Genetic Endowments…..

 

DeliriousMe: Ownership and Identity in An Age of Genomic Medicine

by Patricia J. Williams

Published in LOG: Journal of Architecture and Urbanism, Volume 25, Summer, 2012

 

Sometimes it’s hard to count on the sustained attention of university students, distracted as they are by an excessively twittering cyber-world. Every now and then we, their professors, have to toss up something extreme to make them snap to.  In my bioethics class, for example, I announce that I’m going to hire a forensic team to come in and do a sweep of the whole classroom with little sterile sensors that will gather samples of hair, hangnails and whatever DNA may be extracted from their discarded coffee cups.  Then I’m going to spin the whole in a big centrifuge, and, with sufficient time and investment, I shall not only manufacture the first Flawlessly Above Average Columbia Law Student, but…. I shall patent the same.  And thenceforth they will not be able to reproduce without paying me royalties.

It’s a far-fetched scenario, yes, but the question of who owns our bodies–in particular the genomic information that may be culled from routine human shedding—is a matter of evolving legal importance.  Gene sequences in genetically modified plants are already owned and traded on a global scale. In the United States, the case of Association for Molecular Pathology v. Myriad Genetics recently challenged the attempt to patent human genetic sequences related to breast and ovarian cancer.  And if the 2012 Supreme Court case of Mayo v. Prometheus has made clear that processes occurring naturally may not be patented, it remains entirely unclear what will be deemed either “natural” or, for that matter, a “process.”

Beyond the technological questions involved in unlocking the secrets of the human genome, there are emotional ties to our detached but component parts, as well as those proprietary stakes. When Alistair Cooke, host of Masterpiece Theater, died in 2004, his cancer-ridden body was stolen and sold for medical-grade bone grafting; most of us will feel that the crime involved is not just about the property of the body, but is also a violation of the body’s…sanctity for lack of a better term.  When, in 2011, a teenager in China sold one of his kidneys so he could purchase a new iPad, it attracted international media attention for its extraordinary mining of the body for purely pecuniary purposes.

One of the weirder cases exploring this bioethical territory involved South Carolinian John Wood, whose leg was amputated after an airplane crash in 2004. Wanting to be buried “whole” eventually, he had the leg embalmed and placed it in a storage unit with other belongings. But he fell behind on the rental fees, and the contents of the unit were sold to one Shannon Whisnant, who found the leg carefully wrapped and nestled inside a BBQ smoker. Whisnant called the police, who traced it back to Wood. Wood insisted the leg be returned given his sincere belief that, detached or not, it was part of him. Whisnant, however, claimed that he was the purchaser-for-value, and that he hoped to put the leg on display and charge a hefty price for the viewing. “Halloween’s just around the corner,” he explained.

The ghoulishness of this scenario should not obscure the legal issues at stake: should a commodity interest in the contents of the storage unit trump the sacrosanctity of corporeal integrity? Are discarded body parts “alienable” in a free-market sense? Or do they fall in the realm of what we deem constitutionally “inalienable”?

What about DNA? Suppose we assumed that Wood’s genetic makeup included cells that were resistant to some rare disease. Do Wood or Whisnant have any proprietary claim to profits to be derived from the extraction, culture and sale of those cells? Could Whisnant not only display the leg but also publish Woods’ entire genome as part of his Halloween art show? Could the police officer to whom Whisnant brought the leg do a DNA test, retain the sample, patent a method of assaying the extracted data, and ultimately market a pharmaceutical byproduct to patients at $5000 a dose? We all leave trails of our cells wherever we go—under what circumstances should that material be regarded as discarded and thus open for exploitation by finders-as-keepers?

On May 30, 2012, the personal genetics company 23andMe announced that it had procured its first patent, for “Polymorphisms Associated With Parkinson’s Disease.” Patents create exclusionary rights in knowledge; they prohibit non-patent-holders from using that knowledge without permission or the payment of royalties. 23andMe’s patent stems from massive aggregations of data culled from customers who’ve paid considerable money for information about their genetic predispositions for various health risks. While 23andMe’s consumer contract says that no “research” on submitted spit samples shall be done without consent, many customers seem not to have realized that it goes on to define “research” as “academic”—which is to say work published in “peer-reviewed scientific journals.” The contract then distinguishes “research” from “research and development (R&D)” of commercial products—for which no consent is needed.

When announcing news of the patent, CEO Anne Wojcicki declared that she wants “discoveries to move from the realm of academic publishing to the world of impacting lives by preventing, treating or curing disease.” But it is precisely in academic publishing where new ideas are most apt to be freely shared and tested; Wojcicki seemingly wants to dislocate discoveries “from” academia “to” the gated community of patent law–simultaneously designating patent law as the exclusive geography of disease prevention, treatment and cure. As she explains, “Often the only way a company will even think about pursuing a drug lead is if they have assurance that they can recoup their investment.”

Wojcicki frequently expresses her desire to heal, and to broadly share the knowledge gained through data mining. Readers may know that Wojcicki is married to Google co-founder Sergey Brin, whose family history of Parkinson’s disease places him at risk. But that back story, compelling as it may be, is not reflected in the business model either of them pursue—nor should anyone expect it to be. As with any for-profit corporate head, their fiduciary duty is to make money. The realization of any wider or public interest in health care will not come from the private corporate sphere by itself.  The patent system, as well as our corporatized system of R&D, assure that data-aggregating businesses’ real wealth will come not from analyzing individual spit samples, but from the far greater asset of bundling customers’ genetic, lifestyle, and family history for commercial exploitation.

The reality of that exploitation must be bourne in mind by those who so easily send off DNA samples to be analyzed for either medical risk or ancestry tracking.  Over the last few years, “spit parties” have become quite popular as a kind of party game, and as a purported teaching aid in high school and college science classes, touted as both fun and educational.  But we should be much more thoughtful about the ends for which our bodies are being mined. The redemptive thrill of being co-creators of some medical miracle must be measured against the possibility that we are rendering fungible that which most profoundly distinguishes us and….enabling a commodity exchange in which important aspects of our identities will be sold to the highest bidder.

Recently I attended a science-and-democracy themed conference entitled “Deleterious Me: Whole Genome Sequencing, 23andMe, and the Crowd-Sourced Health Care Revolution” at which Anne Wojcicki was the featured speaker.  The poster for the conference, which depicted the double helix as a spiral staircase with little Lego-like people climbing upwards, ever upwards, toward a darkly gloaming heaven served as a very effective metaphor for the concerns I have about this entire industry. I worry that “DNA” is too often figured in the popular imagination as an inevitably uplifting stairway to heaven, an infallible path to higher truth. This leads to a credulous suspension of both ethics and caution.

In addition, the peculiar locution of Wojcicki’s title, “Deleterious Me,” posits the intimacy of “me” as inherently self-destructive.  It’s an odd but effective recasting of mortality as auto-immunity. One’s essence is framed as noxious, diseased, decaying.  Health and health care, by contrast, are positioned on the other side of the colon, located squarely in the geography of crowd-as-source.  If the individual is framed as dangerous, lonely, self-annihilating, its rescue lies in the comfort of crowds, safety in numbers, collective shelter from the HarmfulMe.

