A woman for whom I am handling a legal problem has rheumatoid arthritis. To treat it, she takes steroids. One of the side effects of the large doses she requires is weight gain. When we first met, she felt obliged to tell me why she is so large. Now that her case is coming up for trial, she is asking me to handle it without her having to be present in court. She doesn’t want the jury to see her, because she believes they would be prejudiced against her because of her size. The worst of it is, I think she’s right. This is as uncomfortable as I’ve been since the time, right after 9/11, when I had a case up for trial in which both parties were Arab-Americans. My opposing counsel and I agreed, with only a sketchy consultation with our clients, that this case should not go to a jury, because there was no way to predict which way their almost inevitable anti-Arab prejudice would work to screw up the law and the facts.
Archive for February, 2008
A simple click of a mouse should easily tell us how many charities and government programs are directed specifically toward children. It’s a lot. It’s a lot more than the number of similar programs directed to adults, or to the general population of all ages. One of the major legislative conflicts of the last year had to do with extending the federal funding of health insurance for children. Congressional Democrats and the President chose to take their respective stands on that issue because it was the ultimate causus belli. After all, if the President wouldn’t even fund health insurance for children, that proved what a hard-hearted ideologue he really is. The fact that American adults between 18 and 65 have no federal help paying for health care can conveniently be ignored, because…. Well, why? Most of us don’t even think about it.
Because, I think, we presume that adults of working age can take care of themselves, and if, by making various bad choices in their adult lives, they can’t take care of themselves, they deserve their plight. But their children didn’t make bad choices, except [snark alert] in their selection of parents. The children had no choices at all. Therefore they deserve whatever help we can give them without putting a crimp in our own lifestyles.
The problem, of course, is that while we simultaneously believe in the individual responsibility of able-bodied adults and the utter innocence of children, we also believe in the family, which means that almost all of the deserving children in question come attached to some undeserving adult. A decade ago, Newt Gingrich tried to unravel that conundrum by urging that children of indigent single parents be placed in orphanages. A century ago, that was the standard solution. It fell out of use because child welfare advocates discovered that even the children of the undeserving poor fared better–survived longer and were healthier–with their own families than in institutions, and that furthermore it was cheaper to pay poor women to care for their own children than to place them in even the vilest of institutions. The Aid to Dependent Children program was not devised to help single mothers; it was designed to provide care for their children at the lowest possible cost. No one but a mother would be willing to provide 24/7 child care for two children at $396 per month. (Yes, gentle reader, that’s the current TANF grant, as of December 2007.) So Gingrich’s proposal never caught on, for purely monetary reasons.
But every now and then, somebody discovers that assisting poor families to raise their own children actually raises the living standards of the adults in the family, and once again we go out hunting for the undeserving adults. Not long after Gingrich’s immodest proposal, somebody discovered that the families of children with disabilities, who were receiving SSI (a minimal Social Security grant roughly twice the magnitude of AFDC) were able to afford cars, television sets, and other luxuries inappropriate to their station in life, and yet another witchhunt was launched, leading to many deserving children getting dumped off the SSI rolls. The SSI grant in question, these days, is $603 per month.
This problem has found its way into the private sector as well. If a parent dies leaving either a substantial life insurance benefit or some kind of wrongful death suit proceeds to the children, usually the other parent is named guardian, and is supervised by the court in the management of that money. At least here in Cook County, the judges in question also assume that those funds are for the benefit of the children only, and usually that they should be left intact until the children are ready for college, or suffer a serious medical emergency. If in the meantime they have to live on the street rather than use the money to buy a house, those are the breaks. The parent who provides these benefits has to do a really good job of drafting a will to relieve the surviving parent of this supervision. Otherwise, the court presumes, it is the job of the surviving parent to provide for the children’s ordinary expenses out of her (usually) own earnings. Most of us presume that any life insurance funds we leave our children should be used for the benefit of the whole family. Put it in writing, folks, or you may bequeath your spouse a pile of trouble.
Except–sometimes the spouse is the problem. Men who pay child support to the mothers of their children often have trouble with the idea of letting “the ex” control that money. Some perfectly well-intentioned men–not deadbeat dads at all–actually ask me (in my incarnation as a divorce lawyer) whether there is any way the child support can be paid into a trust fund for the child’s college education. Getting the child from here to the gate of the college is the ex’s problem, apparently. One such father, when I pointed out that in the meantime the child needed to be housed and fed, said indignantly, “You mean my kid has to pay rent?” (I reminded him, as delicately as possible, that a two-bedroom apartment rents for more than a one-bedroom apartment, so unless he wanted the kid sleeping in the kitchen, somebody would have to pay rent on his behalf.)
