A plea to my friends: be political.

I’m done with the posts on my Facebook feed apologizing for being political. I tire of the lamentations about how many political posts there are.

Over the past few weeks – almost three! – we’ve heard so much about the importance of checks and balances. Yes! This is completely true! And let’s not forget to pepper this blog post with some important Founding Father quotes, who bequeathed this concept (enshrined in our form of government) to us. Let’s begin with James Madison in Federalist No. 51:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

But I want to note the important point in the following paragraph:

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

That word: auxiliary. “Auxiliary”  means “additional; supplementary; reserve.” It does not mean “primary, foundational, first, chief, principal.”

Our inheritance is therefore not simply that of checks and balances. it is the intellectual tradition of being an active representative in good government.

Institutions are merely conglomerates of people. Checks and balances are not self-executing. Checks and balances are designed to work alongside a galvanized and informed citizenry. There’s no basis for believing that checks and balances will magic themselves into responsiveness. The only way checks and balances work as an auxiliary is if the primary bulwark against tyranny does its job first, and that bulwark is us: the American people.

Likewise, it requires people to act. Acting can be anything: reading, writing, listening, speaking up, going to a rally, running for office, whatever. I’m writing this as a plea, not an argument. Being apolitical is to remain indifferent to the health and status democracy. To stand aloof to the problems facing government – and there will always be problems – is to either say that you don’t care, or that it doesn’t concern you. If you read this and think “That’s not me; I care,” then the next time a political thought enters your mind, fear of alienating your Facebook feed should not be part of your decision tree.

Our country’s philosophical tenets were fundamentally active. They require movement and participation. They require education, and not just schooling, but the commitment of a literate population to understand and think about the issues surrounding them.

I’m sure I’m a bother on my Facebook page, but I frankly don’t care at this juncture. My goal is not to go out there and change everyone’s mind. My goal is to remain engaged and to surround myself with other engaged people. I want people who associate with me to take this role of citizen seriously and understand the gravity of maintaining the integrity of our republican form of government.

I gave up a long time ago on this kind of language because it sounded to romantic, lofty and idealistic. I’ve since begun embracing it again. Too often I hear people speak in platitudes about American political identity. I really want to emphasize that we should strive to breath meaning back into this foundational concepts. Freedom and liberty are not self-defining any more than our checks and balances are self-executing. It’s going to require this generation of Americans to add contours to those principles. We’ll do this by maintaining our own library of thoughts and democratic experiments, but that’s only possible if can get past this notion that to be political is to be uncouth. Being political is a feature, not a bug, of living in a democracy.

Can the refugee ban help us mitigate the access to justice problem?


Obviously the above picture is not mine. Kamala Khan is Ms. Marvel and belongs to, you guessed it, Marvel. I thought it looked cool and was appropriately in tone and representation.

Spend enough time in law school or at the bar (the boring bar) and you’ll hear about the “access to justice” problem. The access to justice problem, at its most simplest, is that te legal profession cannot sufficiently meet the needs of those who require legal services, and that this disproportionately impacts the poor and indigent. More and more, it is also affecting the working class or lower middle class, who both cannot afford even more middling legal services but also make too much money to qualify for legal aid services.

The salient point is that supply cannot meet demand. There are a lot of reasons for this and we can dive down that rabbit hole another day but, suffice to say, it’s a problem.

Solving problems, in my experience, and I would say in most folks’ experiences, happens incrementally. You make something 3/5/10% better and the eventual outcome is a larger accrued benefit over time.

Likewise, working for a metrics-centric company that values scalable, “machine learning” solutions has changed the way I approach a problem. I’m a lot less interested in the romantic sweeping proposal and a lot more interested in finding gaps that are overlooked when we focus on the main problem. Often, smaller increases in the process can better the quality of life for those part of it and bolster our ability to isolate what the “real” problem is. Instead of getting lost in a sea of possible problems and, consequently, possible solution, we focus on the immediate hurdles we can overcome and then dramatically increase our ability to solve the problem at large by process of isolation and/or elimination.

This isn’t how I’ve seen the legal community solve its problems. For one, it’s averse to change overall. It’s traditional and, by its nature, quite married to precedent, and not just in case law. Moreover, which I’ll touch on later, every solution to a problem must must be at peace with the overarching ethical rules to which lawyers are beholden. Another hurdle to this is that such guidelines are set by state bars, meaning what is ethical in one state might not be in another. Creative solutions to non-substantive problems are thus not only tacitly discouraged by culture but also, as a trade-off to for ethical lawyering, genuine rules.

The Refugee Ban as a Pilot for Better Legal Services

This past weekend, President Trump signed an executive order (“EO”) that “suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.”

Lawyers quickly camped out at airports. I was not among them. Regretfully, I am licensed in NY and currently unsure of my ability to practice law – even at a federal level – under these circumstances. I’m attempting to clarify it, but nevertheless my participation was limited to Facebook posts and a local rally.