There is power in this conjoined set of idealized genetic references:  a poignant longing for embodied self-perfection, yet the fear and loathing of assured self-betrayal.  There’s something very nearly Shakespearean about the tension: tremulously human, mythically themed, with just a hint of hovering tragedy.  Indeed, the urgencies of our technological revolution beg for philosophizing or negotiation on some theatrical public stage—some Faustian oratorio where narrative and necromancy meet for a solemn duet.

In the 21st century, however, our greatest passion plays are exploited in the realm of private contract rather than public good or participatory democracy, rising to general consciousness only at the level of commercials aired at half-time.  So it is that privately-held companies like 23andMe can own, store and resell—to anyone–the most elemental biological markers of individual identity while marketing themselves as “direct-to-consumer” purveyors of “personal” self-knowledge.

This is more insidious than it might sound initially.   Using 23andMe as an example (and as the largest such company in the United States), it’s instructive to look at what the enterprise promises in its advertisements, versus what it actually provides.   On its website (as of May 21, 2012), the company invites you to order a DNA Spit Kit, the analysis of which will “start your journey” into a world of “endless possibilities.” The results will “help you explore” the past (“Discover your global origins, trace your ancestry, and find living relatives”); learn about your present (“Access over 200 online health and traits reports, including carrier status, drug response and disease risk”); and participate in the future (“Be part of the new genetic discoveries that can benefit us all”).

But the Terms of Service—that is, the contractual provisions to which customers actually agree—are so vague that it is unclear whether the company is really agreeing to provide any more grounded information than what one might find in a horoscope or a really slimy Ouija board.  What is clear, however, is that the company is not really making the bulk of its profit from analyzing spit samples, but rather from the sale and exploitation of data gathered from the collective spittoon.  Worse, there are serious breaches of privacy and broad potentialities for surveillance.

This is hardly a new ethical challenge. When Rebecca Skloot’s book, “The Immortal Life of Henrietta Lacks,” hit the best-seller list some years ago, there was a brief flash of heightened public awareness of the phenomenon of “bioprospecting.” Ms. Lacks was a poor black woman who suffered from a uniquely aggressive form of cervical cancer, to which she succumbed in 1951. Her cancer was rare enough that she became an object of medical study; some of her cervical cells were taken, cultured in a petri dish, and distributed widely for research purposes. It was the first so-called “immortal” human cell line and it has been the foundation for literally billions of dollars’ worth of medical and pharmaceutical discovery. Neither Lacks nor her family was informed of the removal of those cells, or the profit derived therefrom. When Skloot located Lacks’ children and grandchildren, she found a family still poor and without health care. Skloot’s exemplary response was to set up the Henrietta Lacks Foundation, a non-profit that provides emergency health care and medical scholarships to those in need. (Donations may be made by visiting www.henriettalacksfoundation.org.)  Ms. Lacks’ legacy points to the crux of the problem:  if a person’s biological material can be bought and sold and patented should not the profits therefrom be shared—at least to some degree–with the person in question, or perhaps pooled as a kind insurance for common health and welfare?

What of the privacy issues implicated in the buying and selling of intimate genetic data? 23andMe promises to “anonymize” genetic data, and to destroy saliva samples upon request.  It helps to know, however, that destroying the actual samples does not mean that the computerized map of information extracted from that sample will be destroyed.  Even where a customer attempts to eliminate an account altogether, “[o]ur contracted genotyping laboratory may…retain your Genetic Information as required by local law and we may retain backup copies for a limited period of time pursuant to our data protection policies.”  What constitutes a “limited period of time” is not defined.

In addition, where 23andMe enters into commercial arrangements, it discloses enough information to “enable partners to provide our Service to their customers and/or to provide you access to their products and services. We will not provide any individual-level Personal Information to these commercial partners without your explicit consent. 23andMe may include your Genetic and/or Self-Reported Information in Aggregated Genetic and Self-Reported Information disclosed to these commercial partners even if you have not given consent for your data to be used in 23andWe Research.”

Notice that there is a distinction made between “individual-level Personal Information” (defined as name, email, address, user ID and password, payment information, etc.) and aggregated “Genetic and/or Self-Reported Information.”  Genetic information means your genotype: the specific chemical map or sequence of your DNA.  Self-Reported information includes everything about yourself, “including your disease conditions, other health-related information, personal traits, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your 23andMe account.” Finally, “Aggregated” means information “combined with data from a number of other users sufficient to minimize the possibility of exposing individual-level information while still providing scientific evidence.”

But what happens if that “individual-level information” is exposed despite the company’s metrics for minimizing that possibility?  To say nothing of what happens if and when the ability to read this data improves to the point that we no longer need cumbersome details like names and social security numbers, but instead can, with ever-increasing accuracy, determine identity by “familial tracking” or by mapping genetic data onto medical records onto Googled purchasing histories onto GPS trails onto school records onto criminal data bases….

It is also interesting to contemplate what will happen to one’s data in case of bankruptcy: “In the event that 23andMe goes through a business transition such as a merger, acquisition by another company, or sale of all or a portion of its assets, your Personal Information will likely be among the assets transferred. In such a case, your information would remain subject to the promises made in any pre-existing Privacy Statement.”

If “any pre-existing Privacy Statement” leaves you scratching your head, you need to know that all of the Terms of Service, including the Privacy Statement, are in a kind of constant motion, subject to revision, amendment or replacement, “effective upon posting at www.23andMe.com.“  In other words, purchasers are bound by whatever terms are in the latest version of the contract that 23andMe dreams up.  Don’t like that?  Then you can choose to “terminate the Agreement at any time,”—even as 23andMe can just choose to hang onto your data for that “limited” but indeterminate period of time.

Under traditional concepts of contract law, such a radical subversion of any expectation interest whatsoever is arguably grounds for striking down an agreement as “illusory” (meaning that it styles itself as promising something palpable, but in fact contains so many loopholes that it holds the company to nothing at all) as well as contrary to public policy.  But in an ultra-libertarian moment haunted by rulings in such cases as Citizens United, it seems that judges and CEO’s alike are having trouble divining any difference between the narrow “choices” of a “customer” and the broad human interests of a citizen.

And so the question looms: is the language of “consumer choice” sufficient to address the ethical quandaries posed by the massive accumulation of population-wide genetic stores taxonomized as privately-owned, wealth-producing assets?  Does it pose, in crude terms, the same clash of values to be found in the apocryphal sale of Manhattan for baubles and beads—to wit, that indigenous Americans were operating under a so-called gift economy where the use of objects or land was understood as something to be passed back and forth over time (hence the term “Indian giver); whereas the English settlers were operating under a system that entitled them to erect fences, marking their claims as exclusively proprietary, in perpetuity.

Similarly, one must wonder if the easy expropriation of our DNA, particularly when couched as mere parlor “game” or spit “party,” is in any way reconciled with the vast value of what is being ceded:  the unplumbed pecuniary wealth as well the as-yet unexplored potential for surveillance and discrimination. An individual might well be led to think that his small contribution of spit is a worthless externality to his purchase of a self-revelatory service that is  “entertaining” and “fun” (as Anne Wojcicki has referred to it on more than one occasion) but…less visibly, 23andMe acquires a pot of gold.

Such a transaction also relegates that spat-out bit of golden code to the private sphere, transforms its—or your?–secrets into someone else’s property.  Clothed as contract, it is very hard to reclaim a host of genomic interests that we might otherwise think of as beyond the proprietary–like medical ethics or class access or scientific research protocols or new identity formations or protection against fraud.

