across the highway from me. It's a light industrial zone and not very picturesque, so I wasn't missing out on much. The most notable highlights -- and I'm not making this up -- were a mega-church and a strip club.

The Invention of Markets

Jack Grubman is a character torn from the pages of a Dickens novel and left to his hapless devices on the streets of an uncaring city. True, hapless schemers and social climbers, half comic and half tragic, dreaming of Society but ground beneath the wheels of Commerce, are a mainstay of many authors. But only Dickens would have had the cheek to dub his thwarted speculator "Grubman."

(Lizzie Grubman: any relation? I'm at once astonished and not at all surprised that her PR firm (don't click that link!) tries to make itself your home page).

Of course, the primary scandal in the Grubman case -- analysts hyping stocks to hoodwink small investors while earning the gratitude (and business) of the big boys -- is such common practice that its shock value is minimal. This sort of corruption is the business story of the year, which makes it no story at all.

Instead, it's the secondary scandal -- hyping stocks to get the analyst's kids into preschool -- that has news legs, not least because the means-ends ratio is so wildly disproportionate. After all, the school got a million-dollar donation (Grubman's annual salary, please note, was in excess of twenty million). The value to Sandy Weill of winning his boardroom fight was almost certainly many times that figure. The value to AT&T (and owners of AT&T stock) of having its rating artificially inflated was even larger.

That is, Jack Grubman, possessed of Awesome Cosmic Power, uses it to get his kids into preschool? ("Why, Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales!" I love having my books with me; checking a quotation against a book on your shelf is one of the great pleasures of life.) It's like, oh, using a chartered ocean liner to deliver a telegram.

Much ink has been spilled on this topic. "Spilled," that is, as in "wasted." Take, for example, Michael Wolff's The Price of Perfection, in which the word "education" appears exactly twice. Edging it out are such important issues as the ability of high-status private schools to ease parental marital strife, the "Platonic ideal" of dress codes, and "social currency." (It shouild be noted that this kind of piece is a favorite trope of New York Magazine; it alternates with articles about the terrible drug/sex/fashion/dust-bunny problem at these elite private schools. They do the same sort of thing with doctors and vacation spots: one issue brings an article on the 100 best plastic surgeons, while the next provides breathless horror stories of plastic surgery gone horribly wrong.) The article is useful_; it provides a illustrative snapshot, reflective at times, of the mindset behind nursery-school fetishism. But utility is not quality.

Katha Pollitt's Times Op-Ed on similar problems surrounding public-school admissions is better, if only in that Pollitt is willing to look beyond personal neurosis to the plight of the great majority of parents, for whom the competitive-admissions game is not an option. Although she never quite connects the dots, she points out that the quid-pro-quo game, in whose terms the private-school-parent Wolff already sees the entire educational world, is making inroads to public-school admissions:

The "hotter" the school or program, the more we prospective parents were told about the thousands of dollars parents donated for art, music and supplies, the "frills" that were vanishing from the system overall. A school's heat could be gauged too by the preponderance of white faces � principals, teachers, parent volunteers � in charge of these visits. At some schools you could measure the rising temperature by the increasing paleness of the students: the fifth grade might look like Trinidad, but the kindergarten looked more like Bavaria.

What do Manhattan parents do to get their little ones into the top public elementary schools? They do what I did: They get someone � friends with kids in the school, someone connected, someone famous � to put in a word, and they write sycophantic letters in which they profess allegiance to the school's educational philosophy, promise to work their tails off for the parents association and read their child French fairy tales at bedtime.

(emphasis added). I wouldn't be willing to stake my life on it, but I think I see what's going on here. Public schools, although not officially allowed to charge tuition or pick kids on the basis of parental wealth, are finding proxies for these factors. Involvement in the parents' association is a useful one: it redirects some resources from parents to schools. Of course, you can't condition admission on parents making donations or taking their kids' classes on field trips, which makes the whole thing a subtle and uncertain dance, but you can certainly urge prospective parents in one direction and see how eagerly they respond.

Or, more helpfully, look at the deal from the other end. There are parents who care deeply about their childrens' educational success, to the point of picking the perfect kindergarten and obtaining admission by any means necessary. These parents are going to be scoping out the admissions system with the piercing eye of a lawyer or a burglar, looking for pressure points and unlocked doors. Sooner or later, they'll find something, because even large bureacracies have needs. Maybe it's the PTA, or maybe it's the standardized-test advantage that private tutoring brings, or maybe it's having a kid with polished manners and a deferential air toward teachers. The specifics don't precisely matter. The point is that someone will find the right fulcrum, and once one parent has found it, others will follow.

