The Debate Link

There's some chatter about a few restaurants in Florida who, to show their dissatisfaction with the Affordable Care Act, have started tacking on an "Obamacare surcharge". What most people are focusing on is the incredibly limited nature of the "fee". Even assuming it accurately reflects costs, we're talking 20 cents on a dinner for one. The horrors! Truly, this massive government overreach will be the death of us all.

But from my vantage point there's another angle to consider. I don't see how this turns out well for the protesting restaurateurs. The number of customers who don't come in because of the extra 20 cents seems scant. The number who don't return due to the political message being sent, though, may not be trivial. If I saw an "Obamacare surcharge" on my bill, I probably wouldn't return to an establishment simply because I'd be deeply annoyed at that sort of hyper-partisan grandstanding. And presumably, the conservative anti-ACA folks can't show up either, lest they demonstrate that the cost of the ACA isn't a big deal. Economic consequences are a self-fulfilling prophecy. And if they're not, then that just demonstrates that we can in fact afford universal healthcare. Either way, not a happy day for someone trying to send a message about the evils of Obamacare.

I read this opinion piece by Ryan Goodman, which complains about Chipotle's "food with integrity" marketing strategy. Goodman thinks Chipotle is providing a misleading and unfair depiction of actual farm production. In reality, farming is actually like ....

Insert argument here.

Goodman doesn't say. He never says how actual farming differs from Chipotle's presentation. And obviously it is different -- Chipotle's viral videos are deliberately hyperbolic and dystopian, which contra Goodman is not itself a marker of dishonesty -- but we hear absolutely zero substance on the subject from Goodman. "Go talk with the farmers and ranchers," he says, but without giving the slightest hint as to what they'll say. I couldn't help but think of this:

One of originalism's self-reported strengths is that it fixes constitutional meaning in a time and manner distant from immediate social controversies. The trouble with a constitution that adopts to the times is that constitutional rights are vulnerable to prevailing political winds. You may have robust freedom of speech protections now, because legal elites think it wise, but if tides change those rights disappear as the document "evolves" in another direction. And such politicized interpretations are more likely under a living constitutionalist model, because making constitutional law "in the moment" means that the enactors (i.e., the judges) will necessarily be more prone to self-interested or partisan motivations. They'll have skin in the game (even if it is only ideological) slanting their interpretations; the framers, who crafted their rules distant from today's particular social controversies, are more likely to be objective. And indeed, this is a large part of the reason why we want constitutional entrenchments in the first place: we make decisions today, when passions are cool, precisely because we cannot guarantee how we'll respond in the fires of a particular heated social controversy.

Now compare the above to modern constitutional standing doctrine. Courts can only hear actual "cases or controversies", defined as situations where the plaintiff has suffered a concrete and particular (not conjectural or hypothetical) "injury-in-fact", caused by the defendant, and redressable by a favorable ruling. The rationale is that "concrete adverseness . . . sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Deciding cases only once they've become a case ensures that courts have access to the full range of circumstances and consequences of adopting a particular constitutional rule. By contrast, "advisory opinions" passing hypothetical judgment on legal challenges which have not yet risen to a true adversarial controversy are unreliable because they lack this immediacy -- they operate in an unreal and speculative atmosphere not conducive to accurate decision-making.

These theories of decisional efficacy are in tension. The former (originalism) values distance as a means of securing objectivity, the latter (standing doctrine) favors proximity in order to achieve clarity. If we adopt an originalist methodological approach to constitutional interpretation, it is unclear why we would need or even want to preserve modern standing doctrine (at least in constitutional cases). The whole point, after all, is to decide cases without being mired inside the pressures and obscuring tendency of a genuine social controversy. The latter by definition cannot aid in ascertaining the meaning of the relevant constitutional clause (which was fixed long before); it can only distract adjudicators by drawing out the proximate and partisan consequences of a particular holding.

It is true one can craft a very instrumentalized version of the value of standing doctrine which would still apply even under "originalist" values. Under this rendition, standing doctrine assists courts because the presence of an actual controversy ensures that the relevant legal issues will be argued robustly by legal counsel with a strong incentive to press their case to the fullest. Basically, constitutional standing is valuable because it produces good briefs.