If the real asset of data ownership is hidden by such contract terms, so too the “service” of “connecting” to one’s ancestors or predisposition to certain diseases is ephemeral at best. Despite the romantic lure of deliverance from the “deleterious me,” the fact remains that genetic science is still in its infancy and quite imprecise for the most part. For most medical prognostication, the probabilities assessed by any direct-to-consumer company are little more than guesstimates.  Indeed, 23andMe’s disclaimer of warranty and limitation of liability is eloquent testament to that:

“YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. 23ANDME EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) 23ANDME MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM 23ANDME OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. 23ANDME DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, 23ANDME SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.

…WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT 23ANDME SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 23ANDME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.

Ultimately, the revolution in genomic technology tests the delicate conceptual and jurisprudential relation between the historic sanctity or inalienability of human bodies and the body as product.  The discourses of biology and genomics, research and industry all tend to de-center the individual body in deference to idealized, hypothesized, demographic and/or normative interests.  It is an epistemic problem: and more often than not, the terms of debate are being framed in a way that discourages public engagement or debate and instead trends toward narrowing for the sake of efficiency of economic outcome.

I hope that 23andMe–and the host of data-mining companies like it—might consider how to channel the wealth yielded from patented discoveries into not-for-profit or low-cost treatment options for all—and certainly for their “direct consumers” at the very least. But if what we strive for is an informed and evidence-based advocacy rooted in social justice, it is not likely to come from competitive ownership of information in a market based on commercial profit alone.  If we wish to concede that there is knowledge-value in aggregating data from as broad a base as possible, that knowledge must be tempered by accountability to the basic constraints of civil society, such as protection against discrimination and invasion of privacy.  By the same token, hoarding and patenting genomic information so as to exclude others from using it does not enhance scientific discovery as much as the unhindered non-proprietary dispensing of solid data through the (increasingly belittled-as-inconvenient) process of peer-reviewed publication, of shared reconsideration, and of corrected republication if necessary.

Any notion of participatory democracy in this emerging arena must be premised on a diversity of voices—and that diversity will require broad access to the debate not merely to the technology.  We seem much too intently focused upon the benefits of aggregating fetishized bits of data from vast pools.  It is time we actually engaged the living, speaking subjects who make up the crowd, the sources, and the collectivity of our wisdom.

Reality Shows

Published on The Nation (http://www.thenation.com)

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Our Lizard-Brain Politics

Patricia J. Williams | October 10, 2012

Republican presidential nominee Mitt Romney’s uses his hands to make a point during the first presidential debate with President Barack Obama at the University of Denver, Wednesday, Oct. 3, 2012, in Denver. (AP Photo/David Goldman)

My cabdriver grew chatty when I asked him to take me crosstown to Columbia. “Do you work there?” he asked. “How much do students pay to attend?” He wanted to know because “in my country, all education is free. I didn’t have to pay to go to university.” I didn’t ask him where he came from, but it could have been any number of places: Norway, Barbados, Brazil, Cuba, Malta, Scotland, Sri Lanka, Saudi Arabia, Trinidad and Tobago, Hungary…

He was driving a cab to earn money while he pursues graduate work and was upset by a conversation he’d had with earlier passengers. It was the day after the first debate between President Obama and Mitt Romney, and they had praised him for his English and his “articulateness” about politics. But when he mentioned the fact that his higher education had been free, one of them sneered, “So how much was that worth, now that you’re driving a cab in America?”

He wondered aloud at the disdain, flummoxed by the assumption that the value of his education would be understood only in terms of the job he held. His words made me think about a significant shift in American cultural assumptions over the last few decades. Education has become much more of a commodity, with an ever tightening correlation between how much you pay and how knowledgeable you’re thought to be. This feeds a dangerous turn in our attitude toward universal education. “College isn’t for everybody” is an increasingly common political mantra. And if colleges and graduate schools can’t prove an immediate “value added” in boosting one’s salary, then all that learning isn’t “worth the investment.”

My cabbie was on a roll: “Education is not a luxury. It is a necessity for survival, like water and bread and roads and democracy. How can you be part of this world without education?” By now, we had arrived at Columbia’s wrought-iron gates. I paid him, and as I schlepped my bags to the sidewalk, he stuck his head out the window and left me with this zinger: “How can one truly be free if responding to things only with the amygdala?”

Ah yes, the amygdala. The little cluster of basal ganglia that regulates emotional response, sense memory, mood. It was quite an evocative reference, particularly after a presidential debate where a great deal of time had clearly been spent coaching Mitt Romney in the precise vocal intonations and hand gestures of Ronald Reagan. Indeed, millions of dollars’ worth of media punditry was expended not on evaluating the candidates’ empirical claims, but on haruspication of the public’s response to the tilt of heads, the glint in eyes, the twitch of whiskers. The virtual absence of prefrontal cortical activity in post-debate analyses should remind us that without critical thinking, we are not much more than that little nub of neurons that constitutes the lizard’s entire brain.

Critical thinking is the most valuable product of a good education. It allows us to negotiate the world using both the executive functions of our prefrontal lobes as well as the emotional intelligence of our limbic system. A psychologist friend says it’s akin to the power of metaphor: being able to understand comparisons at a deep level means we must be neither hyper-scientistically literal nor awash in one’s feelings, but able to make creative connections among different experiences, languages and worlds. “It’s a process of becoming, of being tried, tested and true,” he says.

But while some of us are worried about the primal pulsings of amygdalae, Republican Representative Paul Broun, a medical doctor who serves on the House Committee on Science, Space and Technology, is vigorously denouncing “evolution, embryology, big bang theory” as “lies straight from the pit of hell.” Similarly, Republican Representative Todd Akin, an engineer who serves on the same committee, is infamous for his comments questioning the possibility of pregnancy in cases of “legitimate rape.” It’s tempting to dismiss these statements as simply nonsensical or ignorant, but a truly thoughtful and critical response must uncover all the faulty structures of knowledge that must sustain such belief systems.

“Our political discourse reminds me of The Velveteen Rabbit,” says my friend the psychologist. “It’s about concepts that sometimes come alive by being true.” Come again? I asked him, baffled. And then he read me a passage from that enduring story, in which there is a tension in the nursery between two toy rabbits, one stiff and freshly store-bought, “all white plush with real glass eyes,” and the other, a thoughtful, well-worn existentialist.

“What is REAL?” the Velveteen Rabbit asks.

“You become,” ventures one of the older, wiser toys. “It takes a long time. That’s why it doesn’t happen often to people who break easily…or who have to be carefully kept. Generally by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby…. But once you are Real you can’t become unreal again. It lasts for always.”

Over here in the land of the Real, politics is not a game of charades, and the empiricism of the claims makes a difference in our lives. I suppose it all comes down to how you define “truth,” to say nothing of education. The bottom line in this election—indeed, what’s literally on the line—is a civil, secular system of governance in which the ability to profit from one’s ideas has always been fueled by a generosity of education. It’s this fundamental notion that has underwritten our civic commitment to public libraries, public schools and universities, public research facilities, public health institutions, affirmative action, the First Amendment, public broadcasting and, yes, even Big Bird.

Elections 2012….

