08 February 2012

Combo Plate: Link Sausages and a Roast

First, the link sausages; then, the roast...

  • Now here's an award I can definitely support: The first Hatchet Job Award (for vicious, but justified, book review) has gone to a trenchant review of a really awful book. Let's keep those nasty reviews of crap coming!

    All seriousness aside, a reviewer's job is not to function as an outsourced marketing and publicity tool. Particularly in this day of decreased (or, in the case of self-published, zero) editorial attention and gatekeeping, reviewers must ethically and otherwise be prepared to say "Bullshit." A rule of thumb that I developed during my time amongst the savages literati is that a credible, reputable review source publishes about one-third negative reviews. One might expect more now, with the absence of editorial attention being paid to a greater and greater proportion of works... but that sort of assumes that the editorial attention paid two and three decades ago was competent, and too often it wasn't, so one-in-three still seems about right. The point of a negative review, though, must be to state why and support it from the text of the work being reviewed — not to demonstrate that the reviewer is clever, or has a vendetta against the author of the work being reviewed, or anything external to the work. That's why I almost never reviewed "military science fiction" during my more-active-and-public reviewing days: My disdain for amateurs and dilletantes in a field in which I am/was a professional was too likely to make a review more about me than about the work.

  • Here's an interesting piece on open-source textbooks for introductory classes that demonstrates precisely why reviews must focus on the works. The piece focuses on broad generalizations about textbooks, and in particular textbooks for introductory courses and their costs (to students and to instructors). Only when halfway into the article, though, does one discover the problem with this particular effort... and then only if one knows something about the respective fields and courses. Rice University has some excellent departments, particularly in the hard sciences. The list of the first few books offered through this program, though, does not draw upon them, and instead falls into the trap of concentrating on rapidly changing (introductory biology) and/or instructor-focused (introductory sociology) courses. The program would have been stronger had it focused on well-taught, well-established curricula like introductory and/or organic chemistry, classical physics, and single-variable mathematics... not to mention that these would all draw upon the strongest departments at the sponsoring university. Midterm grade: C+.
  • The preceding two sausages both reflect a certain censorship of the marketplace that gets more overt consideration when reflecting on literary/journalistic toadyism in a quasiextract from a worthwhile book. The problem with the short piece is that it doesn't go far enough in delineating just how context changes censorship methods while not altering the censorship impulse...

* * *

And so yesterday, the Ninth Circuit ruled that California's Proposition 8 violates the U.S. Constitution (PDF). There's plenty of commentary across the web; I'm going to roast a couple of aspects that haven't gotten much attention.

The first, and most obvious, is the way that Judge Reinhardt structured his opinion as a threat to Justice Scalia. By not relying (much) upon the extensive factual record that Judge Walker made in the District Court, he presents as purely legal a question as possible — limited to California's own circumstances. That sounds like it's tailor-made for Justice Scalia to whomp on, doesn't it? The threat, though, is what would happen on remand if Justice Scalia reverses. If a majority opinion fell even a micrometer short of declaring that marriage is not a fundamental right (and it wouldn't come even that close if the Supreme Court follows any of a dozen or so of its own precedents from the last half century), the case wouldn't end with the Supreme Court opinion. Instead, it would be remanded for "further proceedings consistent with this opinion." That means it would go back to the same panel on the Ninth Circuit... at which time Judge Reinhardt would bring in the facts found by Judge Walker as a foundation for ruling the same way he had the first time. Justice Scalia, in particular, worships the inviolability of the fact-finder in appellate opinions — so if a second opinion from Judge Reinhardt were to be heard for a second time by the Supreme Court, he'd be forced to contradict himself one way or the other.

The second, and most frustrating, is the standard of review. Both the majority and the dissent are forced to deal with what is called "rational basis" review in shorthand, "possible rational basis in pursuit of a legitimate government interest" in its full form, and really means something with much darker shadows off in the corners: That so long as it's a question of policy, we will not overturn legislative and/or executive decisions for which we can construct a rational post hoc justification. Even if that justification was never even considered. Even if that justification was actually rejected (see, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986)). Both the majority and the dissent did a decent job of doing so; I think the majority opinion has much the better of the argument, but then my thinking is not so directly "bound by precedent" (nor by the dubious performance of one side's counsel in this matter... and I say that after having read all of the briefs) as is a sitting federal judge.

Where this really gets interesting, though, is the intersection between "rational basis" review and the factual record in Perry. It raises by implication a question that both sides punted, because every federal judge (and Supreme Court justice) to consider the issue in writing has punted the question:

Under what circumstances — if any — may a justification for removing or withholding a civil right or privilege be treated as "rational" when that justification comes solely or almost solely from religious doctrine?

I would answer "virtually never, and never when that doctrine is used to restrict legal rights or privileges of non-adherants to the religion in question." That is the corollary of the Establishment Clause (and Religious Test Clause, see U.S. Const. Art. VI cl. 3). Religious doctrine is, by definition, irrational, as it is based at its core upon faith in the unprovable/unfalsifiable/nonscientific/nonobservational, even if it uses some of the methods of rational thought to reach particular conclusions. "Irrational" does not always mean "wrong" or "indefensible", of course; but bear with me. As evidenced by the increasing encroachment of anti-abortion ranting on both legislative/executive policies and judicial decisions, I'm obviously not in the majority with that view. So be it: Unlike virtually all of the legislators, executives, and even judges who make those decisions, I've actually been on (and professionally involved with) the pointy end of that particular stick.

Thus, I'd roast the whole damned beast, not just the shoulder. But that's a meal for another time, I suppose.