[eDebate] Bueller.... bueller....

Christopher Langone langonelaw
Wed Apr 4 19:38:54 CDT 2007

As someone who is leaving the law to transition into a career in academia
and debate, I perhaps have a unique perspective on these issues.  Here are
my theories, observations and conclusions:

1.  *There is something known as "the Law"* -- while it is true that as Omri
says there are multiple levels on which laws, (i.e, policy preferences
enacted by legislators) are enforced, there is also something else that can
be called "The Law" - with a big L -- to refer to that thing that is handled
by those black-robes oracles that our society turns to declare and interpret
and proclaim what is known as the Law -- the Common Law, Natural Law, God's
Law, -- from the beginning of human societies there has been this idea that
there is something out there, something ordered, something fair, something
neutral, something that can provide a mechanism or a policy by which
something else called "Justice" can be done.  Americans have abdicated any
responsibility for knowing, understanding or contributing to the law in any
meaningful sense.  They have done this because they have allowed those
elites known and lawyers and judges to dupe them into believing that there
is something meaningful known as the law.  Anglo-American law is
comparatively notorious in this regard because of its unique concept of
"common law," which is somehow "unearthed" or "discovered" by "specially
trained" judges.  Much like debate, the law uses jargon to confuse and
obscure and confuse lay people -- it uses Latin phrases like res judicata
and calls it a legal doctrine rather than just passing a rule of civil
procedure that plainly states you cant file repeatedly lawsuits over the
same claims and issues.  Emotion is banished from this place called the
Law:  juries are told they must put all emotion aside (thank god juries
ignore that instructions) and judges take a perverse glee in the fact that
they have managed to banish emotion from their cold dark hearts as they sign
the order foreclosing on the home of some elderly African-American widow who
loses her home to Countrywide or Ameriquest so wall street bankers can make
money on their real-estate backed securitization trusts.  Emotion is the
basis of compassion and the law has done a superb job of eliminating any of
that.  The Law is rascist -- the intersectionality perspective has a lot to
offer here -- the concept of a "black woman" is not allowed in the law.
Early on, when one black woman tries to bring an employment discrimination
on behalf of a class of black women she was denied and told she could bring
one class claim as a woman, and one as a black -- she could not adduce
sufficient statistical disparities with that employer between men and women
generally, or whites and blacks generally -- although there were clear
statistical disparities for black women.  More from my own experience, I
have sued over 100 car dealers for predatory practices, over 2/3 of my
clients were black women, who are particularly targeted by auto dealers for
all kinds of victimization through very sophisticated forms of deception and
financial fraud.  In law school, I agreed with the CLS perspective that the
law was indeterminate and arbitrary -- I now believe the opposite.  The Law
is very determinate and it is designed to screw minorities and the poor in
virtually every way.  This is because the Law is disproportionately
concerned with the most important thing in the world to rich, white, male
elites -- property rights.  Indeed, modern American law is almost
exclusively about how to allocate these property rights in a manner that
favors rich, male, White elites.

2.  *Gerald Rosenberg was correct* -- it is difficult, if not impossible, to
achieve meaningful social reform through the law, with perhaps only limited
exceptions as some of the cards pointed out in areas like prison reform and
rights of immigrants and criminal defendants (who because of laws
prohibiting many of them from voting have absolutely zero chance of
influencing the other branches.  For the last ten years I have tried to use
the law to achieve meaningful social reform.  95% of the judges don't want
to hear it.  The 5% who listen get reversed.  In any event, more and more
arbitration agreements are used to privatize the law, so soon it too -- like
the legislative process -- will completely and literally become pay to
play.  Right now almost every cell phone, credit card and mortgage contract
is subject to arbitration.  As is about 75% of auto transaction (100% in
large urban environments like Chicago) -- so there is no right to sue in
court under the status quo for most major consumer transactions, which means
there is nothing anyone can do to check the power of the banking and
telecommunications industries.