I do have friends who participated. Many have signed up for an Airport Triage. This and similar initiatives seek to compile a list of attorneys who are willing to represent anyone detained or otherwise affected by the EO. It also lists the times they are able to do so, how they can be contacted, and additional information such as whether you can file a habeas corpus petition and what areas of law you typically practice.

Essentially, it’s an intake form. A small, rather thankless but necessary description of who your potential client is, what they need, and how you two can communicate and get together.

It got me wondering about what sort of phone applications one could create. As I mentioned above, this is a very small thing — the sort of thing we really don’t think about when it comes to access to justice. But one hurdle of access to justice is that the people who need lawyers often won’t ask or don’t know where to go. Another is that there are a lot of attorneys who simply cannot afford to do pro bono.

But what about those people who want to do pro bono work and mean to do pro bono work but it gets lost in the sea of other obligations? What if we could lower the barrier to entry for requesting legal aid while providing the sort of information that comes as a push notification and a very short list of facts that, like the refugee ban, galvanizes an attorney

This issue is sexy to us this weekend, but even after the stay and as this is litigated, people will be affected by policies the Trump administration settles on. They are unlikely to change in intent even if they change in process. Programs that keep this and other issues in the minds of attorneys, as well as continue aligning those needs with attorney skills, are worth exploring.

Obviously “I need help with my Earned Income Tax Credit and my husband/wife is a crazy bitch” is not as enticing as protecting the due process rights of a suffering class of people. But the basic thrust is that (1) there are people out there who need lawyers and have engaging/sympathetic/whatever cases, and; (2) there are also a lot of lawyers who do, in fact, want to donate their skills but, like all of us, put it on the backburner until something provides an obvious motivator.

Basically, legal aid societies typically function as the broker for volunteer services. My proposal here, not having considered ethics yet, is to remove the middle man by creating a functional intake app that allows lawyers to screen possible volunteer cases. It’s also a format that is easily accessible to potential clients and is, perhaps, not as daunting as walking into a law firm.

I’m still hashing this out in my head, and I don’t want this post to be too long, so here is a quick list of other off-shoots to this:

  • I’m focusing on a sort of brokerage because apps that focus on being a substantive resource tread too closely to providing legal advice. Providing legal advice can create client relationships one doesn’t want, and depending on who makes the app and populates its information, could run afoul of lawful-practice-of-law, well, laws.
  • Another potential is to use it as a means for attorneys to seek clients who want to operate outside the bounds of a traditional firm. These are probably clients who occupy that working poor/lower middle class range. I’m not sure what the ethical implications are since there are rules about billable hours, but it could function as a means to broker a billable hour they can afford. I’m sure that such a thing would have to be blessed by a state’s ethics bar before this could be done. We don’t want non-lawyers to overshoot how much they should pay only to have a more savvy lawyer take advantage, for example.
  • The unspoken hurdle, particularly in my last point, is cost. Not just cost in development, but cost of offering services. A major pain point in the legal community is that (1) it’s expensive to become an attorney, such that; (2) it’s often cost-prohibitive to work for less than the kind of billable hour that precludes representing kinda-poor people.
  • In general, I’m interested in seeing what other organic solutions to client/attorney hurdles come out of this event. If there’s a silver lining, it might be that necessity begets inventions or otherwise jerry rigged systems that reveal small solutions to larger problems.
  • Of course, my bias is that of a lawyer. We can also consider that refugees and immigrants, as two distinct classes, have some overlapping needs that must be met. Such an app could be used to find people – attorneys or otherwise – who speak their language or are some other kind of advocate.

As someone who is not a developer, that is a major gap in my thinking, but I’m certainly very interested in what other lessons we can learn here – hopefully something more positive, long-term and scalable – to improve access to justice and client experiences. I say this as someone who is, as another disclaimer, no longer has to work with clients so that is yet another blind spot of mine.

Anatomy of a lie.

President Trump claims millions of people committed voter fraud. We’ve been told he plans to launch an investigation into this alleged fraud. Here’s what we know: this is false. There is no proof. No one has corroborated this investigation.

(Maybe I should say few people have corroborated; a golfer friend of President Trump’s is the origin of the claim.)

Under normal circumstances, this is a lie. Journalists understandably have to take a more cautionary approach. There’s risk in publishing something so strongly worded. For starters, it’s so concrete a statement and rooted as a factual allegation that it would trigger libel concerns. No worries in this specific situation because a defense to libel is truth and the bar for a public figure is malice, but it’s still part of a publication’s calculus.

Another hurdle is the integrity of reporting. There’s always the usual concern over due diligence and corroboration, but there’s the additional risk of political reporting where truth exists on a spectrum. By this I mean not every statement exists on a binary scale where we can measure its validity and determine in an absolute sense if something is exactly true or exactly false.

