Category: Race

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The “Shock and Awe” Response to Hillbilly Elegy: Pondering the Role of Race

In my prior posts about Hillbilly Elegy (here and here), I’ve noted some reasons for my struggle to understand the overwhelmingly positive response to J.D. Vance’s 2016 memoir.  Actually, positive is too general a descriptor.  There is often what I call a “shock and awe” character to the response, a “there are actually people like Vance and his family out there in America” response.  Who knew?  And who knew male seahorses gestate the offspring?  Who knew the Okavango River flows inland?  Who knew the Dutch are the tallest people in the world, excepting some small African tribes?  But I digress …

It’s not clear if this initial incredulity regards (1) the white socioeconomic disadvantage and dysfunction from whence Vance comes or (2) his meteoric rise from Appalachia to Yale Law School and on to Peter Thiel’s Mithril Capital.  I’ve already opined on why we should not be surprised by the former, so in this post I’ll say more about the latter.

First, however, to illustrate just how over the top the media response to Hillbilly Elegy has been, let me quote a few reviews.  Bloomberg identified the book as “the most popular choice for best book of 2016.”  Ok, well, popularity doesn’t necessarily equate to quality, but the venerable New York Times, my own media polestar, called the book a “a compassionate, discerning sociological analysis of the white underclass.”  I’ve already explained why I don’t see it as discerning.  As for compassionate?  Maybe in the vein of Bush’s “compassionate conservatism,” but that doesn’t seem to be a thing any more–if ever it was.  I assume that The Economist reviewer would agree with me on the (lack of) compassion point because he concludes that Vance is a “conservative in the oldest and best sense.”  It’s perhaps not surprising, then, that this reviewer opines that “you will not read a more important book this year.”  In short, the reviewer falls hook, line and sinker for Vance’s tough love, personal responsibility prescription, calling it a “bracing tonic.”

One reason I am surprised by the glowing reviews (especially among left-leaning outlets) and the “millions sold” is that I would not have expected 21C Americans–particularly among the chattering classes (and I know a shocking number of law professors who have read this book)–to be so interested in a story of white class migration.  I thought Horatio Alger characters were a creature of history, that American dream, up-by-your-bootstraps narratives were yesterday’s news.  Didn’t our attraction to such delusional thinking fade once we discovered/identified/named white privilege?

In the world in which I live and work, white privilege is often referenced as if a magic bullet, a miraculous cure-all that permits people with white skin to achieve any and all that their hearts desire.  I often hear phrases like “white people’s problems” and “you’re white, you’ll be alright” tossed about casually.  At a minimum, whiteness greases the proverbial skids on the road to success, though we often treat it as much more potent than that.

Broadly speaking, the academy is highly attuned to structural racism and bias based on race/ethnicity–and appropriately so, in my opinion.  Peggy McIntosh tells us that the invisible knapsack of white privilege means that whites “can be pretty sure of renting or purchasing housing in an area which [they] can afford and in which [they] would want to live.”  (“[W]hich they can afford” is a rather important qualifier, no?)  Bernie Sanders told us during the 2016 primary:

When you’re white, you don’t know what it’s like to be living in a ghetto.  You don’t know what it’s like to be poor.

But this isn’t accurate, and surely–somewhere in the deep recesses of our memories and minds–we are aware of this inaccuracy, this failure to see or acknowledge white poverty.  Yet it seems to have taken Hillbilly Elegy‘s publication to surface that reality, however opaquely.  Still, how many of you have made the connection between what (I hope) you know about the existence of white poverty and the economic landscape depicted in this bestseller?

A majority of those experiencing poverty self-identify as white.  Yet like the academy, the media very often conflate our racism problem with our poverty/inequality problem.  See here and here.  The suggestion is often that black people are poor because they’re black, and of course there’s truth to that.  Trina Jones expresses the phenomenon eloquently:

Somehow . . . race and class become mutually reinforcing. Blacks are poor because they are Black and Blackness gets constructed as poor. That is, poverty becomes a constitutive element of Blackness. Blacks are not only lazy [and] intellectually and morally inferior, they are also poor.

So if we have conflated blackness with dependency, have we conflated whiteness with affluence, well-being, and independence/agency?  Arguably, yes.  And if we have done that, where does that leave low-income, low-education whites?  (This is a H/YUUUGE topic, of which I barely scratch the surface in this post).  If they slump or find themselves downwardly mobile or otherwise fail, we look away, ignoring or “forgetting” them (consider the headlines here and here).  If, like Vance, they ultimately succeed–if they become like “us”–we often discount that success by attributing it to their white privilege.

Given that tendency, isn’t it interesting that we’re so captivated by Vance’s story?  (Further illustrating that intrigue, did you know the movie rights to Hillbilly Elegy have been purchased and Ron Howard will be involved in making the film.  I can’t help wonder/worry what combination of “Beverly Hillbillies,” “Dukes of Hazard,” “Honey Boo Boo” “Duck Dynasty” “Deliverance” and ???? will get depicted.  Plus, who’s going to play J.D.?  Sorry, digressing again).