The Emancipation Proclamation at 150: a miracle in need of an encore

Abraham Lincoln was a revered hero to my family, but Martin Luther King’s message is that the fight for justice is never over…

• • Patricia Williams
  • guardian.co.uk, Thursday 20 September 2012 16.34 EDT

Martin Luther King Jr: the power of the liberatory word. Photograph: Francis Miller/Time & Life Pictures/Getty Image

Like many African Americans, I grew up thinking of the Emancipation Proclamation as a totemic document. Abraham Lincoln – the ambiguity of his persona notwithstanding – was a kind of god to my family, an immortal whose words sparked a new epoch: a dream made manifest. The Emancipation Proclamation was magic – a tribute to power of naming to call forth something from nothing.

As an adult – and as a lawyer – I now see the Emancipation Proclamation as exemplary not only of the liberatory power of language, but of the complex relation between legal utterances and how they are put into effect by the institutions of government. The commands of executives and the sentences of judges depend on a supporting hierarchy of institutional actors, a faithful community of acolytes, a legion of believers in the justice of a particular system.

The violent word is always relatively easy to enact. For it is a complicated reality of our democracy that the general rituals of condemnation run with extreme efficiency: police, jurors, wardens, legislators coordinate who is disciplined or enfranchised, in or out of incarceration, dead or alive.

The liberatory word, on the other hand – that which commands new life, or orders political regeneration – that word always seems harder, more amorphous. Or is it, perhaps, that we don’t have the institutional hierarchy or community of agents who might be charged with regeneration and social healing?

If not magic then, I do think that the Emancipation Proclamation was a kind of miracle.

Today, we have urgent need of new proclamations from which new miracles might spring. For such a prodigiously endowed nation, the United States has the widest gap between rich and poor, among the most racially segregated educational systems in the developed world, and close to the highest rate of incarceration on the planet. We know this to be true. And yet, 46% of the American electorate support Mitt Romney for our next president – a man who recently disparaged the other “47%” who intend to support President Obama, as “victims, who believe that government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you name it”.

Martin Luther King Jr called the American project an endless moral commitment; that commitment to regeneration seems endangered at the moment. If I had the power of magic words, I would speak into being an Edict of Education, a Provision of Health and Welfare, an Encyclical of Enfranchisement and a Mandate for a Goodly Mixing of our promised Melting Pot.

• © 2012 Guardian News and Media Limited or its affiliated companies. All rights reserved.

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Warren’s Commission…

Published on The Nation (http://www.thenation.com)

The Real Risks of Fake Outrage

Patricia J. Williams | September 12, 2012

My friend G. lives on Martha’s Vineyard, an island with a complex social order. During the winter it is among the poorest districts in Massachusetts, but in the summer it vies for position as one of the richest. The year-round population is largely working-class; the summer folk are well-off, and their numbers include more than a few celebrities.

In the last week of August, G. took the ferry to the mainland to stock up on supplies at Walmart; on her return, she took a taxi home from the boat landing. Unlike in New York, the local cab companies are small businesses run by individuals who work other jobs to make ends meet. Four or five rusty vans wait at the ferry dock, and you share a van with anyone else going in your direction.

On this particular trip, G. shared her cab with an elderly couple dressed in full nautical regalia. The woman wore a red blazer and navy trousers; the gentleman sported an ivory-tipped cane, bow tie and a seersucker suit. A man carrying a shoulder-mounted camera with a long telephoto lens was filming the cab as G. boarded—and she assumed that one or the other was a famous novelist, a great diplomat or some long-retired Nobel laureate. As it turned out, however, it was the cab itself that was the main attraction: the cameraman was a Republican tracker for Scott Brown, Elizabeth Warren’s opponent in the Senate race. “He’s been following us for days,” the driver said wearily.

“Us” was Martha’s Vineyard Taxi, an enterprise owned by Morgan Reitzas, a struggling musician and part-time fisherman. Reitzas was hired by the Warren campaign to drive her to fundraisers and for sightseeing on the island. Reitzas was caring for his 4-year-old daughter, whom he’d brought along for the ride. When the tracker tried to film the inside of the van, where Reitzas’s daughter was seated, Reitzas ordered him to back away and put his hand over the lens. The resulting footage shows the confrontation, as well as the clattering spin as the camera hits the ground.

A great deal more than the camera went into spin mode. The video was posted online, where it quickly got more than 100,000 views on YouTube. Within hours, the executive director of the Massachusetts Republican Party had denounced Reitzas as a violent “campaign aide” to Warren and falsely asserted that Warren had passively witnessed the entire encounter. In response, her campaign issued a statement: “The person featured in the video was not a member of the Elizabeth Warren for Massachusetts staff. He is a cab driver. Elizabeth did not see what happened.”

The blogosphere greeted this with snide innuendo. “Consider the subtext behind ‘He is a cab driver,’” wrote a blogger at American Thinker. “The impression given is that the cab driver, as would be expected of a little person who was not a Harvard professor, was unknown to Ms. Warren.” The Brown campaign—which in April got police to remove a Democratic tracker from an event—sent an unctuous letter to the local board of selectmen urging them not to revoke Reitzas’s license and expressing concern about “how he would support his family…. He seems like a regular guy who’s just trying to get by like everyone else.”

Reitzas’s Facebook page was scoured for signs of villainous connections and a photo of him surfaced, with what hostile commentators described as “his arms around” Warren and her husband, while standing in front of an old lighthouse. It was taken during a sightseeing stop (“I’ve been photographed with many celebrities over the years, driving the cab,” Reitzas moaned) but became proof that he was lying, lying, lying and that Warren was more than just a good customer. Ultimately, his time in the spotlight exposed him to so much harassment that Reitzas took down his Facebook page, hired two lawyers and held a press conference at which he issued an apology for his aggression, denied (again) any political connection to Warren, revealed himself as an unregistered voter with no affiliation and explained (again) that he was trying to protect his daughter.

That this passes as a “political” story at all is troubling. Yet there are a thousand similar nonstories across the country during this election season. Their manufacture and magnification represent a crisis of public discourse, and we are distracted by them at our peril.

Here’s a story that matters: The balance of power in the Senate is at stake, and Warren’s campaign has been battered by huge investments in negative advertising funded by ALEC, the Koch brothers and big banks. After all, Warren designed the Consumer Financial Protection Bureau; she predicted the financial collapse well before most and fought against the 2005 Bush-era law that drastically constrained the ability of ordinary people to declare bankruptcy in the face of that collapse; she has devoted her career to reforming fraudulent lending practices, women’s wage inequalities and unfair credit schemes. It is no slight to Scott Brown—a mild-mannered moderate Republican whose political identity is configured around the amiability of his pickup truck—to say that Elizabeth Warren has more to offer in a time of economic tremulousness.

Socrates said rhetoric is the art of persuasion. He also said that persuasion in the absence of fact is mere flattery of one’s audience; and flattery unsustained by truth is neither art nor rhetoric but purest demagogy. Like the nonstory of Morgan Reitzas, too much of our political discourse is degraded by hyperbolized trivia whose fantastical properties deliver us only and exactly what we want to hear. Apparently all we want to hear about is sex, car crashes and the bleed that leads. Lacking that, the random folly of a cab driver having a really bad day would seem to suffice. It surely is time we grew up.

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Source URL: http://www.thenation.com/article/169887/real-risks-fake-outrage

Imaginary Citizens United….