Speaking of getting from here to the college gate, of course, brings us to the one institution that is operated for all of our children, and only for children–the schools. Obviously, if a society is trying to do good for the children of undeserving parents without giving aid and comfort to the parents, the schools are the place to do it. Kids not getting enough to eat? Feed them lunch, and even breakfast, at school. Kids not reading enough? That’s what school libraries are for. Kids not getting enough exercise? Send them to P.E. Kids living in chaotic environments? Keep the schools rigidly structured. Kids dressing poorly? Put them in school uniforms or at least impose a dress code. Fathers not home? Hire male teachers, and whenever possible, put them in charge. Nobody home till suppertime? Extend school hours. Nobody taking the kid to the doctor? Hire a school nurse. Do everything for the children that can possibly be done, so long as it is done outside their homes and cannot possibly benefit or even be credited to the parents. But the data, and the teachers, tell us that even at their best, the schools cannot fill all of the deficiencies of homes and neighborhoods full of poor adults. The best thing an indigent parent can do for her children is move to a middle-class neighborhood. But middle-class neighborhoods feel obliged to protect themselves and their children by excluding just such indigent parents and their children, and they have the clout to do it.
We Americans pride ourselves on having no social class system, and above all no hereditary caste system. Any child born in America can grow up to be president. Except that most of the things that can put a child on the road to achievement are perquisites of where the child grows up. And that in turn is determined by the achievement, or lack of it, of the child’s parents. We aren’t keen on the right of a child to inherit his parent’s wealth, if any. But we believe strongly in the right of a parent to bequeath his wealth to his children. And the most important form of wealth most of us have is our homes–not merely the four corners of the building in which we live, but its location and the perks that go with that location. Those of us who can, give our children all the “advantages” we can afford, mostly having to do with safe neighborhoods and good schools. For the children of those who can’t, we collectively and grudgingly provide charity and public benefits, all carefully arranged so as to give no benefit to their parents.
Google “inequality” and you’ll find the most recent data on the number of poor people whose parents were poor and whose children are poor. It’s a very large proportion, and last I heard, it’s getting larger every day. Our dream of saving the deserving children without rewarding their undeserving parents isn’t working. It’s right up there with rubbing your stomach and patting your head at the same time. And since we would rather deprive millions of innocent children, and sometimes even ourselves, of deserved benefits than grant such benefits to a single undeserving adult, this situation isn’t going to change any time soon.
For the Umpteenth Time in My Adult Lifetime, I am Really Really Really Ashamed of the American Political ProcessFebruary 24, 2008
What mostly bugs me about this episode is the conservative bloggers who have actually translated Michelle Obama’s “For the first time in my adult lifetime, I am really proud of my country” into “Mme. [sic] Obama hated America till now.” How does it offend me? Let me count the ways:
1. It indicates lousy reading comprehension. “Really,” in this case, doesn’t mean “truly,” it means “very.” And anyway, it’s hyperbole.
2. It indicates a mindset that equates lack of pride with hatred. Are Americans allowed any other feelings about their country?
3. It plays into the whole stereotype of liberals as people who “blame America first.” Which, in the first place (a) ignores the whole Fred Phelps phenomenon [he’s the minister who gets his congregation out demonstrating at the funerals of American soldiers killed in Iraq, on the premise that America, and those who fight for her, deserve opprobrium because America tolerates gays–how’s that for blaming America first?], and (b) also ignores the fact that patriotism, to be at all useful, requires an element of critical awareness. “Rah rah rah” never won any battles. (Unless you count Joshua blowing the trumpet at Jericho, and that was, after all, a miracle.)
But, aside from all that, I’m just really irritated with the “gotcha!” brand of electoral politics, wherein one waits for the “other side” to “goof” and then jumps on them with all four feet. At roughly the same time, Obama is getting trashed by Clinton’s people for using other people’s ideas in his speeches. Presumably this is a way to undermine the efficacy of the speeches in question, which are Obama’s best weapon right now. But who on earth ever said a political speech has to be original? It’s not like a Ph.D. thesis, for pete’s sake!
On one hand, I have always been distressed that politicians can get up in front of my students (yes, gentle reader, I used to be an English teacher,) perhaps only a few hours after my impassioned lectures deploring plagiarism, and enunciate as their own words that we all know were written by someone else! So this time, Obama’s ghost writer has borrowed ideas from somebody else’s ghost writer. Big deal. There are a limited number of important ideas in the political memeosphere at any given moment, and nobody has any business trying to copyright them. (In the interest of full disclosure, I was also a ghost writer for a brief period of my youthful life, for a political candidate who never won anything, but whose campaign set the stage for much of the political life of “the Sixties.”)