This justification for standing is oft-repeated, but I wonder if anyone believes it. Anyone who has ever observed a courtroom is well aware that standing is not actually any bar to very poorly argued cases, or worse (from the perspective of trying to come to a legally accurate decision), cases with complete mismatches between the skill sets of the attorneys. One often thinks about how one does not want a given set of facts to be the ones which set a particular legal precedent, but as a clerk I was more often worried about the precedent-setting effect of cases where important issues were being inadequately lawyered -- making potential valid arguments sound off-the-wall and foreclosing them for everyone. And even if we could be assured of competent and evenly-matched counsel, it just isn't true that concrete adverseness always promotes a full airing of legal arguments. An actual controversy means that litigation positions are chained to the idiosyncratic interests of the litigants, who may have ample reason to not promote certain outcomes or ways of looking at the case (particularly when we're talking about rules which will govern many future cases -- the problem of "playing for rules").

Once the value of the proximate social circumstances is taken out of the occasion, it is possible that advisory opinions would promote better advocacy precisely because only persons and groups who are highly invested in the issue in the abstract, not just because of how it happens to affect them immediately, would bother to argue for it.

So that's the question for the floor: Is there a tension between the decision-making values of modern standing doctrine and constitutional originalism?

Tom Perkins (whom you may remember for suggesting that the rich were at risk of being victims of Nazi-style genocide) suggests that we apportion votes to tax dollars:

"The Tom Perkins system is: You don't get to vote unless you pay a dollar of taxes," Perkins said.

"But what I really think is, it should be like a corporation. You pay a million dollars in taxes, you get a million votes. How's that?"

Just like a corporation! Because the idea behind government is that you should get a cut of the proceeds in proportion to your investment! No, wait, in the public sphere that's known as "corruption". My bad.

Also, if I were more of a mathematician, I'd be (even more) offended by this too:

Pressed for examples of how the rich were being demonized, Perkins said that he feared higher taxes.

"The fear is wealth tax, higher taxes, higher death taxes -- just more taxes until there is no more 1%. And that that will creep down to the 5% and then the 10%," he said.

Yeah, not really sure that's how percentages work.

For my money, Donté Stallworth has the best response to the idea that a gay player in the NFL would be a "distraction" for his team. To wit: an NFL season will always have distractions. If you can't handle one that is as clearly anticipated and broadcasted in advance as this one, you're doomed on the field anyway. That being said, Scott Lemiuex's contribution on the history of the "distraction" argument and other like claims which play the "it's not me, it's everyone else" game, is very good too.

Bills have been introduced in Congress, as well as several state legislators, which would cut or strip funding to organizations (such as the American Studies Association) engaged in an academic boycott of Israel (the bills often have somewhat broader language than that, but nobody denies academic boycotts of Israel are the target. Though, to be fair, no other country is being targeted for an academic boycott). In any event, "merits" of the boycott aside (and I am of course on the record as viewing the BDS movement as fundamentally anti-Semitic in character -- David Hirsh makes the points far more eloquently), one can still view such bills as a serious threats to academic freedom -- a freedom which includes the freedom to take wrong, or even racist, positions.

But undoubtedly, I'm an exception, right? Those dreaded Jewish organizations who are ever-eager to crush the slightest dissonant voices on Israel -- why, they must be leading the charge for these laws? Or not:

Two of the major Jewish groups are not planning to back a new bill that seeks to pull federal funding from universities that boycott Israel, according to a source familiar with the situation.
“The legislation is almost certainly unconstitutional, it’s a bad law, and it reinforces stereotypes about Jewish influence,” said one pro-Israel Democratic strategist familiar with the groups’ thinking. “It’s so bad that AIPAC and ADL oppose it.”
“There’s no way they’ll say they support it,” the strategist said.
[...]
“We welcome any effort to challenge or fight the boycott, divestment and sanctions in colleges and universities,” said Abe Foxman, director of the ADL. “However well-intentioned, we are not sure that this bill would be the most effective means of recourse.”