There’s virtually no argument over the falsity of this Trump’s claim. Rather, the hand-wringing that has occurred is the severity of language publications should use. The New York Times decided to use the word “lie.” NPR used “falsehood.” NPR justifies its use by way of the dictionary, which requires intent and, they argue, they cannot know what goes on in the president’s mind:

“A false statement made with intent to deceive,” Kelly says. “Intent being the key word there. Without the ability to peer into Donald Trump’s head, I can’t tell you what his intent was. I can tell you what he said and how that squares, or doesn’t, with facts.”

I disagree. Now, they’re journalists, and I’m a lawyer, so our problem-solving mechanisms are likely quite different. Plausible deniability is something with which us law-folk are quite familiar. Many people like to believe the law is read so literally that you can be vindicated under the most technical reading of the law.

Not so. People do not act literally; we do not bind ourselves to linear readings of behavior. We speak casually and we contort. Sometimes we act deliberately, but nonetheless rashly. The law captures this and, when determining liability or culpability, will frequently impute knowledge and intent. Thus the standard for “intent” is would a reasonably prudent person or should a reasonably prudent person have known X, where “X” is an act that would happen.

I think that should be the standard here. No, I’m not arguing for legal culpability or anything of that sort. I do want to argue that this is a useful framework, especially when writing about someone who is potentially very well-practiced in deception (“truthful hyperbole.”)

If President Trump did not already know that his claim was false, he should have known. This information is readily available. As president, he has ample resources at his disposal to uncover the truth. The bare minimum of due diligence on his part would have revealed that voter fraud is sparse, let alone rising to the threshold of millions of people.

Moreover, this standard can ramp up. A reasonable person – human buzzkill, the kind of person who always looks both ways, runs against traffic, and uses his blinkers – could have accomplished the above. President Trump is President of the United States. Our bar for the presidency is high regardless of our thoughts on the outcome of the election. No one would claim that idiocy is the standard by design, all joking aside. In a car accident, I would be held to the standard of a reasonably prudent person because I’m an average driving adult. A professional driver, in contrast, would be held to the standard of a reasonably prudent professional driver, complete with his or her entire sophisticated and practiced driving skill set. President Trump should be held to the standard of a reasonably prudent President.

Likewise, when it comes to public claims made to the American people and have shocking implications about the state and integrity of American democracy, the President is not held to the standard of the average twitter user. He should be held to the standard of the Commander and Chief of the United States – doubly so when he requires his press secretary, official representative of the White House, to evangelize these claims.

Finally, this is a pattern. Trump’s claims predate his inauguration. People, including presidents, make mistakes, speak quickly, and sometimes casually. Even if we were to be forgiving about the above standard and argue this was a passing comment, that is contravened by the fact that he has repeated this argument. There is no ambiguity in his intent to spread what is frankly disinformation.

I understand the hesitancy. A peril of political reporting is that politicians make spurious statements all the time. One also doesn’t want the potency of “lie” to be entirely loss. Tossing strong language around is a way to completely undermine the power of those words, and thus we want it reserved for the most egregious acts.

By way of contrast, President Trump’s claim that Mexico will pay for the wall is specious at best. The proposed 20% tariff will foreseeably land on the American consumer. However, it’s not false. Mexico will pay that tariff. We can argue that Mexico’s decision to pass that along to the consumer is independent and out of the hands of the administration, and that they’ve fulfilled their obligation by attempting to hold Mexico to account. It’s dubious and arguable, but it’s precisely because it occupies such a gray area that we need to provide some benefit of the doubt to politicians operating in an imperfect world with fallible human institutions.

That’s not the case here. The repetitious nature of President Trump’s claims, coupled with his utter lack of due diligence and failure to corroborate or otherwise provide some prima facie (face value) case for his claim has every indication that he knows he’s wrong. Even if he’s completely bubbled, he absolutely should know and it’s fair for publications to impute that intent on him for the aforementioned reasons – namely that he had ample opportunity and resource to uncover the veracity of his claim and either didn’t or chose to act contrary to it.

I’m frankly not sure of any other situation where “lie” might appropriately be used. Publications presumably think that the word is acceptable in some circumstances or else we wouldn’t be having this debate at all. The mind reader standard completely precludes this ever happening, though. Short of walking out on stage and prefacing his statement with “Okay, I’m going to lie now,” we’ll never know the inner motivations of President Trump or any other human beings. We do not possess the capacity to meet NPR’s hurdle.

To conclude, the Prudent President standard illustrates the level of disregard for proof that is palpable and within the realm of actual human faculties, and therefore this is one of those rare occasions where a judicious use of “lie” is wholly appropriate.

The Women’s March and that time the Pope tried to shut down a bunch of BAMF nuns.

I have so many thoughts swirling through my brain regarding the Women’s March!