Furthermore, would we feel the same about Hillbilly Elegy if Vance were our colleague?  (Btw, even friends and acquaintances who liked the book are telling me they are tired of seeing and hearing Vance on CNN; guessing it’s a good thing I don’t watch TV.)  What would it be like to have Vance on your law faculty?  Would that just be too awkward given how different he is from “us”?  What if he showed up, fresh out of Ohio State, as our law student?  (that’s a topic for a future post).  Maybe we relish Vance’s story, his success as a token and at a distance, but we can probably imagine what it would feel like to have him around in the flesh, too close for comfort.  We know he wouldn’t really fit in.  And maybe part of the reason legal academics (of all people) and other elites seem to savor the story is that Yale Law School is the ultimate icing on the educational cake.  Maybe we are attached to that “up by the bootstraps” narrative after all.  Maybe Vance affirms our desire to be engaged in–and to be the products of–a meritocratic enterprise.

And that brings me to another “race” question:  Would the Black/African American equivalent of Hillbilly Elegy have spent so many weeks on the New York Times bestseller list?   Or could/would such a hypothetical book–in an era when the Obamas’ autobiographies have been valued much more highly than prior U.S. presidents–leave Hillbilly Elegy in the dust?  Maybe so.  In fact, we may already have our answer to that question in Dreams from my Father:  A Story of Race and Inheritance.   

Oh, and for the record, I love that book.  Really love it, as reflected in some of my ponderings about it in 2009.  Barack Obama is not only a much finer writer than Vance, I found his reflections more thoughtful, mature, nuanced (and maybe he had a better editor because I don’t recall him going on and on and on).  But I admit that familiarity breeds contempt, and Obama told me a story and introduced me to a world I didn’t already know.  Sadly, I can’t say the same about Vance.

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Carol Sanger Replies to Khiara Bridges: Medical Care and the “Down There” Problem

In the 1960s, a friend from ages ago went to a new gynecologist for a regular check-up.  As she lay there on the table, feet in stirrups covered with kitchen oven mitts in a gesture toward patient comfort, the doctor came in and said, “Hello, I am Dr. [Smith]. I am going to examine your body and then I will look ‘down there.’”  My friend replied, “’Down there’ is part of my body.”  (I can’t remember if she got up and left or not; it was the 60s and we were still fairly obedient.)

Whether  “down there” is part of one’s body for purposes of medical treatment is the question asked and very quickly answered by Khiara Bridges in her post “Abnormalizing Abortion.”  The answer is No, not if we use the term “medical treatment” to mean the treatment or prevention of all other medical conditions covered under Medicaid.  This was established under the Hyde Amendment, which bars federal Medicaid funds even for a pregnancy that endanger the woman’s health or life, or that was caused by rape or incest.  The “down there” issue has now become federal policy, as abortion is now a form of treatment literally segregated from the body politic.

Bridges uses About Abortion, and my interest in how abortion regulation tries to convince women not to terminate their pregnancies through moral suasion (and to punish women who do it anyway) as a point of departure toward other forms of regulation.  The Hyde Amendment isn’t a bit interested in moral suasion.  Instead, it sets a bright line rule at the poverty level that “coerces indigent women to carry their pregnancies to terms by leaving [the women] to scrape together the $300 to $3,000+ for their abortion procedures.”

Not only does the Hyde Amendment have actual power over an indigent woman by its refusal to fund an abortion procedure, but as Bridges powerfully points out, the denial of funding is rich with “discursive power” “insofar as it creates and legitimates discourses that describe abortion as ‘not healthcare.’”  Her point is that while I have focused on normalizing abortion, we ought to be attentive to just how and how forcefully law “abnormalizes” abortion by segregating it from all other healthcare.

By most people’s lights, abortion is a medical procedure even if one thinks the procedure should be illegal.  Its status as medicine is the basis of its regulation by the federal and state governments under the police power, that relic of 7th grade physics that still has purchase today in Constitutional Law.

Abnormalizing abortion through funding bans is of a piece with the battle to cover contraception under Obamacare, with the layers of regulation that treat it differently from all other procedures, and the global gag rule.  Moreover, the funding ban only applies to poor women, who are more often women of color, so that this form of maternal coercion, as Bridges points out, is tinged with race.

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Hillbilly Elegy as Rorschach Test

I have already made clear in a prior post some of the reasons I am not a big fan of Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, J.D. Vance’s best selling 2016 memoir:  I think Vance is using his personal narrative to advance a neo-con agenda (and I will freely admit I don’t trust anyone who would work with Peter Thiel).  Further, I don’t think the book lives up the hype.

