Outside Looking In

I hope to write more on a particular aspect of his piece at some point soon, but to jump ahead of myself I wanted to say that I really enjoyed North’s piece on heteronormity and Russell’s on Sally Ride. I am inclined towards agreement on both.

It’s a source of uncertainty when I am exposed to some of these issues. On the one hand, I am heterosexual. It feels a bit presumptuous and in some cases disingenuous of me to even chime in. I support gay rights pretty thoroughly, but my interests are not particularly aligned with them in the way that they are aligned, to some degree, with gender equality (though I am male, my household income depends on fairness to women) or male family-legal rights (though even this is hypothetical until I am confronted on the courts on some issue). It’s always different from the inside than it is from the outside looking in, and when it comes to gay rights, or racial civil rights, I am pretty thoroughly on the outside.

The most my contribution can make is “as a heterosexual male, I can say that I find this argument off-putting and this one convincing, and so if you want to convince heterosexual males, consider me a data point I guess.” I may extend beyond that to other heterosexual males I know, in some cases saying “I don’t find this convincing, but others do, so maybe you should run with it?”

Doing so runs the risk of straightsplaining, of course. The notion that it does – or it might – is one of the things I do find off-putting about it. Even as I agree, to some extent, that there is a sense of privilege that runs through offering counsel and perspective on things you are at best tangentially involved with to people that are inescapably involved in them. Of course, talking about this can come across as being all “ooooh, look at me, poor white heterosexual male claiming the victim!”

This is, of course, a rather natural conflict. Not too bad a one to have, in the grander scheme things. I hesitate, at least a little, to cheer Russell and North on for saying what I am in less of a position to. Yet I am, of course, glad that they are saying things and opening up these avenues of conversation where I am invited (despite whatever discomfort I might feel) to participate. The line between that, and the unseemly enthusiasm that (for instance) some conservatives have when an African-American speaks out on the problems of the African-American community, is one that’s hard to pin down.

Ice Cream Sandwich

My chief complaint about the new “Ice Cream Sandwich” Android 4.0 OS that recently installed itself on my phone is that it’s extremely easy to stack icons for apps on top of one another, and rather difficult to subsequently separate them.

…Oh, and the need to swipe my finger just so to answer an incoming phone call. Aside from that, it’s great. I mean, why would I want to answer phone calls with my phone. That’s not what phones are for anymore.

…Oh, and it chews up my phone’s battery about twice as fast as the old OS, which seemed to work just fine. I used to get 36 to 48 hours at a charge, now I’m down to 12-18.

…And the install seemed to wipe out all my custom ringtones. So let’s see:

  • Icons stack too easily
  • Icons don’t unstack easily at all
  • Awkward to answer phone calls
  • Wiped out old ringtones
  • Battery hog

Other than that, yeah, Ice Cream Sandwich is really cool. Totally worth the half hour it took to download and install. You’re gonna love it.

The Great Cases, No. 5: Johnson’s Lessee v. McIntosh

When we consider the history of the early United States, it’s easy to think of the Founders’ failure to resolve the issue of slavery as a moral failure on their part (despite the admiration that they otherwise amply earned). Certainly slavery was a ticking time bomb and their solution to it was to kick the can down the road and leave it to future generations to solve. Which they didn’t, it took our traumatic civil war to do that.

But Johnson’s Lessee v. McIntosh demonstrates that slavery was not the only conundrum to which no comfortable moral solution could be found. We need not condemn John Marshall and his Court too harshly, though, since I scarcely doubt we could have done much better today and as I conclude, there is a logical legal issue compelling a result that otherwise seems awful.

Continue Reading

The Intangibles Of The Gender Gap

It is remarkably easy for men to believe that the gender gap is primarily a function of life choices and that, when the rubber hits the road, there isn’t actually all that much discrimination. It’s true that the realities of the situation are more complicated than employers saying “Hey, it’s a woman, we’ll pay her 25% less.” There are all sorts of confounding factors. Men are often more attracted to riskier, but more rewarding career paths. Women are more likely to be attracted to public jobs, which pay less but have other benefits. It’s true that women are more likely to take time off for kids, more likely to take career hits by relocating for their husbands’ jobs, and less likely to put in long hours or view their career as central to their identity. It’s also true, of course, that these things are often a product of social expectations and norms.