Published on The Nation (http://www.thenation.com)

Eggs Are People Too!

| March 21, 2012

It’s an interesting time to ponder the meaning of life and death in the eyes of the law. On one hand, Christian conservatives increasingly seek to sacralize embryos from the moment of conception. On the other, the Supreme Court just heard a case that, among other things, considers the extent to which the corporeal death of a parent is really the “end of the line” with regard to “survivor” benefits for children conceived by artificial insemination from the frozen sperm of a deceased father. On one hand, Citizens United granted First Amendment rights to corporations that are identical to—and some would say exceed—those of natural persons; on the other, the Second Circuit recently ruled that individuals, but not corporations, can be sued for human rights abuses.

It’s interesting to consider the larger social anxieties at play when it comes to the “right to life” debates. Rick Santorum recently made a great show for personhood amendments, declaring, “Personhood is defined as an entity that is genetically human and alive.” But unfertilized eggs are “genetically human.” And sperm swim, so technically they’re “alive.” (Or, as an irreverent friend suggested: fellatio must therefore be a form of cannibalism.) If egg and sperm are sacralized even before they meet, it goes a long way to explaining why the evils of contraception are back on the table.

But if we push this figuration only a little, “conceptually,” life begins with DNA. Conceivably, every cell in our body is brimming with generative potential, particularly given new technologies of assisted reproduction. Santorum’s stance thus becomes a peculiar cross between the theological imperative to be fruitful and multiply and the fetishism of microbiological cellular promise.

The oddity of this discourse is best revealed by a recent rash of satiric bills pressed by clever female legislators. Virginia State Senator Janet Howell wrote an amendment to the requirement that women be subjected to vaginal probe before being able to have an abortion: “Prior to prescribing medication for erectile dysfunction, a physician shall perform a digital rectal examination and a cardiac stress test. Informed consent for these procedures shall be given at least 24 hours before the procedures are performed.” (Her amendment was defeated, but by a satisfyingly narrow margin of 21 to 19.) In Oklahoma, Constance Johnson introduced the “anti-spillage” amendment, which holds that “any action in which a man ejaculates or otherwise deposits semen anywhere but in a woman’s vagina shall be interpreted and construed as an action against an unborn child.”

Frankly, I respect the Oklahoma Personhood Amendment’s proposal that life is sacred, “regardless of place of residence, race, gender, age, disability, health, level of function, condition of dependency, or method of reproduction.” But this expansive notion never seems to translate into policies that would provide actual food, shelter, healthcare or material succor for those precious lives, either pre- or post-birth. (In New Hanover, North Carolina, the County Board of Commissioners recently turned down a family healthcare grant, with one commissioner remarking that “if these young women were responsible people and didn’t have the sex to begin with, we wouldn’t be in this situation.”) Those claiming to give “voice to the voiceless” entities within the womb pit the interests of conceptual life against the bodies of living women. In any event, I’m not sure why regard for incipient humanity should make us feel bound to breed like bunnies within marriage or be constrained from copulating outside of it—particularly given that 99 percent of American women use some form of birth control.

At the same time, there are important principles being tested in these debates: the degree to which we feel sex to be a natural bodily function, whether pregnancy is always wholly a woman’s autonomous choice. Framed this way, our discussions of life and death seem oddly incoherent and disconnected. We love the very thought of life, but we disparage “anchor babies,” “welfare children” and teens of color like Trayvon Martin. We spend billions on fertility treatments for the wealthy but speak of pregnancy among the poor in terms of economic surplus, burden, free rider.

These discussions also vivify proxies of personhood in much the same way that corporations are enlivened: our updated Puritanism about reproduction is peppered with overly deterministic images of what DNA “says” and with marketed avatars of human perfectibility. Cytoplasm has been personified and given life and active voice; you’ve got to probe a woman’s body to see if there’s a separate life in there in need of rescue. You have to show her pictures of her blastodermic vesicles in case she doesn’t know.

Some anti-contraception arguments seem to cast birth control as actively harming real, microscopic little people, wee homunculi waiting to materialize, as though menstruation were a sinful waste. Eggs are people too! The maternal sanctity of the inspired neo-egg is posited in constant battle with the hot, sluttish moral disregard of any woman who has sex that is not at the behest of a husband’s procreative mission. Thus it is that Sandra Fluke becomes pluralized into all the women in her testimony; and all those women are reduced to a throbbing red light of a single really dirty body part.

But this is not mere political hyperbole. If we are not yet a theocracy, then it seems appropriate to observe that Santorum’s comprehensive invocation of “life” as a theological concept is, in the law, no more than a literary device—one that is employed when we construct legal fictions of all sorts. It is no different from granting “legal subjectivity” to a municipality or bestowing “personhood” on a corporation. This is not about what God endows. Rather, the law’s concern is what we as a constituted polity choose to animate and what we don’t. How “we the people” come alive in language, not merely in the womb, is the challenge of social justice: our love of life must not be locked away in the perpetually future contingent but fully engaged in the embodied present tense.

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Source URL: http://www.thenation.com/article/166939/eggs-are-people-too

THE GENOMIC IMAGINARY

GENEWATCH Magazine,
Volume 25 Issue 1
Genetics in 20 Years
Jan-Feb 2012

http://www.councilforresponsiblegenetics.org/GeneWatch/GeneWatchPage.aspx?pageId=409

By Patricia Williams

I teach a Justice and Bioethics class that, over the years, has attracted not only law students, but students from a grand variety of disciplines including medicine, engineering, biology, anthropology and journalism. At the beginning of every semester I do a silly little exercise as a way of putting on the table all the romantic images they might be harboring: I ask them to draw a cartoon depicting the DNA in their own bodies. Very few draw molecular topology. Indeed, no matter how sophisticated their backgrounds in biochemistry or genetics, whatever they draw is almost always relentlessly pre-modern: little men scurrying about with messenger bags; “a womb inside each cell”; mini-drones circulating just beneath the skin; “a golden fully-formed-but-microscopic Me, floating in the thorax”; a Harvard beanie; Da Vinci’s Vitruvian Man; a “biological Torah in the Ark of the body.”

The symbolism embedded in these framing metaphors and tropes-as delivered up by even the most secularly scientific minds-is intriguing. These are images of faith and karma and alchemy, of holy text and of the resurrection of the body-as well as of entitlement and preordination. While I ask my students to do this exercise as a way of externalizing what might otherwise remain fairly unconscious associations, these filters are persistent. They remain on the table, they do not go away.

When I contemplate the next few decades of genetic technology and research, I think of those students and what roads their chosen taxonomies will chart through the genetic forest, the mind-maps their nominations will impose upon our collective understanding. In twenty years, I have no doubt that the actual science of genomics will have continued to expand explosively. I have no doubt that we will have medicines that at present we would think of as miracles. We will have access to our farthest ancestral links. Governments, schools, employers and corporations will have access to our farthest ancestral links as well. Recombinant and synthetic biology will revolutionize our conception of reproduction and the life cycle itself.

That said, the little gallery of drawings I keep convinces me that the most important questions we face now and will then are age-old: how will we distribute the benefits of new knowledge? Will this sudden source of power and wealth be translated into public health benefits, or hoarded by elites? Will biologized notions of “endowment” displace or supersede notions of political equality?