But lots of folks I know and respect do like the book, and they have been willing to defend it.  Following are my recollections of some of the conversations I have had about Hillbilly Elegy, most of them initiated by my friends and acquaintances rather than by me–for whatever that’s worth.  In any event, recalling these has me pondering the book as “Rorschach test,” that in which we can see what we choose to see.

Family, Luck and the Luck of Family.  When I opine that I see Vance takes too much credit for his success (which is not to say he deserves no credit) and focuses too much on the staple of conservative politics, “personal responsibility,” several friends have disagreed.  One said “No, he doesn’t take credit.  He says he got lucky by virtue of his stalwart grandparents who loved him” and kept him between the ditches (the latter part being my hillbilly paraphrase of what my friend actually said, which I don’t recall verbatim).  Ok.  Fair enough.  Yes, he appropriately gives his grandparents lots of well-deserved credit, and I relate to that.  I would never have made it to college or beyond without my mom and other key folks in my community who encouraged me and expected great things.  But family and friends as cheerleaders will not, alone, get you through college or graduate school–especially when they have never been there themselves and can rarely help you set appropriate goals.

It’s Really Complicated.  When I told another friend that I think Vance takes too much credit for his success, she (a Harvard educated lawyer) said, “Oh no. What he is saying is that it’s all very complicated.”  Well, I can hardly argue with that.  Of course it’s complicated!  But this is sorta’ like Donal Trump saying health care reform is complicated or the North Korea situation is complicated.  Are you kidding me?  The fact that the world didn’t know it was “complicated” before J.D. Vance published Hillbilly Elegy is, frankly, embarrassing.  (In this vein, read Alec MacGillis’s excellent piece in The Atlantic).  People living below, at, or hovering above the poverty line have very difficult lives–even if they are white (and I hope to return to the matter of whiteness in a dedicated way in a subsequent post).  Reports of what are now being called “Deaths of Despair” among low-education whites came out as early as 2013, such as here; among these is Case and Deaton’s high profile study in the fall of 2015.  We should know that these folks exist and that when they are able to escape the bonds of the low-income, low-education world, it pretty much requires a harmonic convergence–a small, multi-faceted miracle–every time.  It takes some combination of family support, mentoring, lucky breaks (which can include stable grandparents, like J.D.’s), sheer native ability, perseverance, grit and–yes–hard work.

Oh, I would argue that it takes “the state”!  Vance talks only vaguely of Pell Grants, government-backed student loans, or work study–or any other way that his family received any benefit from government policies, be they the EITC or food stamps or  … How about his public university degree from Ohio State?  the GI Bill?  In the last chapter, which is his policy recommendations chapter, he does refer opaquely to his grandparents’ Social Security, so there’s that.  Maybe I overlooked the structural stuff.  But for the most part, as Sarah Jones highlighted in her New Republic review, Vance writes as if the state is not an actor, either by omission or commission.  Really?  Can it be that the state was irrelevant to Vance’s class migration?  that all the state did for him is permit him to become a Marine and thereby bootcamp some discipline into him?  Is this absence of government what so many across the political spectrum find so appealing about Hillbilly Elegy?  Further, is it possible that the state can or should play little or no role in the plight of those left behind?

Memoir vs. Policy Manual.  When I told another acquaintance–a childhood  immigrant from Poland, a relatively recent University of Michigan law graduate–that I found Vance’s dalliance in policy matters annoying and regressive, she said she hadn’t really noticed, had skimmed over those parts.   She then allowed that the book probably worked better as a memoir than as a policy document.  I agreed.  But I was also somewhat puzzled that this white class migrant (her father was a truck driver, just like mine, and she, like Vance, had served in the military) had  been so taken with Vance’s narrative, his version of events.  Her own journey didn’t sound terribly different to his (though I assume the absence of extreme parental dysfunction and addiction)   That journey had, however, taken place in a major American city rather than a corner of Appalachia, which may have sufficiently differentiated it from her own to make Hillbilly Elegy interesting in her eyes.

Window into Another World.  A well educated, thoughtful and sage (yoga instructor, no less!) friend from an “old money” family back East asked me what I thought about Hillbilly Elegy.  Her book group was about to discuss it, and she said she felt the book was providing her insights into the value of relationships and people whom she would previously have dismissed as uncouth at best.  Specifically, she said that if she had met Vance’s cursing, gun-toting grandmother, she would have been entirely  disdainful–until she read the book, that is.  Hillbilly Elegy had helped her to see the value in Vance’s Mamaw.  I said, “fair enough, but read what I have written about the book,” and I passed along a partially written review.  It is self-serving to report, but my friend came back with, “yes, I can see your reflections on your upbringing are more mature and thoughtful than Vance’s. Nevertheless, I did benefit from Hillbilly Elegy as a window into another world.”  And this brings to the last of the exchanges that I will share …

Is Vance Seasoned Enough to be Publishing a “Memoir”?  As I have previously mentioned, not many written reviews of Hillbilly Elegy have been anything other than glowing.  In addition to the Sarah Jones review I have already cited and quoted, I have read very little negative commentary about the book.  Some of the few “bad” reviews I have seen were in the Daily Yonder, an online publication/blog of the Center for Rural Affairs (I know you are chuckling, but this is a serious outlet for rural perspectives and rural news).  They published three reviews, none of which was very flattering, and  two of which called out the inappropriateness (and perhaps even absurdity) of someone publishing a “memoir” at the age of 31.  One, Jim Branscome, a former managing director of Standard & Poor’s and a former staff member of the Appalachian Regional Commission, quotes Vance’s own book introduction.