To be perfectly honest, I am skeptical of “equal wage” laws as such. I remain, however, very cognizant of the problem. It’s something that I used to be too dismissive of. Then I married a doctor and suddenly our financial well-being suddenly depended on her getting a fair shake in the workplace. It’s probably not entirely non-coincidental, but I certainly started noticing more stuff that has given rise to questions of how fair a shake women actually get. Nothing opens one’s eyes like self-interest.

Though she works in a field that is populated with a lot of women, my wife has nonetheless been at the receiving end of situations that, as a man, I’ve never been confronted with. Back when she was in Deseret, there were a few male doctors that would only sparingly refer to her by her honorific, including in front of patients. Sometimes Dr. Himmelreich, but sometimes Clancy. This may seem like a minor thing, or that she’s getting uptight about being called “doctor,” but she did work every bit as hard for that title as the men did, and they did not seem to slip up with men, regardless of whether nor not there was an attending in the room. When she was in Cascadia in a fellowship, she had a (Mormon) resident continually call her Clancy on the job, in front of patients.

Now, Clancy can make a big deal of this or she can let it slide. If she lets it slide, she runs the risk of being perceived as less than a doctor. As a woman, and as a young-looking woman, this is a significant liability anyway. She is and always has been very frequently mistaken for a nurse. Being called Clancy doesn’t help. Of course, if she makes a big stink out of it, then she’s the woman who is making a big stink out of something trivial. Maybe one is the right answer, maybe the other is, but she and her female colleagues seem to have been confronted with it more often than the male colleagues. When Clancy is trying to convince a patient of what to do, these sorts of things do make a difference.

Some instances of sexism are really quite well-intentioned. There are a number of older male doctors who are simply trying to help. They’re taking on a “protective” role. Sometimes, though, this cam come across as second-guessing – especially when it’s done in front of the patient. And once again, Clancy has the choice of whether to confront this head-on or let it slide. If she confronts if head on, she runs the risk of being kind of a bitch to a veteran who is only trying to help. Yet, by doing nothing, her professionalism is undermined by being treated like a resident or medical student. Granted, she is a youngish doctor, and I can actually understand the desire to tutor, but this sort of thing happens in the obstetrical field as much as anywhere else, and she has more obstetrical experience than the vast, vast majority of family doctors (she’d delivered almost a thousand before she got out of training). And, once again, this is something that does not appear to be happening to the male doctors, even those without her level of obstetrical experience.

A few jobs back, in Deseret, I worked in a department that had two teams. The first team was more technical in appearance (using a bastardized XHTML), the second a little more secretarial in nature (formatting through work then converting to code from there). The former team sometimes paid more than the latter (almost never less), and was also the easier and less aggravating job. It was also staffed with men. Some of this was quite logical. They were hiring people with IT backgrounds for the XHTML team. People with IT backgrounds tended towards being male. It was notable, though, that when a woman applied that had the experience, they’d still tend to put her with the latter team. This wasn’t illogical, either, since it was genuinely felt that they’d be more comfortable working with the women than the geeks.

This wasn’t 100% percent. There came a point, though, when we were looking at two teams combining for 30 people and there was not a woman on Team A and not a man on Team B. It came up during a meeting of the leaders of the teams (I was the leader of the XHTML team by this point). There was an honestly “How did we get here, moment?” We sort of tracked back all sorts of decisions that had been made along the way… John worked on Team B and asked to be put on Team A, since we liked John we put him on Team A, but had to move someone from Team A to Team B and we chose Suzie because Suzie was always spending her spare time with Team B anyway… it was usually along these lines. It was never a desire to have the teams so segregated, but 1,000 individual choices lead us to where we were, just relieved that nobody was going to sue.