The ability to read DNA quickly and cheaply, moreover, will put big holes in much of what we presently consider private as a matter of right. Similarly, the surveillance possibilities will give new meaning to the expression “You can run, but you can’t hide.” Finally, the delicate conceptual and jurisprudential relation between the historic sanctity or inalienability of human bodies and the body-as-product will be vexed; for if medical research is ostensibly the driver of many recent genomic discoveries, the designated funding behind that research surely exists in ambiguous tension with corporatized pharmaceutical interests.

What I hope we will have refined by then is our sense of urgency about the social justice issues presented by genomics. I hope that we will have embraced this science for what it teaches us about our common humanity and our interdependence with all other life forms. I hope that we will be guided by respect for the dignity of organisms and caution about unintended consequence, rather than by commercial profit, magical thinking, predestination, hubristic risk disguised as “progress,” mutilation masquerading as “improvement,” or eugenics doing business as…usual.

This is what I hope. But that is also what I fear.

Patricia J. Williams, JD, is a Professor of Law at Columbia University and a member of CRG’s Board of Directors. She writes a monthly column for The Nation called “Diary of a Mad Law Professor.”

Culture of Death: Who Gets to Be a Person in Mississippi?

Patricia J. Williams 

The Nation Online,  blogpost of November 3, 2011 – 12:38pm ET, http://www.thenation.com/blog/164299/culture-death-who-gets-be-person-mississippi

On November 8, Mississippi is set to vote on Measure 26, a ballot initiative that would redefine the state’s Bill of Rights to extend the protections of personhood to include “every human being from the moment of fertilization, cloning or the functional equivalent thereof.” It is striking that the measure, which is largely motivated by religious concerns about the sanctity of human existence, crops up in a state that has one of the lowest indices for overall quality of life—whenever it might begin—in the entire country: the infant mortality rate over the last decade is about 10 per 1,000 live births, with black babies dying at twice the rate of white babies. Mississippi leads the country in obesity and ranks forty-sixth in the number of state residents who have health insurance. It suffers from high death rates from cancer and heart disease. Twenty-three percent of the population lives below the poverty level, giving Mississippi the unenviable distinction of ranking dead last in the nation.

With the odds of survival so relatively skewed, it is no wonder that there might be some anxiety over preserving the very idea of life. Then, too, the legal category of “personhood” seems particularly capacious since Citizens United; if such a label protects corporations, banks and homeowners’ associations—and don’t they seem to be thriving!—what blessings might it extend to a zygote, that abstracted conception of future stock, human capital, mortal enterprise?

As I write, the seven billionth person is said to be entering this earthly dimension. That statistic has been reported with Malthusian apprehension, as well it might. The resources of the world are not infinitely replenishable; much of the planet’s ecology risks systemic collapse as a result of habitat degradation, global warming, invasive species and thoughtless exploitation; and the superpowers continue to go to war with one another over dismally non-sustainable energy sources like oil, gas and coal. Add in the uncertain-to-teetering economies just about everywhere, and it isn’t hard to fathom the dangerous contradictions of those who feel both deep resentment about the mad global competition to make ends meet, and simultaneously, a frantic “need” to propagate more of “our kind” because “we” are too few—regardless of actual numbers or common well-being. It’s as though we are walking a tightrope stretched between fetishism of the fetus and an abyss of human disposability.

When, during a recent Republican debate, the audience cheered the fact that Rick Perry had overseen more executions than any governor in modern history, there was at least a momentary shudder among the punditocracy. What did it mean that a numbered batch of bodies was cause for such applause? Perhaps this is the new metric for presidential success: executions and summary assassinations, as though the scales of justice were measured in people-poundage, with some being heavier or lighter, depending on strangely monetized equivalences. There have been too many events of late that have been framed by our political and media spokespeople as measured by some curious human exchange rate. Does the targeted killing of unindicted US citizens like Anwar Al-Awlaki and his 16-year old son “equal” resolution for the violence he may have preached? Does the grisly display of Muammar Qaddafi’s body flung in a refrigerated meat locker “account” for the lost lives in Lockerbie? And whether you deem the late Troy Davis guilty or innocent, his execution was a stark example of how much habeas corpus has been whittled away in recent years, his death an indirect product of curtailed access to judicial appeal and substantive justice—limitations that are justified with reference to “time spent,” and “tax dollars.”

Indeed, Davis’s legal representation was severely compromised by crippling cuts in state and federal funding for the Georgia Resource Center, which represented him and other indigent prisoners in post-conviction hearings. His appeal was also hobbled by the Antiterrorism and Effective Death Penalty Act of 1996, which prohibits prisoners from raising, post-conviction, evidence that they might have presented at trial, no matter how probative or substantive.

Embryos notwithstanding, we seem less and less invested in protections for the sanctity of life in the here and now. Can’t let things go on forever, after all. Costs a bundle.

Recently, the state of Texas decided to do away with the last meal for death row inmates, that terminal rite of agency, of choice, of taking leave of the sensory. From now on, the condemned will have to eat whatever hash is being dished up in the commissary. Of course, the tradition of granting requests in one’s last meal is premised on a superstition of sorts, a fiction of making peace, of showing mercy, of stilling spirit. In Louisiana’s Angola Prison, for example, the warden shares that meal with the doomed, a kind of final communion. In other places and times, a last drink or a coin to the executioner might serve as the bridge between life and impending death, a marking of the day as Unlike Any Other. The killing of a human being, whether considered legally justified or not, is momentous, mysterious, a repercussive tragedy no matter how reprehensible the record of that life. There will always be those who wreak havoc in society, and who then sneer from the grave or the brink of it; there is, no doubt, a very human urge to give them a little shove into the great beyond. But the entire purpose of just governance is to model respect and to provide restraint in the face of such urges.

When, instead, our government is viewed solely as something to protect “us” against “them” to the exclusion of it being a constitutive force as well, the social world turns into a zero-sum game, in which others’ success at survival means less for you. That mindset engenders a mean little flare of relief every time there’s news of one less ne’er-do-well post-born mouth to feed. That not-so-subtle channeling of emotion toward the facile rendering of death distracts us from the policy choices that might make life more tolerable—preventive healthcare, basic housing, public education—even in our unnatural numbers. It allows us to ignore the inconsistency between gracing the mute quiescence of a fertilized egg with personhood while failing to endow the more lively political quests of the American Dream.

The Legacy of Anita Hill, Then and Now

Published on The Nation (http://www.thenation.com)

 

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Patricia J. Williams | October 5, 2011

Sad fact: there are few women of my generation who don’t have what is known as our “Anita story.” Mine occurred in 1980. I was five years out of law school and had decided to shift my career from practice to teaching. I was walking down a long hallway at the Association of American Law Schools meat market for new hires. There were two men behind me who were joking about the excellent shape of my legs and the unusually well-defined musculature of my lower quadrants. (Did I mention that it was a very, very long hallway?) At the end of that eternal passage was my appointed interview room. I escaped into it, only to be followed by the two. They, as it turned out, were doing the hiring.

Life was like that sometimes, I thought. And so I went through all the proper motions of expressing how much my fine ideas could contribute to their faculty, pretending that nothing had happened.