One of the big themes (or critiques, maybe) was intersectionality of feminism. I want to recommend the recent Politics and Prose on women’s rights teach-in. There’s a major unpacking of all of these elements. Some points I want to pluck out:

  • Many movements are minority movements. The feminist movement is a majority movement. There are a lot of women – half the population – so by definition you’re dealing with a broad group of people who identify both as women and then many other things (race, ethnicity, profession, class, etc.)
  • Acknowledging the above is an important strength. A dominant strain of oppression is divide and conquer. It’s important to focus on the divisions in order to isolate the problem and resolve them. But it’s just as pivotal that the narrative not be defined by the natural distinctions between all groups participating because it’s a characteristic means by which to ensure in-fighting rather than focusing on the external hurdles the group is attempting to fight.

One of the divisions was the pro-life and pro-choice movement. How do we approach this wrinkle? Reproductive rights have been under massive, targeted assault. It’s entirely fair, in my view, for a women’s movement to hone in on this reality.

The origins of this movement were progressive. Historically, a dividing line between progressives and conservatives has been abortion. I think I want to modify this line. I am extremely pro-choice but I am also a big coalition builder, sometimes to a fault, which is why I’m publishing this. I want to throw some ideas out there but I also want some pushback if I’m not being hardline enough, as is often my tendency.

I want to set the table by focusing on the intersection of what we typically consider “women’s issues” and abortion.

I went to a Catholic high school, so my perspective is informed largely by a very liberal, social justice oriented, approach to issues. I’m not religious, but naturally the Sisters of Mercy viewed their mandates through the lens of the Catholic faith, and many pro-life groups are also informed by a wide assortment of religious or otherwise faith-based concerns. I’m going to admit at the outset that this colors my perception of pro-life movements and groups led by women. My experience has been positive. I know this isn’t true everywhere.

Nevertheless, in the majority of this experience, and with a lot of pro-life groups run by women, the tone, direction, and policy aims of the groups are vastly different from US policy makers. The pro-life agenda is expansive in that it focuses on women at risk, generally, as well as children. This agenda includes, but is not limited to: dealing with domestic abuse, providing food and shelter, education, healthcare (preventative and reactive), as well as a myriad of programs aimed at supporting children.

These are not issues that only affect women, but American political discourse trends towards packaging family economic issues as synonymous with women’s issues, presumably because a lot of that vulnerability syncs up with the single mother demographic. That’s a significant but separate conversation.

The tone is distinct. The emphasis is by and large on bettering the quality of life these women experience, thus minimizing the extent to which they are “at risk,” whether for violence or exploitation or for being put in a position where they would have an unplanned or unwanted pregnancy. The trade-offs emphasize a net benefit of reduction in abortion via a quality-of-life or access-focused agenda.

This is in stark contrast to the pro-life policy agenda of lawmakers (note: not the pro-life movement at large), who focus far more on restricting access to all sorts of information and healthcare that would allow women to make informed reproductive decisions. If a policy, such as prenatal care, has a net benefit for the health and welfare of mothers and babies, it will nonetheless end up on the chopping block if one iota of it can be framed as preventing abortions (in this case, lawmakers argue that the knowledge provided in these check-ups could potentially lead parents to choose aborting babies at high risk for defects, etc.) The trade-offs are thus: any whiff of abortion requires limitation or prohibition. It’s an exercise in degraded political signaling, packaging any and all punitive and restrictive measures as a pro-life victory regardless of outcome.

I think many of these pro-life groups do line up with is the same progressive policy agenda of most women’s rights movements. It aligns considerably with the platform outlines of the Women’s March and the initiatives previously asserted by Hillary Clinton, save for the specific act of getting an abortion. Access to preventative and prenatal healthcare, paid parental leave, support for caretakers, elder abuse and support laws, children’s welfare, etc etc. These are all major overlaps in a huge policy Venn Diagram.

There’s some precedent for this:

The sisters were also reprimanded for making public statements that “disagree with or challenge the bishops, who are the church’s authentic teachers of faith and morals.” During the debate over the health care overhaul in 2010, American bishops came out in opposition to the health plan, but dozens of sisters, many of whom belong to the Leadership Conference, signed a statement supporting it — support that provided crucial cover for the Obama administration in the battle over health care.


Word of the Vatican’s action took the group completely by surprise, Sister Sanders said. She said that the group’s leaders were in Rome on Wednesday for what they thought was a routine annual visit to the Vatican when they were informed of the outcome of the investigation, which began in 2008.

“I’m stunned,” said Sister Simone Campbell, executive director of Network, a Catholic social justice lobby founded by sisters. Her group was also cited in the Vatican document, along with the Leadership Conference, for focusing its work too much on poverty and economic injustice, while keeping “silent” on abortion and same-sex marriage.

“I would imagine that it was our health care letter that made them mad,” Sister Campbell said. “We haven’t violated any teaching, we have just been raising questions and interpreting politics.”