I find the existence of the book you hold in your hands somewhat absurd.

Branscome then summarily agrees with the statement.  In another review, Charles L. Baker, a native of Eastern Kentucky and retired CEO of Presbyterian Child Welfare Agency, expands on that notion:

J.D. Vance lacks the maturity to see the blind spots that trouble his book… The culture he blames for spreading failure gave him some of the values that helped him succeed.  And the government he says institutionalized poverty in Appalachia helped him find a way into the middle class.

Baker’s review–like that of Sarah Jones–reminds us that Hillbilly Elegy is not just the story of Vance’s escape from Appalachia, it is the story of the multitudes left behind.  (This, of course, is why CNN regularly brings Vance on to educate the viewing public about the supposedly quintessential Trump voters).  The book’s importance is as much or more in what it says about the failures of Vance’s people as it is about Vance’s “phoenix from the ashes” success.  Don’t doubt, though, that both aspects of the book have made it especially popular among conservatives and libertarians.  Vance gets to be the poster child for Reagan’s vision of the potency of personal responsibility.  Yet many of us who have trod that path are less likely to “lean into our own understanding,” much less take so much credit for our own success without also acknowledging the many structural handicaps that hold back our communities and families of origin.

As for Vance’s maturity, I acknowledge that a childhood and youth like J.D. Vance’s will prematurely age a person.  It’s an exhausting way to live, and that which doesn’t kill you will not only make you stronger, it will often result in what I shall call premature maturity.  Nevertheless, Vance, a few years out of Yale Law, is surely nowhere close to maxing out on wisdom.  I wonder how the decades to come might lead him to reflect differently not only on his own journey, but also on what his people need, on the array of factors that are holding them back, keeping them down. (You may have heard that, in recent months, Vance has moved back to Ohio where he will be using some of the fruits of his labor to start a foundation; I anticipate a run for public office in his near future.)

I am thinking it is no coincidence that the few naysayers about Hillbilly Elegy that I have managed to identify are mostly from the region, and some of us are class migrants.  (Other important reviews of Hillbilly Elegy from those in the region are here and here; Jedediah Purdy, who grew up in Appalachia and teaches at Duke Law reviews the book here, though he is more descriptive than critical). We see a greater role for the state in places like Appalachia and the Ozarks and, like Vance, we have first-hand knowledge of the milieu.  We see the structural barriers to not only getting to Yale Law School (and few from any place or milieu even aspire to that), but the ones that keep kids from getting through high school or enrolled in community college or securing a decent blue-collar living.

In the 2016 election cycle, Democrats seem to have neglected these people and what government can (and should?) do for them.  Indeed, Hillary Clinton hardly showed up in rural America.  If liberals think Hillbilly Elegy represents some “gospel truth” about low-income, low-education whites, they may well continue down the current path of self-destruction, failing to prioritize races in rural places with large white working class populations (read more here and here).

In closing this post, let me return to Sarah Jones of the New Republic, because I can’t sum up my feelings about the election of 2016 and what working class whites need and deserve any better than she did (emphasis added):

By electing Trump, my community has condemned itself to further suffering. … Our schools will get poorer and our children hungrier. It will be one catastrophic tragedy out of the many a Trump presidency will generate. So yes, be angry with the white working class’s political choices. I certainly am; home will never feel like home again.

But don’t emulate Vance in your rage. Give the white working class the progressive populism it needs to survive, and invest in the areas the Democratic Party has neglected. Remember that bootstraps are for people with boots. And elegies are no use to the living.

I’ll be returning soon with more thoughts on other important issues that Hillbilly Elegy brings to the fore.

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On Donald Trump, J.D. Vance, and the white working class

Thanks for the opportunity to guest blog here at Concurring Opinions. Though I am a law professor on a law faculty, I plan to spend much of the time and space afforded by this blogging invitation to write more about politics and culture than about “law” in a narrow sense. Indeed, a great deal of my scholarship over the past decade has drawn heavily on politics and culture, and I’ve even had the opportunity to engage in some political punditry post-Election 2016.  I plan to write some posts about rurality, yes, but I’m also going to write a series of posts about low-income, low-education whites, a population with which we as a nation have a newfound fascination following the election of Donald Trump, who drew considerable support from this demographic segment. I hope readers will provide some feedback on these musings, as I am engaged in ongoing, more substantial writing about this population as a critical race project, exploring what is at the particular intersection of white skin privilege with socioeconomic disadvantage and distress.