That’s the intractable part of it all. Even if you can get rid of any explicit decisions that are made, you’re still dealing with a lot of dynamics that are as likely as not to lead to particular results. If we’re looking at gender, it’s results that often appear to be favorable to men and unfavorable to women, more often than not. It’s often, though, not something you can entirely hang your hat on. It’s 100,000 decisions, to let John transfer and ask Suzie to take his place, to figure that Martha would “fit in better” on Team A, and so on. Decisions that, as often or not, female employees are very accepting of. Of course, they might be accepting because they’ve been more socialized to get-along-go-along and that if they decline to do so it might be viewed differently than a guy doing the same. And if they thought that, I could hardly blame them. I don’t blame women for requesting raises with less frequency than men, yet there’s no easy solution to the problem.

To repeat, there’s no easy solution to the problem. When I left the Deseret employer, I was supposed to be replaced by a woman as the lead. She would have been a disaster, and there were people (including women) threatening to quit if she got it, but it was going to be hard not to give it to her. Fortuitously, and perhaps not coincidentally, she and her husband both got a drug test, which they failed, solving a lot of problems. The gender problem was noted by this point, and we looked around to see if there were any other women to take my place. There was, it turned out! Someone we might not have noticed had we not been already thinking along those lines, but once we thought of her it was perfect! She turned the promotion down. I was replaced by a guy. There were likely 100,000 decisions made along the way that lead to that result.

And so it remains one of those things that there are no easy solutions for. Men and women are treated differently. Men and women make different decisions. Men and women make different decisions because they are treated differently. Men and women are treated differently because they make different decisions. Men and women respond differently to different situations. Men and women are put in different situations to respond differently to. All of which falls under the best case scenarios. I have over 1300 words here, and yet still believe that I left out far, far more than I put in.

California’s Ill Elephant

While it’s been a couple of years since I started thinking of Republicans as “them” and not “us,” I nevertheless bemoan their complete collapse, because without a viable opposition party at the state level, Sacramento will never work towards finding solutions to our problems and there will be no check against corruption. But the fact is, the Republican Party in California is approaching zombie status.

For those of us watching California politics, this is old news. But now the nation knows about it because yesterday, the Gray Lady ran a piece earning some buzz about the California Republican Party, although mostly in the form of scorn from conservatives condemning it as concern trolling. They are too quick to dismiss it, and the Golden State as a whole suffers from their misjudgments. The ten or so of them who read this may be too quick to dismiss this post — but I am a persuadable voter, and I’m going in to some detail here about how I can be won back, so I’d hope to earn a response other than a cavalier dismissal of my thoughts. Continue Reading

The Norwegian Island of Calm

A year ago, Norway suffered a mass spree killing at the hands of a sociopath with firearms. Seventy-seven people, many of them teenagers, were shot to death and the killer remains chillingly unapologetic.

The Norwegian people underwent a massive national outpouring of grief, one shared around world for a time. They were stunned, then angry, then simply saddened. But Norway is not the United States. Continue Reading

Why I Did Not Profile Dartmouth College v. Woodward For The Great Cases

Decided in the same year as McCulloch v. Maryland, Trustees of Dartmouth College v. Woodward is often studied by law students for its interpretation of the Contract Clause and the Court’s ruling that states may not interfere with private contracts. In essence, the state of New Hampshire tried to turn Dartmouth into a public university, receiving public money and with its governing board appointed by the Governor of the state.

It’s also of more recent interest because Dartmouth argued, and prevailed, on the point that private corporations do not need to justify their actions as benefitting the public — even if the government has granted a charter to the entity in the first place. This is so even though there was no body of stockholders to whom profit could be distributed (the concept of a not-for-profit corporation was still in its infancy) and despite the grant of Dartmouth’s charter by the King before the Revolution, thus involving the government. The transaction to create the college was ultimately one amongst private parties to govern what they would do with their money collectively, and the state had no power to interfere with that transaction.