AIPAC and Abe Foxman -- those are the typical bogeymen, aren't they? And while they aren't mentioned in the context of the proposed federal legislation, the AJC has come out against a similar bill proposed in New York. Together, AIPAC, the ADL, and the AJC comprise a fairly hefty chunk of the Jewish center, center-left, and center-right.

I predict this development to have precisely zero influence on how people speak about the contribution of Jewish groups to this debate.

Two more entries on my recent fascination with free speech and the private sphere. Unfortunately, these are not exactly of the highest quality.

The first is an atypically bad post from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.

Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.

Meanwhile, Jenny Jarvie has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.

Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.

What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.

Jon Chait on treating college athletics like a market:

the vast majority of college athletes have negative market value. A reform based on letting them capture their true market value is going to fail to protect the interests of the vast majority of college athletes. This includes not only every athlete in a sport other than football or men’s basketball (which of course includes all-female athletes), but also many of the players who participate in the most competitive football and basketball programs.

I'm no grammar maven, but I'm pretty sure that hyphen is misplaced.

I'm taking my first vacation from work next week (week of February 10). I'm taking vacation now in part because its my birthday on February 11 (and who wants to celebrate in the office), and in part because I didn't take vacation over the holidays because I had volunteered to work on a bunch of cases with filings on or close to New Year's Day. In the immediate term, this means that I have a ton of work to do this week, since I'm trying to get it in under the wire. But nonetheless, it is very exciting -- I'm looking forward to having the week off.

People have asked me "where [I am] going" for my vacation, to which I have answered "my bed." I don't like traveling much to begin with, and in the context of a vacation I view it as basically sacrificing at least a half day if not more for no discernable benefit. I can sleep in and read books in my apartment just fine. Which leads to the second primary way I've prepared for my vacation: buying five books on deliberative democracy, which I will use to help write a new law review article I'm working on.

I haven't mentioned that part of the vacation plan at the office yet, but if I did I'm sure they'd look at me like I'm crazy. "You're taking a vacation from being a lawyer by doing a bunch of legal (or law-related) reading and writing?" This response makes superficial sense, but I honestly can't parse it. I understand why someone might not be interested in doing academic research and writing for fun, but they of all people should know that such work is a far cry from our day-to-day legal work. This is not a postman going for a walk on his day off.

I'm reminded of a story from when I was a summer associate at the firm. I was at some after-work event (I think it was basketball), and I had brought a book to read during the downtime -- a retrospective honoring the career of Iris Marion Young. A well-meaning associate saw me reading the book and said, concerned, "I hope you're not working tonight!" Now, of course, he was absolutely right that a summer associate should not have to be working through a Friday night after-work firm event -- that's the whole point of being a summer! And I told him no, this book was just for pleasure. But I wanted to say "buddy, if there's a practice group here where I might plausibly be reading books on contemporary feminist theory and democratic practice for work, by all means direct me to them right now because I need to get on that train."

In any event, writing is how I relax. Reading is how I relax. Firm life gives a lot of opportunities to read and write, of course, but not always in the forms and topics one might like. So for my vacation, I'm going to read what I want to read and write what I want to write, and I assure you I will enjoy the break thoroughly.

At Tablet, Yair Rosenberg has an interesting retrospective on a 1961 debate between British historian Arnold Toynbee and Israeli diplomat Yaacov Herzog, regarding the legitimacy of the state of Israel. What is striking about the debate is how little the terms have shifted (particularly notable given that this was before Israel took over the West Bank and Gaza following the 1967 6-day war).

Toynbee was casually anti-Semitic (he considered Judaism to be a "fossil"), a sentiment that was hardly uncommon amongst elite Englishmen of the time period. And his main charge -- which prompted the debate challenge in the first place -- was his claim that Israel was morally equivalent to Nazis. Then, as now, this claim was trotted out without any sense of proportion: "Nazi" was little more than a stand-in for "person who did bad things"; because Israel had undoubtedly done bad things in the War of Independence, Israel was akin to a Nazi state. The problem, as Herzog observed, is two-fold.