3.  *Overruling Milliken would accomplish nothing* -- if anything it would
hurt.  A key part of Milliken is the idea of deferring to local control of
schoolboards.  At the time this was meant to perpetrate racism because the
local school boards were for the most part racists and it was the federal
government that was promoting less racist policies.  Now its flip-flopped,
it is the local school districts, like in Seattle and Louisville, that want
to be able to take race into account so they can create diverse student
bodies and the Soliciter General is arguing that the constitution prohibits
them from doing so.  Also, Milliken is precedent for the fact that you can
take race into account for a purpose of remediating past discrimination.
This is because race, as a category, is supposed to get "strict scrutiny"
under the law, i.e. when the government makes a classification based on race
there must be a compelling state interest in the race-based category and the
policy must be "narrowly tailored" to address that compelling policy.  This
is different than, for instance, gender -- which gets a lesser standards of
"intermediate scrutiny" (see how the "Law" comes up with a doctrine where
women get a "lesser" standard.)  Discrimination in eduction is too tied to
discrimination in housing, as well as environmental racism and job
discrim. That will not change until we as a society do something to hold the
banks and corporations accountable for their perptration
of racially-predatory housing, job and environmental actions and practices.
Instead of throwing Roland Arnal (the billionaire founder of Ameriquest who
made his fortune stealing houses from poor black people, we give his company
a Superbowl halftime show and make him the ambassador to the Netherlands --
the great Obama from Illinois threatened to block the nomination but caved,
of course).  Rather than looking at "integration" as a "remedy" imposed on
recalcitrant racists we need to argue that diversity is a benefit. Indeed,
this is the precise argument the school boards are making to the Court in
the case pending this term. And ironically, the main precedent they are
citing is Milliken, which says defer to local control -- to the extent the
local board determines that education is better served by diversity the
court, if it were to actually follow Milliken, should defer to that
determination.  Before the end of June we shall see what the geniuses do.

None of this is to say we should not try to do what we can to achieve
Justice, just don't put too much faith in the Law.

By the way, one potentially meritorius approaching to achieving diversity in
the debate community would be to try to argue, against state universities,
that exclusion of minority and dissident voices from debate teams is a form
of viewpoint discrimiantion.  Perhaps people could start by suing for
the right to be on the debate team even if they cant get into the
UNiversity.  And again, this could only work against state universities
because you could argue the debate team is some kind of government sponsored
public forum.  A crazy idea, I know, but I built my legal career on crazy

On 4/4/07, Eli Brennan <elibrennan at gmail.com> wrote:
> Let me take a crack at this:
> I wish i had had a chance to research Milliken from a policy perspective.
> I did some work vs critical versions... but that research is useful maybe in
> other ways.
> But I took a look at the caselist to see what I could find.   Here's my
> impression of what it says about Andy's Challenge.
> 1.  Overturning Milliken might be a good place to start.  I know at Broken
> Arrow High, outside of Tulsa, there were very few minority students to
> recruit for the debate team.  I don't honestly know how hard anybody was
> trying (this is an honest knowledge gap- not a hidden assertion)... but If I
> were coaching there, it would be a real challenge just because a small
> percentage of ANY demographic want to spend their weekends with us.   A lot
> of minority students were going to school on the "north side" where the
> schools were less supportive of debate (resources being a key reason, i
> would guess).  Certainly the debate coach must still do their job... and the
> community would do well to make itself an inviting place to be... but if
> it's a matter just not having access to debate early, here I suspect that
> legal action of just the sort Andy saw debated may be helpful. [though not
> having judged/traveled- i'd rather hear from someone who ran the aff]
> 2.  There may be an context problem.  Saying that the law is crucial in
> area X needn't imply it is the best path in area Y.  Obvie.   My guess is
> that the debate community's problems with diversity have something to do
> with the legacy of segregation (hence #1), and something to do with our
> culture, habits, and outreach efforts.   The tort angle seems forced.   It
> could be that there's some illegal aspect to the habits of our institutions,
> but I don't think anybody has ever argued that to me.  I'd certainly be open
> to the idea.   Sexual harassment, I think, may have something to do with why
> we don't have as many women in debate as would seem healthy... and if there
> were legal change that would make it easier to attack that problem (i'm
> cautious about my view here), I'd likely be for it.
> Anywho... that's my attempt to Answer the Challenge without personal
> attack.
> I bet many would have bet against me in this effort.
> And at you I smile.
> best,
> eli brennan
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