I didn’t stop pretending nothing had happened until 1991, when Anita Hill testified to the Senate Judiciary Committee about the unwanted office approaches of her boss, then-chair of the Equal Employment Opportunity Commission Clarence Thomas. I remember how still and dignified she was at the center of that howling hurricane of mockery, meanness and machismo. It was like some psychedelic cross between The Crucible and The Wizard of Oz, with its swirling fantasies of witchcraft, conspiracy theories and mad satyric orgies. I remember everyone from Orrin Hatch to Rush Limbaugh dismissing anything that “might have happened” as “bedroom politics,” even though Hill’s allegations centered on misbehavior in the boardroom, not the bedroom, and even though those allegations implicated precisely Thomas’s public ethics as the chief enforcement officer of sexual harassment laws. “He said, she said” entered the national vocabulary. So did “They just don’t get it.”

Anita Hill graduated from Yale Law School in 1980. The percentage of women in law schools was 38 percent—in contrast to the approximately
50 percent it is today. Back in those times there were so few women among the legal professoriate that many law schools didn’t even have women’s bathrooms. And as for women of color—there were only five or six of us teaching in the entire United States.

If the percentages of women in all professions improved over the next decade or so, the ability to speak up and speak out was often constrained by fear of losing status, ruining one’s career. It was the shockingly abysmal treatment of Anita Hill by the United States Senate that changed all that. Women were mobilized in a way unseen since the time of the suffragettes. EMILY’s List took off, as well as hundreds of networks for women’s political empowerment. Twenty years later, if some men’s behavior has not changed as much as one might have hoped, the collective women’s response has undergone seismic change. It’s not “nothing” anymore.

Anita Hill remains an icon to whom subsequent generations are rightfully indebted. At the same time, she has not remained trapped by her own symbolism or frozen in time. It is sometimes forgotten that she is a respected scholar of contract jurisprudence, commercial law and education policy. She is a prolific author, publishing numerous law review articles, essays, editorials and books. Today, Hill is a professor of social policy, law and women’s studies at Brandeis University. Much of her most recent research has been on the housing market, and her most recent book, published this month, is Reimagining Equality: Stories of Gender, Race, and Finding Home.

It is ironic that the full substance of Hill’s remarkable intellectual presence remains so overshadowed by those fleeting, if powerful, moments of her Senate testimony. If the larger accomplishments of her life aren’t quite as iconic as that confrontation with Clarence Thomas, they nonetheless merit attention by feminists and scholars alike. To begin with, Hill is a remarkably elegant and accessible writer. For those who wish to apprehend the gravitas of her intelligence and dignity, Reimagining Equality would be a good place to start.

Some will remember that Hill was introduced at the 1991 hearings in the company of a large family—she is the youngest of thirteen children—but very little attention was paid to the significance of that protective wall of humanity. It helps, through this book, to have met Mollie Elliot, Hill’s determined maternal great-grandmother, born into slavery in 1847. It is instructive to read about how her grandfather fled Arkansas in 1914, narrowly escaping an old-fashioned, low-tech lynching. It is inspiring to know that her mother, Erma Hill, would have been 100 years old on October 16, and that “each day I honor her by working to live up to her dream that I will find a more just America than the one she lived in and that, as she did, I will leave it better than I found it.”

Despite this, Reimagining Equality is not principally a memoir. The arc of “home” ranges from her ancestors’ efforts at making their Arkansas farm a secure geographic space to her own settling in Massachusetts as the homesteading of an identity even more than of literal place alone. This trajectory is accompanied by a brilliantly lucid detailing of the apportionment of American real estate—and along with it, the American dream—along the lines of race, gender and class. While the most memorable heroines of this book are women who struggle to make a safe and nurturing domestic space of their own, the underlying narrative antagonism is rooted in a universal story that affects us all—of corrupt, downwardly spiraling land and banking practices that have disproportionately targeted women, minorities and the poor. From the 1800s to today, Hill meticulously tracks notions of communities split by the government’s investment in racialized redlining of neighborhoods; of encompassing traditions of maternity riven by neonatalist notions about which mothers should be having more or fewer babies; and of “ghetto lending practices” that have poisonously metastasized into today’s bundled subprime mortgage crisis.

Reimagining Equality is an important achievement. Hill manages to humanize and reinvigorate the American promise of security in one’s pride of home—even against the backdrop of harder-edged, more militaristically inflected calls to “homeland security.” The kinder, gentler complications that Hill brings to bear in teasing out this contrast are an eloquent continuation of her giving voice to the invisible, the voiceless, the undocumented, the hopeless and, yes, the all too literally homeless.

In 1991, Anita Hill made history by the simple yet terrifically courageous act of standing up to an arrogantly gender-biased political culture, as well as that part of “the public [who] rejected the testimony of my life experience.” Twenty years later, let us make sure that her written legacy is no less remembered than Thomas’s radically right-leaning Supreme Court opinions. Let us honor her by fully recognizing the liveliness of her ongoing cultural engagement: the excavation of a resonant equality that shimmers at the heart of the American dream, a light that demands its place as a beacon to all Americans, and beyond.

 

Sex, Lies and The DSK Case

Published on The Nation (http://www.thenation.com)

 

I’ve been to a lot of dinner parties lately where the question du jour is whether Nafissatou Diallo should have been “given her day in court” so she could “fully air” her charges against Dominique Strauss-Kahn; and, while we’re on the topic, whether Manhattan District Attorney Cyrus Vance Jr. compromised his political career with the motion to dismiss. It’s slow around Labor Day, so I understand the hunger to have that case go on forever; it would have been a mega-spectacle, and I, too, would have loved seeing the blood vessels in Nancy Grace’s temples balloon and throb.

Carnival possibilities notwithstanding, however, it’s important to remember that criminal cases fall apart all the time. Through one prism, this was just one of them—such is life. At the same time, as Katha Pollitt noted recently in a post on The Nation’s website, the onus on a victim asserting rape is very, very great. It seems there’s always “something” in her past that can and will be used against her. In addition, the way l’Affaire DSK played with hot-button political figurations—money, race, ethnicity, immigration—made its end especially excruciating. Like a piñata that has spewed its contents after much bashing, a ghostly ruin of pluralized images were left to us: poor hotel workers, haughty Frenchmen, lying black women, callous prosecutors, Muslim mothers, high-priced lawyers, insidious unnamed sources, guys who smile like cats that swallowed the canary and traumatized rape victims everywhere.

It’s important to understand why this case fell apart, to distinguish some of its particular features from the more general challenges in prosecuting rape. First, rape cases are notoriously difficult to prove, because the crime is so often one-on-one, or “he said/she said.” In the past, the mere lack of other witnesses was considered legal reason for letting rape go unprosecuted. This is no longer true—and despite confusing media assertions to the contrary, Diallo’s case was not dismissed on those grounds.

Second, despite our best aphorisms that “even” prostitutes and pathological liars can be raped, it remains true that the credibility of rape victims is too frequently doubted for specious reasons having to do with their sexual history. Media accounts suggested that Diallo’s suit was dismissed because of her “questionable past,” but that wasn’t what weakened the case most. It was that she lied to prosecutors again and again and again. The fact that she falsely claimed on her asylum application to have been gang-raped in Guinea probably wasn’t enough to doom the case—she might still have presented herself quite sympathetically as a desperate refugee fleeing a war zone—but there were other things undermining her credibility. Diallo repeatedly confused or misrepresented crucial sequences of events to the grand jury, to police and to prosecutors. Not only did the police investigation turn up a jumble of discrepancies in her story; her own attorney permitted her, even advised her, to talk and talk and talk to all manner of tabloid media hounds. That rather unusual—I would say reckless—decision captured yet more discrepancies for the record and diminished her reliability further.