First, "Nazi" is not in fact accurately used to describe an otherwise run-of-the-mill state that committed some wrongdoings. To diminish Nazism to such genericism is in effect a form of Holocaust denial -- it replaces the incredible magnitude and gravity of the Nazi Holocaust with a vague wave at condemnation. One sees this too with how some people treat racism -- stripping away the sheer sweep of centuries of ruthless murder, rape, terrorism, and enslavement; replacing it with some bromide about how for awhile we may not have quite lived up to our highest moral ideals. And if that's all racism ever was, then sure, every time President Obama suggests a policy proposal we find objectionable really is "just like slavery."

Second, if "Nazi" really does mean nothing more than "state which has committed a wrongdoing," then not just Israel is guilty. The UK is a Nazi state. America is a Nazi state. India is a Nazi state. Each of Israel's Arab adversaries is a Nazi state. Palestine will be a Nazi state. So why, then, should Israel be uniquely called out for being a Nazi state? If "Nazism" really is that mundane, it's almost not an observation worth making. But what's really happening is that Jews are being asked to meet an idealized standard of justice expected of nobody else, and when they inevitably fail to do so it is not seen as failing "normally", but rather as sharing space with the most monstrous of monsters.

But all of this, to me, raises another questions, which is "why Nazi?" If what we're really talking about is just a banal form of evil -- or hell, even if we're talking about much more serious, extreme evil -- Nazis are hardly the only choice we have. As offensive as the "apartheid" state analogy is, I will credit it as being less offensive than calling Israel and Jews Nazis. The reason people use Nazi this way -- divorced from the actual historical significance of the term, untethered from any proportionate sense of what the Nazis actually did -- is that it wounds Jews. That label appeals over all other ones because it has the unique capacity to hurt Jews on account of their Jewishness. It's akin to "criticizing" a Black person by calling him a plantation owner, or a lynch mob leader. It gains its power from a history of oppression, and when you are leverage historical oppression against the oppressed, that's prima facie evidence of racism or anti-Semitism no matter what your motives are.

Within all this, it is important to remember what the Holocaust actually "establishes" as relevant to contemporary discussions about Israel and Jews. Many people contend that Jews think the Holocaust has rendered them "perfect", unassailable, or immune from criticism. They seek to leverage the rhetoric of the Holocaust against Jews so as to remove this allegedly illicit gain, this wrongful bounty we illegitimately seized after being so lucky as to have been subjected to mass murder. But the Holocaust does not establish Jews are perfect -- it establishes that non-Jews aren't.

The fact of the Holocaust and other acts of anti-Semitism doesn't establish that Jews are unassailably virtuous. Why would it? There's nothing about oppression that purifies its victims -- imperfect people can be victims too. What it establishes is that non-Jews are not perfect; it destabilizes the hegemonic presence of non-Jewish voices and thus creates space for Jewish voices to be heard. To the casual observer that looks like a claim that Jews are "perfect", but that's only because Jews are claiming the right to speak on equal terms with a non-Jewish presence that had previously arrogated to itself a label of universal transcendence.

The frame that oppression makes the oppressed "perfect" is really more of a reactionary step. The framework sets up for Jews (and other minorities) a standard they can't possibly meet. And once they fail to meet it, it justifies stripping the label of "victim" and returning to the status quo where they can safely be ignored. It obviates the need to problematize the non-Jew in favor of providing a temporary elevation of the Jew to non-Jew status, contingent on the Jew maintaining a standard of conduct that nobody else can or is expected to meet.

(Original Tablet link via Daniel Goldberg)

Very busy at work right now. But I have a vacation coming up in a week. These two statements are not unrelated.

* * *

A fascinating peek at Utah's efforts to reform police raids.

The White House has announced it is looking to provide clemency to low-level drug offenders convicted in the days of overly-harsh mandatory minimums. Reason Magazine wonders if he's serious (both links via Radley Balko).

Maine Supreme Court rules that rules that banning a female transgender student from the girls' bathroom violates the state's anti-discrimination law.