But I’m not going to do this case in detail, because the point about how corporations do not need to justify their actions based on the public interest is the one that’s most interesting to present-day debate to the point that it would overpower any historical insight the case itself might lend, and the point about impairment of contracts (and thus the evolution of U.S. law) was already covered to my satisfaction in Fletcher v. Peck. So I don’t see much clarity to the creation of modern America that will come from an analysis of the case. The fact that the opinion uses my favorite impossible Scrabble word, “eeleosymanary,” is a nice bit of color but insufficient to justify all the work I put in to these things.

Finally, the Court fragmented somewhat in Dartmouth College, with opinions by Justices Marshall, Washington, and Story all reaching the same conclusion but by different routes, which in my mind creates a complexity of legal reasoning that overbalances its impact on our history and culture derived from the case. If you want to read the whole case, by all means do it, for you will profit from doing so.

But for my project, I’ve nearly completed the next case in the series, which comes about five years after McCulloch and Dartmouth. A special shout-out is coming to folks from the Prairie State later this week.

(Image source here.)

Monday Trivia #68

It’s the highest in Louisiana and the lowest in Idaho. The numbers change from year to year (I’m looking at 2011), but high is usually high and low is usually low. Idaho and Louisiana did not move between 2010 and 2011.

After Louisiana is Maryland, Rhode Island, Nevada, Arizona, DC, New York, Connecticut, California, Georgia, Oklahoma, Colorado, Alaska, Missouri, Florida, Mississippi, Kentucky, New Jersey, Texas, Delaware, New Mexico, West Virginia, Montana, Illinois, Kansas, Alabama, Michigan, Washington, South Carolina, Nebraska, Tennessee, Arkansas, Oregon, Pennsylvania, Massachusetts, New Hampshire, Indiana, Iowa, South Dakota, Hawaii, Wyoming, Wisconsin, Ohio, Utah, Virginia, Minnesota, North Carolina, North Dakota, Vermont, Maine, and lastly but not leastly (okay, actually leastly in this case) Idaho.

The Blogger’s Morning

I will not stress about the summary judgment motion. It will wait until Monday. If I repeat this to myself long enough, it will become true.

For now, I can sit in my back yard and enjoy the finches and sparrows that come to feed here. The finches in particular are enjoyable because they never stop chirping and the males have these brilliant red feathers all over their heads.

The morning is yet cool, and my coffee is corrected with an ample dash of Bailey’s. There is no wind and little traffic, a bright clear blue sky and fresh air.

I may devote my writing either to further contemplation of a delicious and challenging exchange with a respected colleague on the blog, or re-open my next installment of my Great Cases series. Since the next case is a rather dreary one which has a result that sits logically and morally poorly with me, there is some dread to going in the second direction. Nothing like the dread of approaching a summary judgment motion. But no, that must wait until Monday. This is Saturday. My time, not my client’s.

It’s more than three hours before I need to meet my friend for a movie and the muse is flirting with me. I shall ask her to dance.

Good Luck Mr. Gorsky

At the moment of this post’s publication, in 1969, human beings began walking on the surface of the moon, for the first time — and they came home safely. That’s a pretty damn remarkable achievement, and one still worth celebrating today.*

Recall that between the U.S. and Soviet space programs, eighteen people have died while on manned spaceflight missions. It takes cojones to strap yourself to a thirty-six story tall explosive device and ride it literally off the planet. It takes a lot of smarts, from a lot of people, to get you back home to tell your friends about what it was like.

Neil Armstrong, Edwin Aldrin, Charles Conrad, Alan Bean, Alan Shepard, Edgar Mitchell, David Scott, James Irwin, John Young, Charles Duke, Eugene Cernan, Harrison Schmitt are the men who walked on the moon. But let’s send a special callout to Michael Collins, Richard Gordon Jr., Stuart Roosa, Alfred Worden, Thomas Mattingly II, and Ronald Evans, who risked their lives all the same as their colleagues, but stayed up in the modules while other guys got all the glory.

All receive this blog’s Big Brass Ones Award.

* But which we may not use as an excuse to rest upon those laurels. Today and tomorrow bring new challenges. Do we need to go back to the moon? Maybe not. But we do need to not turn our eyes and aspirations away from the heavens — the future is up there.