Our husband, Mr. Wired (the WiredSisters are all married to the same guy, an arrangement known to cultural anthropologists as sororal polygyny) says no political candidate should be allowed to mention the other candidates in a speech or position paper. Just set out your own position and see how people like it. That would mean no more gotcha. Wouldn’t that be loverly?
Last week I chanced to tune in NPR to a BBC interview with Justice Scalia on the subject of torture. Actually the interviewer and Scalia were both using the word “waterboarding”, which I really hate because it sounds like a sport. I prefer the original Spanish “tortura del agua.” Anyway, I sat there in the car as snow fell round about me, listening intently until Scalia said something like, “of course, the police don’t have the right to slap a suspect around.” At that point I decided the next time Congress vets a Supreme Court nominee, they need to check more carefully which planet the nominee has been practicing law on, and went into the nice warm house.
Of course the police have the right to slap a suspect around. In fact, they have the right to slap anybody around, but preferably people in handcuffs, either to get information, or to exact appropriate deference, or to punish a prior attack on the police. Similarly, “correctional officers” have the right to do the same sort of thing to prison or jail inmates. We all know that because one tv cop show after another shows cops and guards doing this kind of thing after being clearly labelled as the good guys. The viewers always applaud, even when some jackal of a criminal defense lawyer has the nerve to complain. Americans want the police to be above the law. Or, more accurately, Americans want the police to be above any law that might otherwise protect bad guys.
Remember Abu Ghraib? Most of the “bad apples” who brutalized prisoners there were, in their civilian lives, prison guards. And back home out of their Army uniforms, they were probably never considered “bad apples” for behaving exactly the same way. They may have been aberrations in the Army, but not in the civilian prison system.
All of which is distantly related to the history of corporal punishment in American culture. Anyone who has ever been to law school knows that touching any other person without that person’s consent is battery. Let me repeat that: TOUCHING ANY OTHER PERSON WITHOUT THAT PERSON’S CONSENT IS BATTERY. Which is both a crime and a tort. Doesn’t matter whether the person is injured or killed. A mere pat on the back will suffice. When I was a first-year law student, of course, we all got a big kick out of the concept. It was kind of like “medical student’s disease,” in which the student feels the symptoms of every illness he studies. Law student’s disease causes the student to feel aggrieved at every criminal or tortious action committed against her. Being stuck in an elevator is false imprisonment. Having to listen to a student of the opposite sex tell a dirty joke is sexual harassment (unless you laugh.) We were all well aware that most unconsented touching, and indeed, most unconsented hitting, never arouses the interest of the criminal justice system.
We hadn’t thought about how such an utterly chowderheaded concept as common law battery ever found its way into the law books in the first place. Those of us who, later, had occasion to deal with “domestic violence,” might know that, until fairly recently, men were presumed to have the right to hit their wives, so long as no serious damage resulted. We might even know that, until about fifty years before that, an employer was presumed to have the right to “chastise” a servant or employee (again, this side of serious injury.) We were all well aware that teachers and parents had the right to “discipline” children. It never occurred to any of us to try to square those realities with the dogma of common law battery. We just chalked up the latter as one of those legal fictions that occasionally shade all the way into legal fantasy. So, one suspects, did law student Scalia, in his day.
I haven’t researched this question at all, and maybe the facts are lying around for any interested scholar to see. If I do stumble upon them later, I’ll get back to you. In the meantime, I’m pretty sure I know what really happened.
The common law concept of the inviolability of the person of the free citizen was never meant to apply to prisoners, criminal suspects, women, workers, or children. It was, in fact, a perk of the upper classes. In the Army, it still is. Enlisted personnel can slug out their mutual hostilities with relative impunity, so long as nobody gets seriously hurt. But an enlisted man/woman who raises a hand to an officer can be court-martialed.
Once we stopped admitting we had an upper class, we Americans had to at least nominally believe that every adult was entitled to personal inviolability. It was a gradual process, which has only very recently barred teachers from hitting students, and has not yet (in the US) extended to parental “spanking.” But it has never extended to the “criminal classes,” and probably never will. The Europeans generally take the concept all the way, but we Americans don’t. The closest I’ve seen to an explanation of the difference came from James Q. Whitman’s Harsh Justice (Oxford, 2003), which suggests that, when democracy hit the US, it led us to decide that everybody is a peasant, while, when it hit Europe, it led the Europeans to decide that everybody is an aristocrat. So Americans punish everybody the way we all used to punish peasants, while Europeans use the more humane methods previously reserved for aristocrats. Our law books, on both sides of the Atlantic, all endorse the personal inviolability of all adults, but only the Europeans really believe it. And some of them think children should be immune from corporal punishment too, so we know they can’t really be taken seriously.
(Does Scalia spank any of his 10 kids? It would be interesting to know. But I digress.)