The group was also accused of being too radically feminist (PDF):

Radical Feminism. The Cardinal noted a prevalence of certain radical feminist themes incompatible with the Catholic faith in some of the programs and presentations sponsored by the LCWR, including theological interpretations that risk distorting faith in Jesus and his loving Father who sent his Son for the salvation of the world. Moreover, some commentaries on “patriarchy” distort the way in which Jesus has structured sacramental life in the Church; others even undermine the revealed doctrines of the Holy Trinity, the divinity of Christ, and the inspiration of Sacred Scripture.

It might seem silly to some to focus on women’s groups and women’s leadership. I used to believe this myself, but as I’ve extended my professional life, I’ve found increasingly that diverse groups beget creative solutions. Moreover, they add feedback that never would have entered my mind. In December, an Ohio lawmaker stated that he “never thought about” why a woman might get an abortion. I don’t know, but strongly suspect, that every woman in the pro-life groups seeking entry to the Women’s March has considered that question, probably deeply. The next time any law regarding women’s reproductive rights is discussed, I at least want those people in the room.

The rough building blocks for building a coalition are there. I think the traditional paradigm of pro-lifers and pro-choicers in constant opposition needs to pause. I’m under no illusion that, at some point, or on some issues, they will clash directly and won’t be able to accommodate one another. This isn’t a call for a ra ra kumbaya. As I said above, there is a heightened assault on reproductive rights today and the legislative and executive – potentially judicial – branches are poised to undercut any and all gains. But I think by aligning with these pro-life groups on other essential policies we accomplish a few things:

  1. We create a major voting bloc in opposition to the Trump Administration, generally;
  2. We change the conversation from using abortion as a punitive signaling measure to a quality of life assessment resulting in a net loss of women at risk and unplanned/unwanted pregnancies.
  3. We increase the probability that the policies directly affecting that quality of life assessment are passed, e.g., parental leave, domestic abuse reporting, childcare availability, etc.
  4. One marker of this campaign was both explicit and coded misogyny, ranging from a video explicitly condoning sexual assault and degrading language, to the coded lampooning of Hillary Clinton’s supposed lack of SSSSSSStamina. I think this was a catalyst event allowing women to identify as women who experience unique and targeted disparagements. Pro-life women experience this too.

I don’t begrudge the leaders of the Women’s March for their judgment call on exclusion of pro-life groups. I think it was a combination of having the march grow beyond anticipation coupled with a lack of resources to respond to competing demands in any truly deliberate way. As the protest transitions – hopefully – to policy agendas and coalition building, I would definitely like to see them explore this alliance further, since I think it guts one of the last few bastions of the Culture War on which the right tends to thrive.

Let the right go back to basics instead. Let them focus on liberalized trade and deconstructing the Road to Serfdom Donald Trump has led them on. I, for one, would welcome such a return as a fan of the above myself. Until then, I’m quite happy to take a practical step with the Democratic Party and help them internalize more progressive policy, ideally (and this is my own bias) in a constructive format rather than over-learning the lesson of economic populism, but I digress.

Ethics in journalism – no, for real this time.

Tons of thoughts swirling about Buzzfeed’s decision to post the unverified dossier on alleged Trump actions while in Russia.

Pardon my sarcasm: but I’m sure many of you can take a hint with words like “unverified” and alleged.”

My sarcasm stems from the rather patronizing admonishments towards Buzzfeed, which seemingly revolve around the understanding that readers are going to be misled by its publication — a publication Buzzfeed took great pains to explicitly note had not been corroborated.

If it’s not verified, why publish? Because the newsworthiness of this publication was primarily in that it existed; that politicians and journalists alike knew of its existence; that politicians and journalists were talking about it; that Trump and Obama were both briefed on its existence; that John McCain had passed this to the FBI prior to Election Day; that there are facts consistent with the allegation that Trump (either directly or through his campaign staff) have some connection with Russia, and; this connection could range anywhere from deliberate and nefarious to incidental and potentially reckless.

Even if this turns out to be false – and I suspect a lot of it probably is – few people (if any) are defending this on the basis of absurdity. There’s enough of a brick wall of concern regarding Trump’s business and potential Russian ties that keeps this within the realm of plausibility. That’s not just newsworthy; that should get over the hump for official inquiries and investigation.

It’s frankly absurd that the political and media class get to blanketly gatekeep information highly relevant to the American people both as voters and as citizens. For the latter, this should increase demand for Congress to require some kind of disclosure on behalf of Trump with respect to his international business ties, including, potentially, Russian ones. Likewise, the allegation that his staffers, some of whom have a direct working relationship with powerful Russians, visited Prague, is especially disconcerting in light of confirmed intelligence reports of Russian interference with our election. All of this makes the mere existence of this publication material to our interests.

Moreover, it begs into question why James Comey made the unprecedented decision to release two letters on the cusp of the election regarding Hillary Clinton’s e-mails, but not with respect to the existence of this rough report. Comey made this release before warrant with any kind of specific request was made; there was no concrete knowledge of what those recently found emails entailed (it ended up being nothing) but it was nonetheless deemed important for voters to know.

