新浪博客
Ethics, Politics and the
Law
The ethical judgments of the
Supreme Court justices became an important issue in the just
completed term. The court cannot maintain its legitimacy as
guardian of the rule of law when justices behave like politicians.
Yet, in several instances, justices acted in ways that weakened the
court’s reputation for being independent and
impartial.·
Justices Antonin Scalia and
Samuel Alito Jr., for example, appeared at political events. That
kind of activity makes it less likely that the court’s decisions
will be accepted as nonpartisan judgments. Part of the problem is
that the justices are not bound by an ethics code. At the very
least, the court should make itself subject to
the code of conduct that
applies to the rest of the federal judiciary.
Among the court’s 82 rulings this term, 16 were 5-to-4 decisions. Of those, 10 were split along ideological lines, with Justice Anthony Kennedy supplying the fifth conservative vote. These rulings reveal the court’s fundamental inclination to the right, with the conservative majority further expanding the ability of the wealthy to prevail in electoral politics and the prerogatives of businesses against the interests of consumers and workers.
¶It struck down public matching funds in Arizona’s campaign finance system, showing again a contempt for laws that provide some balance to the unlimited amounts of money flooding the political system.
¶It made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating.
¶It tore down the ability of citizens to hold prosecutors’ offices accountable for failing to train their lawyers, even when prosecutors hide exculpatory evidence and send innocent people to prison.
¶It issued a devastating blow to consumer rights by upholding the arbitration clause in AT&T’s customer agreement, which required the signer to waive the right to take part in a class action.
¶Finally, in the complex Wal-Mart case, the conservative majority, going beyond the particular issues in that case, made it substantially more difficult for class-action suits in all manner of cases to move forward.
These and other decisions raise the question of whether there is still a line between the court and politics, an issue since the Republican-led Rehnquist court decided Bush v. Gore in 2000, though the federal judiciary’s shift to the right has been happening since the administration of Ronald Reagan.
The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support. Our legal system was designed to set law apart from politics precisely because they are so closely tied.
Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.
The justices must address doubts about the court’s legitimacy by making themselves accountable to the code of conduct. That would make their rulings more likely to be seen as separate from politics and, as a result, convincing as law.
Herd Mentality
Come on — everybody's doing
it. That whispered
message, half invitation and half goad, is what most of us think of
when we hear the words peer pressure. It usually leads to no
good — drinking, drugs, casual sex. But in her new book, Join
the Club, Tina Rosenberg contends that peer pressure can also
be a positive force through what she calls the social cure, in
which organizations and officials use the power of group dynamics
to help individuals improve their lives and possibly the
world.
Rosenberg, the recipient of a Pulitzer Prize and a MacArthur 'genius' grant, offers a host of examples of the social cure in action: In South Carolina, a state-sponsored antismoking program called Rage Against the Haze sets out to make cigarettes uncool. In South Africa, an HIV-prevention initiative known as loveLife recruits young people to promote safe sex among their peers. And in Illinois, 'table groups' — small gatherings of believers who meet at a weekly potluck — are arranged by the Willow Creek megachurch as a way of deepening its members' religious devotion. (See TIME's special report 'What Does It Mean to Be 13?')
The idea seems promising, and Rosenberg is a perceptive observer. Her critique of the lameness of many public-health campaigns is spot-on: they fail to mobilize peer pressure for healthy habits, and they demonstrate a seriously flawed understanding of psychology. 'Dare to be different, please don't smoke!' implores one billboard campaign aimed at reducing smoking among teenagers — teenagers, who crave nothing more than fitting in. Rosenberg argues convincingly that public-health advocates ought to take a page from advertisers, so skilled at applying peer pressure.
But on the general effectiveness of the social cure, Rosenberg is less persuasive. Join the Club is filled with too much extraneous detail and not enough exploration of the social and biological factors that make peer pressure so potent. The most glaring flaw of the social cure as it's presented here is that it doesn't work very well for very long. Rage Against the Haze foundered once state funding was cut. Evidence that the loveLife program produces lasting changes in sexual behavior is limited and mixed. And the Willow Creek church's table-groups experiment was abandoned after two years. (See why schools around the country are banning smoking.)
There's no doubt that our peer groups exert enormous influence on our behavior. An emerging body of research (mentioned briefly by Rosenberg) shows that positive health habits — as well as negative ones — spread through networks of friends via a phenomenon that epidemiologists call social contagion. This is a subtle form of peer pressure: we unconsciously emulate the behavior we see every day.
Far less certain, however, is how successfully experts and bureaucrats can select our peer groups and steer their activities in virtuous directions. It's like the teacher who breaks up the troublemakers in the back row by pairing them with better-behaved classmates. The tactic never really works. And that's the problem with a social cure engineered from the outside: in the real world, as in school, we insist on choosing our own friends.