I’m going to begin with some musings on J.D. Vance’s Hillbilly Elegy: A Memoir of a Family and Culture in Crisis (HarperCollins 2016), a book that has been widely reviewed—and nearly as universally praised—since its publication early last summer. If you think you’ve read all you need to know (or all you can stand!) about this bestseller, bear with me.  I’m not going to join the resounding chorus of praise you’ve you already consumed regarding Hillbilly Elegy.  Further, what I find interesting about the book is less its content than the elite, coastal reaction to it. (Yes, fellow law professors, when I say “elite,” I’m talking about us, you and me, along with the media and other privileged institutions of the narrating classes/interest public.)

Let me preface my comments by outing myself as a class migrant and a hillbilly. Vance grew up in Appalachia; I grew up in the Arkansas Ozarks, both high and/or persistent poverty white regions. I’m a first generation college graduate (and, as a law graduate, a first generation professional), and I’m not sure if Vance also is, given that his mother was a nurse.  Nevertheless, we’ve both migrated from being low-income, low-status whites to being higher status whites, largely by virtue of access to and consumption of a great deal of higher education.

Shortly after Hillbilly Elegy was published, one of my former law professors asked me, only partly tongue in cheek, if I had written the book—then quickly added, maybe “you should have written it.” (This makes for an interesting reminder that I was apparently not class passing very effectively back in law school). You get the idea: my own life story shares many similarities with Vance’s (though I’m two decades older, and upward mobility for po’ folk has declined over the 20 years that separate me from J.D.), sans the elite law degree (my J.D. is from the University of Arkansas, Vance’s from Yale).  This latter distinction may be quite significant in any number of regards, and I hope to return to that point in a subsequent post.

While I have reflected on my own class migration in some law review articles (here and here), I did not reach for the brass ring of a popular press book contract. So, alas, J.D. Vance is a millionaire, best-selling author who appears regularly on television as everyone’s  favorite “white trash ‘splainer” and I continue to toil away in the obscurity of my Ivory Tower.  All of this means, among other things, that if you think I’m too hard on Hillbilly Elegy, you can write it off as sour grapes.

Let me begin, though, by telling you what I liked about Hillbilly Elegy. First and foremost, before I started reading it, I loved the fact that someone had written a book about this milieu—my people, too, I assumed—and that the media outlets I consume (mostly liberal, all elite) were paying attention to it. I sent lots of affirming Tweets, cheering on the new book.  Second, once I finally started reading the book, I found that the memoir parts (as opposed to the social science blurbs and policy suggestions) of the book rang authentic, so much so that I found myself both laughing and crying at the tales of Mamaw and Papaw. I, too, grew up in a family of straight-talking folks who often expressed themselves in colorful language, delivered at high volume, sometimes with guns. Many of the vignettes resonated strongly with me based on my own hillbilly upbringing.

Third, I thought Vance provided an occasional insight into his people, who seem closely akin to “my people.”  For example, Vance talked about their attitudes toward Obama, noting, among other things, that “[h]is accent—clean, perfect, neutral—is foreign; his credentials are so impressive they’re frightening…he conducts himself with the confidence that comes from knowing that the modern American meritocracy was meant for him.” With this passage Vance contrasts the knowledge in his Ohio community—a realization that hit at about the time “Obama came on the scene”—that “the modern American meritocracy was not built for them.” (p. 191).  Ah, yes, meritocracy, shmeritocracy.  Guinier refers to The Tyranny of Meritocracy, a title that speaks volumes.  “Meritocracy” has actually come to be for only a select few, and they are not by and large the children of Appalachia and the Ozarks.  Read more here.

My read is that Vance is opining that the disaffection of the white working class is not so much about race as the mainstream media seem to have concluded. It is more about a growing sense that working class whites’ prospects are declining, and this has happened more dramatically as elites have come to dominate both the Democratic and Republican parties.  I also give Vance credit for calling our attention to white working class distrust of the mainstream media—even before the election made it an undeniable force. Indeed, Vance notes–months before the election of 2016–the significance among hillbillies of Alex Jones and others who perpetuate what we now call “fake news.” (p. 192)

Yet contrary to many reviewers’ opinions, I did not find Hillbilly Elegy especially well written—even acknowledging that it would take extraordinary skill to write about a life permeated by such sensitive and stigmatized matters, e.g., domestic violence, drug abuse, gun toting grandmothers. Nevertheless, a much stronger memoir of a low-income, dysfunctional white family and the author’s escape from it is Pulitzer Prize winning journalist Rick Bragg’s All Over But the Shoutin’ (1998). A much more compassionate depiction and far more incisive commentary about this milieu can be found in Joe Bageant’s Deer Hunting with Jesus: Dispatches from America’s Class War (2007). Among tales of class migration, Alfred Lubrano’s Limbo: Blue-Collar Roots, White-Collar Dreams (2005) is superb. I don’t recall those books garnering nearly as much media attention as Hillbilly Elegy, but that may be because the one thing Vance got most “right” was his timing.