I understand the concern about feeding the right wing narrative that the media is out to get them. I also get that now the right has co-opted the fake news concerns, framing themselves as the victim. These are bad, yes, but given a call between free information for democratic readership and the continued attempt to discredit the media, the former wins.

It’s important that news media play their hand carefully with respect to maintaining and rebuilding their credibility, but that was lost in a separate conversation about false equivalencies and disproportionate critique of candidates. The narrative that the media is part of some vast left wing conspiracy to harm Republican interests is, however, not new, and the attempts by many outlets to assuage their fears by cow-towing to them is what got us to that coverage issue in the first place. Moreover, while this is an important conversation to have, it’s more about reputation-building and narrative-crafting. Ethics are not dictated by how well those ethics are received. They simply are, and let’s not conflate the “Was this ethical?” conversation with machinations.

As a reader, I’m personally glad Buzzfeed published the report. Knowing it was unverified, I took the substantive part of it with a grain of salt. My main takeaway was that someone considered credible had this information, passed it to his contacts, and my government sat on it. Meanwhile, they were bending over backwards to accommodate and, arguably, fan an e-mail scandal close to election day where there was a heightened potential of influencing its outcome. (Update: boom.)

The publication hammered home not just that some amorphous report was out there, yet another intelligence report on the Russians lost in a sea of intelligence reports about the Russians and Trump. Armed with this information, it only bolsters my concerns and suspicions about the tie between my president-elect and a nation hostile not just to our government, but the ideals upon which that government was formed. That goes a lot farther than “salacious.”

I don’t begrudge other outlets for their timidity. Media ethics have long told reporters that they’re gatekeepers in the sense that publishing unverified information without context can be misleading and fraudulent. However, I think whether something is misleading turns an awful lot on the circumstances and the information provided. If everybody part of a special class gets to talk about unclassified reports and it can be clearly published as an unverified, uncorroborated report, I’d respectfully request that they give readers some benefit of the doubt that they know what those words mean.

Contrasting Empathy.

I want to have a conversation on how we frame our post-mortem of the election. All of the talk about empathy is swell, but I think that’s a two-way street, and what bothers me can only seemingly be broken down into contrasts:

1. Empathy vis-a-vis gender.

The first draws on two thoughts: 1) men in their prime are out of work in at an all time high, and; 2) the jobs that are available are service sector jobs and commonly referred to as “pink collar” jobs since they rely on skills commonly viewed as feminine (e.g., caretaker roles.)

For the former, “prime” is the key word. It’s a lot harder for anyone with a significant long-term investment in a skillset to drop it and grab a new one. This often requires retraining if not new education. That’s a time investment in its own right, and even if you get hired and can start tomorrow, your applicancy is competing against younger counterparts who will gain experience over a longer period of time. They do not have to incorporate concerns about looming retirement or sending their kids to school or maybe even supporting a family at all into wage negotiations. This group I’m segmenting off, and so do those numbers, for a reason.

With respect to the latter, there’s an understanding that a psychic element exists with employment. We accept for traditional white collar professions that these are a calling and part of our identity. Less so with “low skill” jobs (a term that’s debatable.) I wholeheartedly subscribe to the notion that people who derive enjoyment from their work are not only better workers, but more ambitious, more likely to take reasonable/calculating risks, and generally more likely to make the economic pie grow on top of other positive externalities.

But as Cathy O’Neil points out in the podcast, being paid something is being better than being paid nothing. Or is it? Because as is later discussed, plenty of men are opting out of work in lieu of social welfare programs, so the relevant calculation is weighed against those benefits rather than 0.

So this has me thinking about a few things. The first is how empathetic do we need to be towards people who dislike their position not necessarily because they value working with their hands or have a skillset that is no longer necessary; rather, they simply do not like the idea of doing something womanly? Do we indulge that?

Similarly, On the Media had an excellent deep dive into poverty in America. One revelation was the extent to which poor people, most of whom were single mothers, often had to choose between having a job and feeding their family. This is because having a job would result in losing social welfare benefits that paid for necessities like food, and the available job was low paid. One could either take the job and be unable to make ends meet, or make ends meet by ensuring they remained impoverished and therefore qualified for welfare benefits.

In the American narrative, people who can work but don’t are demonized. We have a name for them – a gendered one: welfare queens. Thus we have this subset of young men who either won’t work or work sporadically but cannot hold a job down who are taking advantage of social programs and our takeaway from this is to empathize with them and try to solve the problem. In contrast, for decades, we’ve had poor people who are predominantly female have similar tough choices to make, and we’ve cast them in this unforgivably lazy and parasitic light. Again, I feel I have to ask to what extent does our empathy apply? Or maybe to whom? In being empathetic, shouldn’t we be asking ourselves if we’ve been too unfair or judgmental with respect to all people and not just the white (male) working class?