Ken White at Popehat tackles people who compare critical speech to "lynch mobs", "the Holocaust", "witch hunts", and other like terms. Fair enough, but I again refer back to this post. "Bullying", for example, often includes physical intimidation, but just as regularly is "just" speech -- yet even Ken seems to recognize that this legitimately seriously harmful in a way that he dismisses in other contexts.

Meanwhile, Jon Chait tackles the ludicrous opinion of the Wall Street Journal that maybe rich people really are at risk of a Holocaust-style wave of terror. Kevin Drum takes a closer look at why -- against all evidence -- the rich "feel" besieged.

Who would have thought Madden 25 would have a kill screen?

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Without a doubt, the most important thing about this story is that JDate and Christian Mingle collaborate on an annual survey.

Also, Jews are less likely to cheat. So that's good.

David Hirsh, in a masterful post gets all the key points of the anti-racist and counter-anti-Semitic movement against the BDS in one place. This is a necessary resource (Engage is already a necessary resource, but this post is an absolutely invaluable compilation).

Ta-Nehisi Coates writes:

From time to time, someone will ask why I write so much about racism. The underlying charge is that a writer should cease to follow his curiosities. I might well retort that Paul Krugman should stop writing about the economy, or Jeff Goldberg should stop writing about the Middle East. The difference is that the world which racism made is seen as a niche issue, with no real import. "Gender" and "women's issues" are often regarded in the same way.

And I thought that was strange, because of course plenty of people do say Jeff Goldberg should stop writing about the Middle East -- less because it is viewed as a "niche" issue and more because Goldberg is viewed as a niche person. Specifically, it is often argued that -- as a Jew with substantial ties to Israel -- Goldberg is biased, that he should leave the discussion to neutral, non-partisan gentile hands.

I'm reminded of the post I wrote about Judge A. Leon Higginbotham's opinion declining to recuse himself in an employment discrimination suit (Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (E.D. Pa. 1974)). Judge Higginbotham was black and a known civil rights advocate, and therefore, according to the defendants, biased. One of the examples Judge Higginbotham cited in declining to recuse himself was his Jewish colleagues:

I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jewish Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. (180)

My post, of course, turned the full circle -- in response to people who do say that Jews should not speak or should not be in positions of authority on matters relating to Jewish interests -- I used Judge Higginbotham's powerful opinion as a counterpoint. Higginbotham uses the example of Jews to help Blacks, I use the example of Blacks to help Jews. There's no jealousy, only an example that can help check a common foe.

And on the flipside, why do we see the same rhetorical tropes used to silence Jews and Blacks alike, in seemingly such different contexts? Well why wouldn't we? If a given tactic for maintaining a particular hierarchy has worked for one group, why wouldn't it be adopted and utilized by others trying to preserve different hierarchies? The issue here isn't that all oppressions are fundamentally the same, or any such trite nonsense. But oppression is, after all, ultimately about results. Racists take their cues on what has worked for anti-Semites, and vice versa. The prevalence of rhetoric that asserts Jews shouldn't speak on Jewish issues, versus that Blacks shouldn't speak on Black issues, depends primarily on (a) the relative well-being of the groups in question and (b) what community of speakers you're dealing with.

Repeat after me: The UN is a neutral organization which is not remotely hostile to Jews qua Jews:

The Obama administration is “deeply disappointed” with a decision by UNESCO, the United Nation’s cultural arm, to cancel the opening of an exhibition on the Jewish presence in the land of Israel and is seeking its placement “as soon as possible.”

Complaints by Arab states led UNESCO to cancel the exhibition, organized by the Simon Wiesenthal Center along with the governments of Canada and Montenegro. It was scheduled to open Jan. 20 at the Paris headquarters of the United Nations Educational, Scientific and Cultural Organization.

“The United States is deeply disappointed and has engaged with senior levels at UNESCO to confirm that the action to postpone does not represent a cancellation and to underscore our interest in seeing the exhibit proceed as soon as possible,” a State Department official said, speaking on customary anonymity. “We trust that UNESCO will approach this issue fairly and in a manner consistent with the organization’s guidelines and past precedent.”