So why have so many reviewers been complimentary of Vance’s writing? I have two theories. First, reviewers may be surprised that anyone who grew up with so much childhood and adolescent trauma—in Appalachia no less—is capable of writing a solid sentence, let alone a solid paragraph.  (Yes, I’m suggesting a best selling memoir should require more than that).  Alternatively, reviewers may give any graduate of Yale Law School a free pass—that is, Vance may enjoy a presumption that he is a good writer because he earned a law degree at Yale. Vance does in the book’s latter chapters acknowledge the extraordinariness of his elite education and the doors it opens (chapters 12-13).

Hillbilly Elegy is also made less readable by Vance’s distracting practice of peppering policy prescriptions (e.g., food stamps (SNAP) are bad because poor white folks abuse them (p. 139); unregulated payday lending is good because it gives poor folks choices (p. 185)) awkwardly amidst his first-person narrative. Sometimes these are accompanied by social science or other evidence to bolster a point, or to explain the psychology of a phenomenon he has experienced by virtue of his traumatic upbringing. Sarah Jones, writing in the New Republic, called the book mostly “a list of myths about welfare queens repackaged as a primer on the white working class.” (Indeed, I recently published an essay arguing that our nation increasingly views these two populations similarly, showing no more sympathy (or empathy) for poor whites than for poor blacks.) Even more problematic, to my mind, is Vance’s use of those myths to advance a regressive policy agenda.

In my next post, I’ll return with a more substantive critique of Hillbilly Elegy–and, implicitly, a commentary on the book’s fans.

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Frontal Lobe or A Softer Take on The Twenty-Fifth Amendment and Mental Illness

Gerard makes a good point about the Twenty-Fifth Amendment, but there may a related idea that helps (and shows the limits of the Amendment). Perhaps the President, as with many folks as we age, has a front lobe problem. These ideas apply to many more than the President.

There is some evidence that our frontal lobe decays as we age; when that happens executive control goes down and we are less able to manage many things. This abstract for the paper Aging, Executive Functioning, and Social Control says it all rather well

Aging is associated with atrophy of the frontal lobes of the brain, which are the seat of executive functions. Because successful social functioning often requires executive control, aging can lead to unintended social changes via deficits in executive control. In this article I review evidence that, due to losses in executive control, aging leads to increased prejudice and social inappropriateness and, under certain circumstances, increased depression and problem gambling. I then discuss theory and research suggesting possible interventions that might ameliorate unwanted social changes brought about by executive decline.

Yes. The part of our brain that is “the seat of executive functions, which include tasks such as planning and controlling thought and behavior” decay with age. This change can lead to “poor executive functioning, including reduced ability to inhibit irrelevant or unwanted thoughts.” How does this play out? It seems a variety of things can happen.

Prejudice: “Automatic or unintentional stereotypic thoughts appear to be common in most people (Devine, 1989), and it might be that older adults have greater difficulty inhibiting these stereotypic thoughts despite their efforts to avoid being prejudiced. Thus, older adults might also be more prejudiced than younger adults because they can no longer inhibit their unintentionally activated stereotypes.”

Inhibition and Social Inappropriateness: “findings suggest a dissociation between knowledge of social rules and the ability to follow them that is consistent with other types of frontal lobe damage.”

Inhibition and Depression: As I read the paper, the results are not settled except that “age-related inhibitory deficits might also contribute to late-onset depression by impairing control of excessive rumination (a tendency to focus on one’s problems without engaging in active problem solving,
which exacerbates and prolongs depression).” The paper is clear that the key issue is “those older adults who rely on inhibitory control to stop themselves from ruminating (either chronically or when confronted by negative life events) are likely to develop problems with rumination if they have poor executive control.”

Inhibition and Gambling: Again not conclusive: “Analogous to the case with late-onset depression, poor inhibitory ability is unlikely to lead to gambling problems in all or even most older adults. Rather inhibitory deficits might lead to gambling problems only among those who struggle with their
impulse to gamble. That is, people who gamble and who are impulsive by nature might be at risk for developing gambling problems as they age, due to losses in the ability to restrain their urge to gamble.”

SOLUTIONS: Apparently we are able to exercise and control earlier in the day rather than later.

Another paper notes the limits of the above findings, and both call for longitudinal studies to understand how things change as we age.

Nonetheless, although arm-chair psychology has problems, the list above seems to map rather well to President Trump’s behaviors. None of that excuses them. Unlike our parents, or us as we age, the President’s statements, orders, and actions have consequences that affect hundreds of millions, if not, billions of people. If the above is useful or interesting, I expect someone could and will track the President’s habits and look at time of day. As Gerard noted, it is unlikely these traits will rise to incapacity. And yet, as with our elders and us as we age, at some point, someone gets to run tests and see whether everything is working well. Again for the Office of the President whether we want such tests seems to be answered as no. Both or any party is not to be trusted with such a tool. But that is a problem for another time.