Vermont Yankee plant’s owner must
honor its own promises
A DEAL is a deal — except,
apparently, when Entergy is involved. The company, a major energy
supplier in New England, provoked justified outrage in Vermont last
week when it announced it was reneging on a longstanding commitment
to abide by the state’s stringent nuclear regulations.
Instead, the company has done precisely what it had long promised it would not: challenge the constitutionality of Vermont’s rules in federal court, as part of a last-ditch effor
Among the court’s 82 rulings this term, 16 were 5-to-4 decisions. Of those, 10 were split along ideological lines, with Justice Anthony Kennedy supplying the fifth conservative vote. These rulings reveal the court’s fundamental inclination to the right, with the conservative majority further expanding the ability of the wealthy to prevail in electoral politics and the prerogatives of businesses against the interests of consumers and workers.
¶It struck down public matching funds in Arizona’s campaign finance system, showing again a contempt for laws that provide some balance to the unlimited amounts of money flooding the political system.
¶It made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating.
¶It tore down the ability of citizens to hold prosecutors’ offices accountable for failing to train their lawyers, even when prosecutors hide exculpatory evidence and send innocent people to prison.
¶It issued a devastating blow to consumer rights by upholding the arbitration clause in AT&T’s customer agreement, which required the signer to waive the right to take part in a class action.
¶Finally, in the complex Wal-Mart case, the conservative majority, going beyond the particular issues in that case, made it substantially more difficult for class-action suits in all manner of cases to move forward.
These and other decisions raise the question of whether there is still a line between the court and politics, an issue since the Republican-led Rehnquist court decided Bush v. Gore in 2000, though the federal judiciary’s shift to the right has been happening since the administration of Ronald Reagan.
The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support. Our legal system was designed to set law apart from politics precisely because they are so closely tied.
Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.
The justices must address doubts about the court’s legitimacy by making themselves accountable to the code of conduct. That would make their rulings more likely to be seen as separate from politics and, as a result, convincing as law.
Herd Mentality
Come on — everybody's doing
it. That whispered
message, half invitation and half goad, is what most of us think of
when we hear the words peer pressure. It usually leads to no
good — drinking, drugs, casual sex. But in her new book, Join
the Club, Tina Rosenberg contends that peer pressure can also
be a positive force through what she calls the social cure, in
which organizations and officials use the power of group dynamics
to help individuals improve their lives and possibly the
world.Rosenberg, the recipient of a Pulitzer Prize and a MacArthur 'genius' grant, offers a host of examples of the social cure in action: In South Carolina, a state-sponsored antismoking program called Rage Against the Haze sets out to make cigarettes uncool. In South Africa, an HIV-prevention initiative known as loveLife recruits young people to promote safe sex among their peers. And in Illinois, 'table groups' — small gatherings of believers who meet at a weekly potluck — are arranged by the Willow Creek megachurch as a way of deepening its members' religious devotion. (See TIME's special report 'What Does It Mean to Be 13?')
The idea seems promising, and Rosenberg is a perceptive observer. Her critique of the lameness of many public-health campaigns is spot-on: they fail to mobilize peer pressure for healthy habits, and they demonstrate a seriously flawed understanding of psychology. 'Dare to be different, please don't smoke!' implores one billboard campaign aimed at reducing smoking among teenagers — teenagers, who crave nothing more than fitting in. Rosenberg argues convincingly that public-health advocates ought to take a page from advertisers, so skilled at applying peer pressure.
But on the general effectiveness of the social cure, Rosenberg is less persuasive. Join the Club is filled with too much extraneous detail and not enough exploration of the social and biological factors that make peer pressure so potent. The most glaring flaw of the social cure as it's presented here is that it doesn't work very well for very long. Rage Against the Haze foundered once state funding was cut. Evidence that the loveLife program produces lasting changes in sexual behavior is limited and mixed. And the Willow Creek church's table-groups experiment was abandoned after two years. (See why schools around the country are banning smoking.)
There's no doubt that our peer groups exert enormous influence on our behavior. An emerging body of research (mentioned briefly by Rosenberg) shows that positive health habits — as well as negative ones — spread through networks of friends via a phenomenon that epidemiologists call social contagion. This is a subtle form of peer pressure: we unconsciously emulate the behavior we see every day.
Far less certain, however, is how successfully experts and bureaucrats can select our peer groups and steer their activities in virtuous directions. It's like the teacher who breaks up the troublemakers in the back row by pairing them with better-behaved classmates. The tactic never really works. And that's the problem with a social cure engineered from the outside: in the real world, as in school, we insist on choosing our own friends.
Vermont Yankee plant’s owner must
honor its own promises
A DEAL is a deal — except,
apparently, when Entergy is involved. The company, a major energy
supplier in New England, provoked justified outrage in Vermont last
week when it announced it was reneging on a longstanding commitment
to abide by the state’s stringent nuclear regulations.Instead, the company has done precisely what it had long promised it would not: challenge the constitutionality of Vermont’s rules in federal court, as part of a last-ditch effor