UNESCO director-general Irina Bokova said Wednesday in a letter to the Simon Wiesenthal Center that the exhibit, titled “The People, the Book, the Land — 3,500 years of ties between the Jewish people and the Land of Israel,” would be postponed indefinitely. She said the decision arose out of UNESCO’s support for peace talks between Israel and the Palestinian Authority.

One can almost see the crocodile from which the Arab League's tears emerge:

The cancellation followed a letter sent to Bokova on Jan. 14 by the Arab group at UNESCO. “The Arab group is deeply disturbed by the exhibition, which it condemns,” said the letter from the group’s president, Abdullah Elmealmi.

“This cause is championed by those who oppose peace efforts,” Elmealmi said. “The media campaign accompanying the exhibition will inevitably damage the peace talks, the incessant efforts of U.S. Secretary of State John Kerry and UNESCO’s neutrality.”

If peace talks are so fragile such that acknowledging Jews have a connection to Israel will damage them, surely we are doomed. Though I suppose that all depends on what terms one expects "peace" to occur on.

UPDATE: UNESCO's statement is here.

UPDATE 2x: It now appears that the exhibit will open in June after a six month delay.

Various permutations of this essay by Miya Tokumitsu, which attacks the concept of "Doing What You Love" (DWYL), has been making the blogospheric rounds to much applause. Allow me to dissent. Tokumitsu does not do nearly enough to demonstrate a causal link between the DWYL mentality and erasure of the lives of working class. Indeed, if anything DWYL is a valuable contributor to our understanding of "work", including for the "non-creative" working class.

Summarizing and simplifying, Tokumitsu observes that there only certain classes of jobs, typically held by certain classes of people, which are even candidates to be a job one might "love". The vast majority of jobs, including jobs necessary for the maintenance of "loved" jobs, are not going to be particularly fun or intellectually stimulating no matter what we do. Therefore, DWYL is inherently classist: "labor that is done out of motives or needs other than love--which is, in fact, most labor--is erased." Meanwhile, DWYL encourages exploitation -- it is basically a way to make workers content with getting less in the way of tangible proceeds in favor of nebulous emotional satisfaction.

As someone who has in the past few years done both a job that I loved (in the classic DWYL form), and a job that, we shall say, does not fit into that category, I feel well-positioned to discuss this issue. And given that the latter job paid triple the former (loved) one, I can even speak to the trade-off between tangible and intangible job benefits.

But let's not start with me; let's start instead with the claim that DWYL is class-divisive and "erases" workers whose jobs are not candidates to be loved. Put bluntly, I'm skeptical that the wealthy need the aid of a mantra to forget about the life and working conditions of the lower classes. That's really more of the default setting. The alternative to caring about how workers feel about their jobs emotionally is not necessarily caring about what workers get out of their jobs tangibly -- it can very easily be (and historically has been) caring about neither. A similar critique can be leveled at her claim that if someone does not obtain profit from pursuing their passion, DWYL implies that the fault must be in their enthusiasm. While I've never actually heard that assertion made, I admit I'm never surprised at the capacity of some people to attribute any deficiency in the lives of the working class to their own deficiencies. Suffice to say, this tendency predates DWYL, it is not caused by it.

What DWYL recognizes is that the tangible products of a job are not sufficient to provide for fulfilling lives. One can be tangibly provided for at market rates and still not have "enough". In other words, DWYL is in many respects a (admittedly inchoate) statement about a substantive entitlements -- that we are not owed just whatever dollar amount our employer puts in our pocket, but some level of happiness, dignity, and respect out of our job. Those values should be included in our calculus of what workers are provided.

Indeed, some of her treatment of improved intangible working conditions strikes me as almost incomprehensible. She quotes Marc Bousquet as saying that the "loved" academic job environment actually presents a model for corporations:

How to emulate the academic workplace and get people to work at a high level of intellectual and emotional intensity for fifty or sixty hours a week for bartenders’ wages or less? Is there any way we can get our employees to swoon over their desks, murmuring “I love what I do” in response to greater workloads and smaller paychecks? How can we get our workers to be like faculty and deny that they work at all? How can we adjust our corporate culture to resemble campus culture, so that our workforce will fall in love with their work too?