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Feminist Legal Theorizing about the Second Amendment: What Heller Missed

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In my previous post, I suggested that it’s long past time for a feminist analysis of the right to keep and bear arms.  Drawing on my forthcoming article, “Guns, Race, and Sex,” this part follows the Court’s lead in Heller v. McDonald by examining the ratification history of the Second Amendment.

In Heller, the Court split the provision’s text into two parts.  The majority decided that the second (“operative”) clause, supported by the first (“prefatory”) clause, equaled an individual right to possess and carry weapons for self-defense purposes–not limited to militia service.  But closer examination of the Amendment’s terms and the context surrounding its ratification suggests structural purposes extending the individual use of firearms.

Based on their experience dealing with a distant and detached sovereign, among other things, the framers were deeply troubled by the prospect of a standing army.  To them, professional soldiers would be loyal to and help empower central government.  At the same time, they recognized the need for national security.  As a result, the Second Amendment reference to the militia reflects a compromise among the framers to provide for defense, but doing so in a way that would not jeopardize state sovereignty.  Put differently, it’s another check on federal power.  Framers believed that the state’s citizens—local men—would be the best guarantors of peace.  Those men were “the people” the Amendment references, which further suggests that this phrase has structural significance.

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Feminist Legal Theorizing about the Second Amendment: Gun Violence is a Women’s Issue

Thanks so much, Naomi, for inviting me to blog this month.  It’s really an honor and pleasure to participate in the lively discussion on this forum.

Starting today, concealed weapons will be allowed on college campuses in Texas.  Ironically, this new law goes into effect on the solemn anniversary of the state’s largest mass shooting at none other than its flagship institution, the University of Texas.

More guns.  Just what we need.

After all, there haven’t been enough headlines about Black lives lost at the hands of police, or stunning murders of white police officers as they protected Black Lives Matter protesters.

Please forgive my sarcasm. I’m frustrated.  Before this year is out, I’m sure there will be more tragic slayings, more outpourings of grief and recrimination, but still no movement toward sensible reform of gun laws.

And, amidst the din, there is little to nothing coming from feminist legal circles.

Two summers ago, Nation commentator Dani McClain argued that “the murder of Black youth is a reproductive justice issue.”  Her call to action came to mind when I saw the “Mothers of the Movement” during the Democratic National Convention.  The mother of Jordan Davis, who was shot for playing his music too loud, openly hoped for a time when membership in this “club of heartbroken mothers” would shrink.

I had been puzzling over this issue for a while, struck by the no-regulation-no-time stance of the National Rifle Association.  In the context of reproductive justice, many have argued with success that the state’s interest in potential life trumps women’s fundamental interest in bodily integrity (thankfully, with Whole Woman’s Health v. Hellerstedt, the Court finally has drawn a line over which states cannot cross).  Imagine if potential gun buyers had to jump through the same hoops as women seeking abortions. As district court judge Myron Thompson stated in Planned Parenthood v. Strange, the legislature would have “a heck of a lot of explaining” to do.

Hypotheticals aside, it doesn’t take much digging to see the gendered and raced aspects of gun violence.  An August 2015 survey by the Ms. Foundation for Women showed that violence is a top concern for women.  Firearms figure prominently in the domestic violence context.  According to the Pew Research Center, gun owners are predominantly male and white—they are 82 % of firearm owners.

So, in the next three blog posts, I accept McClain’s challenge and apply a feminist analysis to the issue of guns in the nation.  Given the medium, the exploration will be brief; but, I discuss it more fully in a forthcoming article upon which my posts are drawn, “Guns, Sex, and Race:  The Second Amendment through a Feminist Lens,” which will be published in the Tennessee Law Review.

The feminist lens that I’m using is one that is intersectional and rooted in feminist legal practice:  social justice feminism (SJF). SJF emerged from practitioners responding to the calls from women of color and other marginalized women to recalibrate the women’s movement with a focus on their needs.  As my colleague Kristin Kalsem and I have explained, SJF is about uncovering and dismantling social and political structures that support patriarchy, while “recognizing and addressing multiple oppressions.” SJF methodologies focus on historical context, structural inequities, intersecting oppressions and underserved populations.  In so doing, they reveal issues liberal feminism might fail to recognize as having gender implications.

SJF’s historical method looks to the past in order identify the roots of structural inequalities and dismantle them.  In this sense, SJF follows in the footsteps of feminist and critical race theory in seeking to uncover lost histories, elevate the experiences of marginalized people, and reveal how traditional historical narratives mask and perpetuate subordination.