Third, where an accuser’s story becomes subject to documentable weaknesses on this great a scale, it’s the prosecutor’s duty to move for dismissal. What seems to be overlooked in calls to give Diallo “her day in court” is that our criminal justice system pursues cases in the interest of public order, not on behalf of an individual complainant. That’s why criminal cases are titled “The People” of a jurisdiction versus an alleged criminal actor. (A civil—or more “private interest”—claim, on the other hand, would allow “Ms. Diallo as an individual” to bring a case against “Mr. Strauss-Kahn as an individual,” and, given the lighter burden of proof in civil cases, would offer a better chance of winning such a suit.) Vance does not represent either “the police,” as so many seem to think, or Diallo, but rather the broad justice interests of the entire state; it’s the reason he was required to reveal the flaws in her story when the investigation uncovered them. If it’s exculpatory, the defendant has a right to know.

The responsibility of prosecutors to dismiss a weakened case is designed to be a filter of sorts. Not only would it be a waste of public resources to take questionable cases to trial; it would fundamentally challenge the very notions of presumed innocence and reasonable doubt. The prosecutor cannot—as a matter of absolute professional ethics—proceed to trial with a claim where the prime witness repeatedly changes or lies about relevant, substantive elements of the story. This is not a matter of discretion: prosecutors are forbidden from presenting a case to a jury when they do not believe they can win, as judged by the standard of “beyond a reasonable doubt.”

That said, the perceptions of prosecutors in determining who is a credible accuser are inflected by the same biases and assumptions that afflict the culture at large. When it comes to rape cases, data have shown that men are more often believed than women, and whites more than blacks, and fine suits more than sweatpants. Bad prosecutors make bad decisions about witness credibility all the time—and therein lie the grounds for our political advocacy, the reason to keep pressing for more educated participants at every level of the system, from police to prosecutors to judges.

We have plenty of reasons to be worried about the social divides that play out daily in our judicial system. But if there is bias at work in Vance’s handling of his office, this case isn’t the best proof. The wrenching demographics of misogynistic insult, assault and murder cannot alone determine the result of a given “case or controversy” (as our Constitution puts it). Putting them ahead of actual proof to seek vengeance against a “smugly smiling” icon of the banking industry is not so very different from carelessly assuming that a “scowling” black youth “probably” did it because he was wearing a hoodie. We cannot—should not—all be Nancy Grace.

The Nation Since 1865

Copyright © 2011 The Nation

Reality Wars

Slouching Towards Faux

Patricia J. Williams | July 13, 2011

Shortly after Dominique Strauss-Kahn was indicted on charges of attempted rape, his friend Bernard-Henri Lévy wrote a defense of him that, among other wrongheaded assertions, denounced the American justice system as one where “anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.” What Lévy actually described is a presumption of guilt, not the American presumption of innocence. In the United States, the prosecutor—whose responsibility extends not merely to the accuser but to the general interests of justice—has the burden of proof. The accused doesn’t have to prove or disprove anything; indeed, the accused doesn’t have to say a word, as per our Fifth Amendment.

Lévy’s offhand remark came closer to describing the global media than our courts. Journalistic values like accuracy, accountability and respect for human dignity have fallen by the wayside as entertainment and titillation have prevailed. The inescapable rush to judgment that pours forth in hi-def in seemingly every public space—from elevators to taxicabs to airports to bank lobbies—is a kind of civic poison.

It’s because of the media that we find our democratic processes foundering in increasingly debased public discussion: Strauss-Kahn’s accuser is driven to suing the New York Post for its unsubstantiated claims that she is a prostitute. Pundits mock the very principled prosecutor, Cyrus Vance Jr., as a sucker for having dutifully and appropriately revealed potentially exculpatory information. Radio jocks spend hours dumping on those who believe the accuser’s history of lying has anything to do with Strauss-Kahn’s “obvious” guilt. When HLN opinionator Nancy Grace’s howling impersonation of blind Fury wins her more respect than the deliberation of an actual jury, as in the Casey Anthony murder trial, we worry for the safety of judges, defendants, accusers and jurors. We forget that the case against Anthony was circumstantial; as much as she lied to law enforcement—a crime for which she has been convicted—her child’s body was so decomposed there was no way to prove either how she died or who did it.

We are swimming in a gloop of scuttlebutt and tittle-tattle, driven by “unnamed sources” who always represent themselves as “close to the investigation” yet who speak only “on condition of anonymity.” Those deceptively anodyne descriptors have moved us down an ethical spectrum from transparent reporting to stories that are “underwritten,” bribed, extorted or outright lies.

Consider, for example, the insidious model of Rupert Murdoch’s media empire. Fox News Channel is a subsidiary of the Fox Entertainment Group, which in turn is a subsidiary of Murdoch’s conglomerate News Corporation. It’s a perfect circle, a consciously structured looping between news and entertainment, a business model premised on positing the amorality of “anything goes” as the civic equivalent of “freedom of the press.”

In Britain, Murdoch’s devouring influence is finally being challenged with revelations that his employees compromised a murder investigation by hacking into the voicemail of the victim and erasing her last messages; tapped the phones of politicians with whom Murdoch took issue; and paid police officers and government officials “in the six figures” for information about ongoing investigations. It is perhaps only in America that any enterprise of Murdoch’s labeled “fair and balanced” is still received as anything but laughable. We know, too, that paying for information has become broad practice among American tabloids like the Post; but we seem inured to the concern that tabloid sensibility is not just unreliable but corrupting.

The Anglo-American justice system constructs criminal cases as singular—as particular to named individuals and specifically delineated indictments. Social narratives, norms and values can never be entirely absent, but the system attempts to regulate their influence through mechanisms like the rules of evidence (barring rumor and unsubstantiated opinion) and standards of proof (like “reasonable person” and “reasonable doubt”). To keep from destroying reputations unnecessarily, we adhere to a presumption of innocence. Police are supposed to keep certain aspects of investigations closed until there is at least “probable cause.” Similarly, both sides screen and filter evidence for probity. In some cases, judges have the discretion to sequester juries from outside or inflammatory input. And we trust lawyers, prosecutors and judges to keep confidences as a matter of professional ethics.

But none of these structural buffers can operate as they should if a Murdoch-like empire runs the world, carelessly spitting out the home addresses of those it wishes to skewer, hacking into the phones of unlucky witnesses, pursuing stories into sealed records, private homes and bathroom stalls. Our democracy depends on a free press to discuss the issues of the day without interference from government. What that noble ideal does not account for is the existence of media monopolies able to exercise national and international control over civic spaces—even to the degree that their power vies with that of governments. Their careless, nonempirical, even fictionalized narratives invade privacy, ruin careers, mythologize racial stereotypes, exploit class divisions, exacerbate ideological discord, unleash mobs, wreak vengeance, assemble armies and annihilate the common good.

Today’s media chatter is beholden not to truth but rather to profit, fear and fantasy. What becomes of the duty to listen that is at the heart of free expression? What becomes of the shared mulling of ideas that allows us to think of one another as equals who exist in society with one another? What becomes of the measured thought exchange that is the essence of due process?

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Source URL: http://www.thenation.com/article/162003/slouching-towards-faux