From this analysis, she concludes "Nothing makes exploitation go down easier than convincing workers that they are doing what they love."

Reading the above, one would think that the way a corporation makes people love what they do is by casting an incantation or spiking the cafeteria with hallucinogenic drugs. In reality, to make workers happy by means other than a pay raise, one has to do things that make workers happier with their jobs. Those are real benefits, not chimeras -- I'd take my less-paying but more loved job over my less-loved, better paying counterpart in a heartbeat. The trade-off isn't infinite, of course, but all that demonstrates is that neither the tangible nor intangible proceeds of work are sufficient for self-fulfillment.

Which cycles us back to those workers whose jobs are not and cannot be made loveable. We should say here that almost any job can be made, if not loveable, than at least more likeable -- by being treated fairly and with respect, for instance, or by having some security such that one isn't not in constant dread of being tossed on the street. But even to the extent these jobs lie beyond true DWYL, the concept still matters because it provides a contrast to the prevailing counternarrative -- "the value of a honest day's work." That mantra, which by my lights is far more likely to represent the real competitor to DWYL (as compared to some sort of cross-class solidarity pressing for higher salaries for everyone), cares neither whether the worker is happy or whether they getting significant tangible returns -- value comes from working whatever job the market provides at whatever rate the market pays. I'm reminded of the archetypical 50s parent who, upon hearing that his son isn't happy at work, bellows that "You hate your job? I hated my job too! That's the point of a job!"



DWYL recognizes, at the very least, that the emotional side is important -- and anytime the American cultural zeitgeist recognizes any form of substantive entitlement as necessary for a fulfilled life, I'm inclined to jump on it. And to the extent we do view DWYL as a form of substantive entitlement and we simultaneously reckon with the fact that certain people are not (and likely cannot get it), that does provide a fulcrum from which those people can leverage a claim for greater tangible benefits as compensation. Of course, I'm not saying it's a guarantee that thinking about DWYL will cause wealthier Americans to recognize the deprivations faced by their working class peers -- as I said, wealthy Americans hardly need any excuse to ignore others outside their class. But attribute the lack of cross-class consciousness to DWYL is difficult to justify.

The bottom line is that the notion that we can view work solely through the lens of the monetary returns workers get doesn't cohere to how people of any class actually view their work. We don't just want "fulfillment" or "respect", but we don't just want a dollar figure either. It's obviously true that if one is being paid little, the marginal value of each additional dollar is going to be higher compared to additional "respect" or whatnot. But that doesn't change the fact that thinking about work in a way that's helpful to workers requires a holistic approach. DWYL matters because it is a recognition about what workers are owed, and any sort of public understanding of the proceeds of work that starts from what workers deserve, rather than what the market deigns to give them, is in my book a good thing

Pinkwashing! Brownwashing! Poorwashing! Songwashing! Every form of washing imaginable:

Rose Fostanes, a diminutive 47-year-old Filipina caregiver, has emerged as the newest star of Israeli reality television, winning the singing competition “X-Factor Israel” on Tuesday and establishing herself as something of a national phenomenon.
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In an upset victory, Fostanes beat out three other finalists by performing crowd-pleasing renditions of Frank Sinatra’s "My Way," Alicia Keys' "If I Ain't Got You," and "Sweet Dreams" by the Eurythmics.

Fostanes arrived in Israel six years ago to work as a caregiver so, like millions of other Filipino workers around the world, she could send money back home to her family and her girlfriend.

Obviously, I support anyone who picks "Sweet Dreams" as part of their finals run.

Say what you will about the D.C. Circuit's net neutrality decision, but I can't get too upset at any decision that illustrates how the internet works by referencing the hypothetical journey of "a video of a cat" from YouTube to the discerning internet consuemr ("who then views and hopefully enjoys the cat.").

Also quotable: "After all, even a federal agency is entitled to a little pride."