In the posts that follow, I will apply this methodology to the Court’s decisions in Heller v. District of Columbia and McDonald v. Chicago, cases that relied heavily on a so-called originalist telling of history.  However, SJF reveals the context omitted by the majorities in both cases—one that helped lay the foundation for a race-and gender-based social hierarchy.

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UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United Alexander Hertel-Fernandez & Paul Secunda 2
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities? William C. Kidder 100
Mismatch and Science Desistance: Failed Arguments Against Affirmative Action Richard Lempert 136
Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns 174
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Clay Calvert 230
A Worthy Object of Passion Seana Valentine Shiffrin 254
Foreword – Imagining the Legal Landscape: Technology and the Law in 2030 Jennifer L. Mnookin & Richard M. Re i
Imagining Perfect Surveillance
Richard M. Re 264
Selective Procreation in Public and Private Law Dov Fox 294
Giving Up On Cybersecurity Kristen E. Eichensehr 320
DNA in the Criminal Justice System: A Congressional Research Service Report* (*From the Future) Erin Murphy 340
Utopia?: A Technologically Determined World of Frictionless Transactions, Optimized Production, and Maximal Happiness Brett Frischmann and Evan Selinger 372
The CRISPR Revolution: What Editing Human DNA Reveals About the Patent System’s DNA Robin Feldman 392
Virtual Violence Jaclyn Seelagy 412
Glass Half Empty Jane R. Bambauer 434
Social Control of Technological Risks: The Dilemma of Knowledge and Control in Practice, and Ways to Surmount It Edward A. Parson 464
Two Fables Christopher Kelty 488
Policing Police Robots Elizabeth E. Joh 516
Environmental Law, Big Data, and the Torrent of Singularities William Boyd 544
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UCLA Law Review Vol. 63, Issue 2

Volume 63, Issue 2 (February 2016)
Articles

The Business of Treaties Melissa J. Durkee 264
Choosing Constitutional Remedies Eric S. Fish 322
Judging Third-Party Funding Victoria Shannon Sahani 388

 

Comments

The Courtroom as White Space: Racial Performance as Noncredibility Amanda Carlin 450
Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict Sandeep Avinash Prasanna 486
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Developmental Equality

We live in a time where we can accurately predict the risks and opportunities for many children.  As surely as if we marked them at birth (or even before), we can identify who will likely succeed and who will likely fail by adulthood.  Race and gender, alone and in combination, generate clear odds.  Disparate risk generates a hierarchy of children, and we know who will be at the bottom.  Children’s inequalities are linked to developmental supports for some children, coupled with not only the lack of support for others, but also the presence of barriers and challenges, designed for children to fail, not to succeed.

Children’s inequalities, by race and gender, are particularly evident in the life course of Black boys.  Their patterns from birth to 18 are an example of similar patterns for other children at the bottom.  I do not mean to suggest here a hierarchy of inequalities, but rather to use their life course to adulthood as an example of the marked outcomes for certain children.  At birth, a Black baby boy has more than a one in three risk of being born into poverty.  He has a one in two risk of never graduating from high school.  And he has a one in three risk of being incarcerated in his lifetime, in the juvenile justice system or the adult criminal justice system.  His risk of incarceration doubles if he is born at the lower end of the socio-economic scale.  While he may transcend these risks, the trajectory funnels him toward failure and subordination, to the low end of what is a hierarchy of opportunity for kids.

These disparate negative risks to development are linked to systems that fail him:  systems that do little to support, and much to undermine, his growth to his full potential.  These are systems constructed and perpetuated by the state, at federal, state, and local levels, by the choice of policies despite the evidence of disparate, unequal outcomes along known, identifiable identity lines. Those systems include the poverty system (the clutch of policies that perpetuate poverty, and income inequality by race, rather than provide pathways out of poverty); the education system (highly segregated by race, disparate in resources and outcomes school-to-school, and especially negative in outcomes for Black boys), and the juvenile justice system (a largely boys’ system designed to punish and disadvantage for life rather than rehabilitate; and a sharply disparate system in every negative way for boys of color, particularly Black boys).  In combination, these systems and others directly impact the lives of Black boys, their families, and their communities in negative ways that replicate inequality.  The pattern is not merely one of insufficiency or inadequacy, but of barriers and harms.

The inequalities of Black boys are not unique.  There are other children who are predictably at the bottom, that we expect to be there.  And unequal hierarchies are not unique to American children.  In many countries, data reveal which children are marked for failure.  So, for example, in all countries in Europe in which they are present, Roma children are disproportionately poor, minimally educated, and jobless; the most unequal are Roma girls.  Muslim children similarly are targeted in many European countries, as are migrant and refugee children.

How can we address these inequalities, and those of other identifiable groups of children who reach adulthood lacking in opportunity due to failed outcomes and barriers placed in their way?   I propose that we have to think about these blatant inequalities differently, in order to craft meaningful change, by embracing a model I call “Developmental Equality.”

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