To complete the picture, it suffices to note that rich parents are more likely to be in this position, and better able to play the game. More likely because they're under more parental-peer pressure to put their kids in the high-bragging rights schools (and, in a variant of William Langewiesche's argument in "Peace is Hell" in the October 2001 issue of The Atlantic Monthly, they have more untethered obsessive attention to overconcentrate on this one object). Better able because they have the money to spend hunting down the particular Snark the school happens to care about. The end result is that the elite public schools take on, step by step, all the unfortunate characteristics of elite private schools, even as no one quite understands why.

The "why" is quite simple, though, when described this way: a market is developing. Schools and parents each have resources desired by the other; they're working out ways to trade those resources. The market is best descrbied as a market in admissions slots; the goods offered in exchange for those slots vary, depending on the particulars. Money isn't actually the currency, although it's never far from the scene. It paces back and forth, restlessly, ready to convert itself into more useful media of exchange as the market demands. Where there are people with enough money (or power, or time, or any other resource), and where there are things (be they goods, services, laws, or anything else under the sun) that these people want, a market for those things will struggle to be born.

This principle is a general one; once you know to look for it, you see it everywhere. Employers put enormous pressure on colleges to stamp and differentiate their students (call it "credentialling" or call it "signalling," if you prefer). Where colleges putatively thwart that pressure by adopting flatter grading scales (note that grade inflation has substantially the same effect), students will find new ways to differentiate themselves -- hence the rise of the quadruple major and the ever-more-glowing recommendation letter. Where politicians can be bribed, businesses bribe them. Where politicians can't be bribed, businesses provide campaign contributions. Where campaign contributions aren't possible -- say, to non-elected administrators at federal agencies -- the (implicit) possibility of lucrative post-retirement private-sector employment becomes the carrot.

The point is that where the carrot does not already exist, it becomes necessary to invent the carrot, and this is what markets do. Innovation? Entrepreneurship? These are just buzzwords for the speculative process of dreaming up new vegetables.

Let's go back to the private-school shenanigans with which we started, keeping this principle in mind. Now, admissions slots to selective private schools cost good money, but tuition money isn't the real market here. Tuition is invariably set well below the level a school could charge and still fill its class. To the objection that they'll have fewer applicants if they raise tuition, the reply is that by increasing financial aid awards by the amount of the tuition increase, the school could retain those applicants it felt were actually adding to the academic quality of its student body. There's some price discrimination going on here, sure, but as the Grubman example illustrates, it pales in comparison to the price discrimination in the "hidden" market.

What keeps it from being a "real" (by which, I must confess, I mean "interesting") market is that admissions slots aren't property. You can't resell them, for example. Thus, the Jack Grubmans of the world can't just offer to pay their cool million to the parent of a successful applicant. Nor can they simply go to the school and offer a million, straight up. The normative constraints on education say, simply, you can't do that. For some strange reason, when a school openly auctions off places, its reputation among potential parents suffers, even when those same parents have purchased their kids' slots through the same back door as Jack Grubman. It becomes necessary to find roundabout ways of accomplishing the same goal, and thus this secondary market arises, a market populated by Sandy Weill and other shady middlemen.

(Note that it can't even be the presence of some number of kids who got in under their own steam that makes parents prefer the covert system. A school could simply announce that it was holding 80% of its slots for "real" students and auctioning off the other 20% to "rich" students (who met some minimum academic standard, of course), and end up enrolling exactly the same class for exactly the same amount of money. What's at work here is the same sort of societal preference not to talk about certain matters that pervades medical ethics. These preferences may or may not be legitimate (I've seen quite convincing arguments both ways, and I'm not yet willing to commit myself), but they're quite real, and it becomes necessary to take them as given, if one is to talk sensibly about such issues.)

There's another term for this sort of transaction. (No, not "black market;" the illegality here has nothing to do with the involvement of a school.) We call this sort of shell game "money laundering." Jack Grubman has piles of money, perfectly good cash money American except that there are certain things on which he cannot spend it, certain things which he desires very much. So Jack Grubman takes his piles of money and he finds a respectable-looking businessman and says to this businessman, here, take from me these piles of money and make them not appear to come from me, so that I can obtain these certain things which I desire very much but cannot spend my own money to obtain.

This respectable-looking businessmen then takes Jack Grubman's money (to be precise, in this case, the "money" involved was, in the first instance, a combination of those other familiar universal currencies, power and information), does some fancy tricks with it (invests it in a corporate battle, then draws some power from a different account and converts it into a million-dollar check) which result in it emerging at the other end, sqeaky-clean, where it is then used to obtain for Jack Grubman those certain things he so desparately desires.

Except that -- and here is where I detect the hand of Dickens at work -- it's not so clear anymore that Jack Grubman has really done right by his kids' educational futures. After all, the 92nd Street Y's programs stop after preschool. If you were the admissions director of a selective private school looking over the Grubman files, would you want to risk the potential publicity disaster of admitting his kids to your school? Sure, you can say that no palms were greased and no side deals struck, but is that claim really a negative you'd like to have to prove?