2. Empathy vis-a-vis race.

This one is simple to state: there is an opioid epidemic running rampant in the same disaffected parts of a America suffering from loss of manufacturing jobs. With light shed on this, there have been several calls in editorials and from organizations to combat this phenomenon and the destructive impact it has had on communities and families, to say nothing of the clearly sad lethality of drug abuse.

But when drugs impact black communities, our response is far less empathetic. It’s severe. Family breakdown is attributed to diminished morality; our solution to combating drug abuse has been to incarcerate people, and; we have this general understanding that people who enter this cycle of drug abuse (and often poverty) are bad and suffering moral failings that need to be harshly corrected.

I’m not sure if the change is wholly due to race. We have a more sophisticated and generally empathetic approach to drug abuse now in contrast to the early days of the War on Drugs. Still, it begs the question: why is it we turn our eyes towards sensitivity and problem solving for this demographic and not others?

3. Empathy vis-a-vis generation.

This is the one I struggle with the most. I spent a year looking for work after law school. I worked the year in between undergrad and law school. The prevalent narrative for my generation – who was searching for work during the peaks of the Great Recession – was that:

1. Life isn’t easy;
2. You’re not entitled to a job;
3. You need to work harder.

But when middle aged and older Americans struggle to find work, someone stole their job and trade deals are unfair to Americans.

I suppose I want to know when being an American stamped your name on a job — when it gave you a property right in employment such that someone could wrongfully take it from you. I’m an American. I was born here. Where was my job with my name on it when baby boomers were calling me entitled?

I want to know when suddenly market forces had to be harnessed in a way that was fair to a specific group’s interest at the expense of a greater net economic benefit. I want to know when the correlation between working hard and getting a job disappeared. The disparity between gains for older folks and my generation still loom and in a way that goes above and beyond their simply having had more time to accumulate wealth.

Finally, when I was looking for a job and couldn’t find one, the basic assumption was that I felt I was too good for certain kinds of work, like service sector work (I applied to these jobs, for the record.) I was told that my generation was entitled for “assuming” (we didn’t) work would be there. If I wasn’t employed, there was causation between this failing and my work ethic, or lack thereof.

Clearly this is the spot where I have the biggest chip on my shoulder. When I talk about it in terms of solving problems, I agree that these are problems to be solved and these people deserve my empathy. However, I won’t pretend that I haven’t been considering why – here and now – we as an American society have suddenly decided that this is the problem to be solved. My suspicion is that it still has a lot to do with the fact that the litmus test for a free/wealthy/just society is how we treat older white males, since this is our traditional normative conception of “the people.”

It bothers me that even the most well-intentioned of critics and policy makers fail to consider this and, to the contrary, this is viewed as a focus on “just issues” rather than identity politics, when identity seemingly has a lot, if not everything, to do with why these concerns have jumped the line.

This is hard – Obama on Healthcare.

Healthcare policy is such a curiosity, but the political landscape of it is downright fascinating. Over the past few months, with a meaningful ability of the Republican Party to repeal the Affordable Care Act (“ACA”), we’ve all been reviewing two things: first, the successes and failures of the ACA, and; second, what happens after any repeal.

This has forced me to review our approach to this debate and how its metrics have changed over time. How do we measure success of the ACA? Is it that more people are covered? Or is it by how expensive coverage is? Further, we have poll numbers about favorability of the ACA, but how do we break that down between people who do not like government dabbling at all, people who think the ACA did not go far enough (i.e., people who originally wanted a single payer system and still do), and those who do not like the ACA as it has been portrayed by politicians, but nonetheless like the benefits they’ve derived by its implementation.

If I can recommend two good listens, they would each be Vox podcasts. The first is The Weeds episode where Sarah Kliff interviews folks in Kentucky about why they voted to Trump relative to their thoughts on the ACA. There are a lot of interesting revelations here. Primarily:

  • There are a lot of people who like the benefits they’ve received from state expansion of Medicaid as a result of the ACA, but it is coined by a different state-specific name, and therefore do not associate their likes with the ACA.
  • There are a lot of people who do make that connection but are hedging their bets against Trump, i.e., they think that Trump either will not be able/try to repeal the ACA or that, if he does, it will be better.
  • Most interestingly (in my opinion), was the woman, Kathy, who has been signing people up for the ACA and is disappointed in the fact that it’s so difficult to navigate and so much more expensive when it comes to the working poor — those who make enough money not to qualify for poverty-based programs for Medicaid but don’t have the dollars on hand to eat the cost of increased premiums, nor the time to navigate the requirements of the ACA. Essentially she feels it’s wrong the people who do not work have access to an easier single payer system (though she doesn’t call it that) but those who are working and struggling have to deal with this additional bureaucratic stressor.

I think I really took for granted in my own wonkish bubble just how much Republican market arguments didn’t resonate with many of their voters. This splits in a few ways.