I still remember 1968. Specifically, I remember the episode at the Chicago Democratic National Convention, at which the police charged into a crowd of demonstrators and indiscriminately beat them up. I wasn’t there (I left before that happened, and got tear-gassed in the process,) but I heard the police spokesman who later explained/justified the event by saying, “They were insulting our mothers. We couldn’t let them do that…” Later explanations claimed the demonstrators had been throwing stuff at the police, probably because by that time some lawyer had advised the police that mere insults were not legal justification for the use of force. I tend to believe the earlier story. But the police, and most Americans (judging from the outcome of the elections that year) were quite convinced that a demonstrator who insulted the cops completely deserved any force used by the police, even where serious injury in fact resulted (as it did in a few cases in 1968.) In fact, most of us apparently believed that anybody who happened to be in the vicinity of people who were insulting the police deserved to be hit.
I’m not even going to talk about gun violence, which probably makes me the only blogger this weekend who doesn’t, other than the cooking experts. But American culture endorses violence, with and without weapons, as a way to enforce authority. We need to pay serious attention to this problem, and decide whether we really want to carry it into the 21st century.
There is nothing inevitable about it. We can change our culture. The Swiss used to keep their economy going by hiring out as mercenary soldiers. They had a really nasty reputation among those who hired them. The Scandinavians, of course, got their start as Vikings, some of the nastiest thugs you would ever not want to meet in a dark alley. The Dutch were pirates. You get the idea. And all of them, these days, are utterly opposed to interpersonal violence. The Scandinavians don’t even spank their kids any more. It may take us another 400 years to catch up with them, but isn’t it time we got started?
By now we are all familiar with the “marriage penalty” in the federal income tax code, if only because getting rid of it is a major part of the President’s tax reduction program. Most of us know that, the year after two working people get married, they will get a wedding present of a considerably higher tax bill (around $1,500.00 on average) than they paid the year before. The original premise of this nasty provision was that two can live as cheaply as one-and-a-half. Which is hard for many of us to accept, especially considering the large number of couples who set up housekeeping together well before (and often instead of) marriage. Whatever economies of scale there may be in sharing a household, people no longer have to be married to achieve them. So the additional tax penalty is no longer a penalty for living cheaply, it is a penalty for doing the religiously and socially acceptable thing and getting married instead of just living together. Most of us think it’s wrong to have to pay such a penalty, and will be glad to see it ended.
But we are less familiar with another marriage penalty built into federal legislation–not in the tax code, but in the Social Security Act and its amendments. The most egregious and sweeping “marriage penalty” is the one levied against recipients of SSI–Supplemental Security Income. This is the federal program for people who cannot work and have no work history behind them to qualify for Social Security retirement and disability payments.
SSI currently covers roughly 6.5 million people. They may be elderly people who have spent their lives working in jobs that did not pay Social Security retirement premiums–farm labor, domestic labor, work for some governmental organizations and charitable or church groups. They may be young people who have serious disabilities and have never been able to work at all. But (effective January 1, 2007) the Federal benefit rate is $623 for an individual and $934 for a couple. That is the most income they are allowed to receive. Every penny they get from every other source gets taken off the SSI grant.
Got that? Two people with serious disabilities, who cannot expect ever to be able to support themselves, and who have to accept a life with physical limitations, have to pay $3,500.00 a year, one quarter of their total income, for the privilege of being legally married. That’s roughly twice as much as most taxpayers pay in the IRS marriage penalty. And, obviously, it leaves them a lot less to live on than most of those taxpayers have. Maybe two can live as cheaply as one-and-a-half, at the middle and upper ends of the income scale. But SSI recipients are squarely at the bottom of that scale. Just try to imagine living alone on $600 a month. Now try to imagine living with your spouse on $934 a month. Try to imagine having to choose between violating the morality you were brought up with, accepting a 25% reduction in an already inadequate income, and spending an already difficult life alone.
We don’t know, and currently have no way of finding out, how many couples on SSI have been deterred from marriage by the SSI marriage penalty. We certainly have no way to find out how many of those have accepted unlicensed cohabitation, with or without a religious ceremony, and how many have simply had to spend their lives without the companionship the rest of us take for granted. So we also have no way of knowing how much it would cost to end the other marriage penalty.
By the most wildly pessimistic calculation, let us assume that all of the 6.5 million people on SSI are single people, half of them male, half female. Then let’s assume they all marry each other. That’s 3.25 million couples getting an extra $3500 a year each, or $10.3 billion total. Compared to the tax cuts Bush is currently trying to sell, well into the trillions, that’s peanuts. While our president and lawmakers are bragging about our surpluses and falling all over each other to give them “back” to the most fortunate of our citizens, surely we can at least spare a thought for the least fortunate and their right to “the pursuit of happiness.” Let’s end the SSI marriage penalty now.