The first is that a lot of people who voted for Trump – who might not actually be historically Republican voters – don’t give a lick about free markets or government power abuses, and really just resent the encumbrance and preserved unfairness of their new healthcare decision-making tree. This is the more populist faction found primarily in rural, southern areas (Robert Leonard has an excellent article detailing how the south has a more determinative populist streak than anything.)

The second is we have a lot of people who have crafted an identity around this Republican orthodoxy in that they want to identify Republican and have internalized the arguments around freer markets and freer people (a sentiment I still largely agree with, though have lightened up on, especially with healthcare, but I digress.) However, on daily terms, their desires translate to the opposite:  like Kathy, they practically want the ease of access and lower costs provided by programs like Medicaid, but philosophically oppose the underlying proposition that this requires turning healthcare into a single-payer public good.

This is in stark contrast to the narrative that Republicans have crafted in the past. Only time will tell if this will harm them, since all voters seemingly have short memories (I’m not immune to this, myself.) I do think it’s going to be a difficult balancing act to reconcile their Constitutional arguments against the ACA – the principled attack that this is an unconstitutional extension of government power regardless of what the Supreme Court says – with their newfound vigor in repealing the ACA but then committing to replace it with something else. That’s government involvement by any name; the question is whether they name it something that sells better to the bloc committed to this narrative.

Similarly, on top of the above, the question remains what the replacement will be. Let’s set aside the repeal-and-delay tactic for the moment. If we have an entire bloc of people that traditionally vote Republican on principled grounds, the Republicans presumably want to keep them. That requires some adherence to a narrative that presents a limited government, fiscally responsible, constitutionally-ordained approach.

The wrinkle is the folks who generally like the benefits received by single-payer, Medicaid-esque options. If you want to replace the ACA with something that gives them those benefits, you need to wrap that up in a narrative that is couched in the above precepts for both the true believers and those who find it important to identify as Republican regardless of actual policy.

Here is where I’d like to insert my second suggestion, which is yet another Weeds podcast, this time an interview with President Obama and his reflections on the ACA as well as his long-term expectations for Republicans. We actually get to hear from Kathy, who asks Obama directly about the concerns mentioned in the original Weeds Podcast. I think this is an excellent deep dive. If anything, the implementation of the ACA let us see a lot of the incentives at play both as a market and politically. I think there are a lot of lessons to be learned from it, especially for those who are wonkish and intent on mulling over solutions to its failures.

Moving on, you have this this populist group that is very outcome-oriented. The kicker for them will be whether or not their lives feel better in the short term. This is probably the largest hurdle:

  • Short term results in policy initiatives is difficult;
  • This is especially true with healthcare policy, at least good healthcare policy, because you’re often dabbling in a long game;
  • As the Democrats have learned, success is heavily dependent on people making the tie between your policy and their sense of a better quality of life. Democrats hedged the ACA on the understanding that people, once covered, would accept the ACA because of the improvement in their lives. This proved untrue not just because, for many people, the increased sense of unfairness overwhelmed any real benefits, but also because the tangled web of the ACA made it difficult to tie even those real benefits back to the ACA.

In short, the Republicans did a really good job of taking the burdens of the healthcare industry and thrusting them wholly on the ACA. There’s just a lot of tough nuts to crack in healthcare, and the ACA has its failings for sure, but Republicans were able to take all hurdles and frame them as Democratic failures. In contrast, Democrats did a really bad job of distinguishing between what was actually caused by the ACA, and illuminating the ways in which the ACA specifically caused better healthcare coverage.

I think the salient point here is that most Americans implicitly view healthcare as a public good. It would be vastly unpopular and politically impossible to get rid of Medicaid and Medicare. The latter is exceptionally popular, and is basically single payer for retirees. It doesn’t suffer from the same image problems of Medicaid because we don’t view seniors as people who should be working.

Medicaid might not be visually popular, but we know getting rid of it would have political backlash once broad swaths of impoverished people no longer had access to that safety net. States in particular are likely to fight back against this, even Republican-majority ones, because at best the cost would be need to be covered by states. More likely, you’d just have a lot of folks experiencing true burns, not hypothetical ones, and feeling galvanized to push back. As we saw this election, that threat can be real.

Likewise, it’s clear based on our post-mortem of the Obama presidency that even conservative-leaning, or at least Republican-identifying, Americans, as well as Trump voters, desire access to a Medicaid-esque system that has lower barriers to entry and lower costs than the ACA scheme they’ve just been thrust into. It will be interesting to see if Republicans actually try to manage these competing demands, and if this means recasting their position in a frugal-yet-involved light or simply repealing and hoping to delay the political implications until later elections, thus spreading the political cost to Democrats as ACA failures.

It could also be a long-term attempt to defeat the narrative that government healthcare is at all helpful, allowing the establishment to recoup and recover after populist usurpation (slight editorial comment on my part.) If everything fails just right and at just the right time, more orthodox Republicans could see a new opening for bona fide privatization.