Discretion

Discretion

The Supreme Court has just ruled that 1.5 million women cannot proceed in the form of a class-action lawsuit against WalMart for employment discrimination. The ruling did not address the merits of whether Wal-Mart has discriminated against women, only whether the proposed class met the standards for certification, which require (among other things) that there be questions of law or fact common to the class, i.e., "commonality." (The justices ruled unanimously on a subsidiary question of class certification, but split 5-4 on the threshold issue of commonality.) The Supreme Court found that the Wal-Mart plaintiffs had failed to identify an alleged practice of discrimination that applied broadly to the entire class of all women hired since 1998.

The alleged harm in this case does not arise from an identifable company-wide policy. It arises from a delegation of subjective salary and promotion decisions to each local manager. The plaintiffs's expert sociologist argued that, notwithstanding the employer's formal corporate-headquarters policy against gender discrimination, Wal-Mart's "corporate culture" made it somehow "vulnerable" to gender bias. From this, the plaintiffs concluded that Wal-Mart had a duty to take effective action to ensure that women did not suffer statistically in terms of access to higher pay and promotions. The sociologist, however, could not go much further than to point to a vulnerability to bias; in particular, he was unwilling to hazard a guess whether there was a 0.5% or a 95% chance of "stereotypical thinking" producing an incorrect result in any particular decision about a raise or promotion. The Court stated:

[Plaintiffs] wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question.

Accordingly, although the plaintiffs may proceed with their individual discrimination actions, they will not be permitted to proceed on behalf of all women employed at Wal-Mart -- a setback that will markedly reduce their settlement leverage.

This is a "disparate impact" case. The plaintiffs don't propose to prove that each of millions of employment decisions was activated by gender bias, but only that the percentage of women in Wal-Mart's workforce decreases as you proceed up the ladder of pay and responsibility. Women account for 70% of the hourly jobs in the stores, for instance, but only 33% of management employees. The theory is that local managers improperly exercise their discretion over pay and promotions so as to favor men. The illegal "disparate treatment" of women, therefore, takes the form of Wal-Mart’s refusal to limit its managers’ local authority in order to bring it more into line with the gender-neutral aspirations emanating from headquarters, despite headquarters' obvious awareness of the disparate impact.

The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

Rejecting this argument, the Court held:

"[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If [the expert] admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.”

Because I'm naturally sympathetic with women, but just as strongly skeptical of "disparate impact" cases where the actual mechanism of discrimination is hazy, I like to do a thought experiment with this kind of dispute. I've often puzzled, for instance, over the scarcity of conservatives in academia and journalism. Should conservatives be able to bring a class-action lawsuit against the New York Times or Harvard University for disparate impact? (I realize political orientation is not a legally protected class, but just go with me here.) It would be childs' play to establish that many hiring decisions in academia and the press involve subjective discretion, and that the institutions' leaders are vulnerable to stereotypical thinking about the relative merits of the analytical powers of conservatives and liberals. They may not even be fully aware of their own vulnerability. As the dissent noted in today's decision:

The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware. . . . The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, [according to Supreme Court precedent], is a practice actionable under Title VII when it produces discriminatory outcomes.

The dissent's position may be more in line with Supreme Court precedent on these technical class-action standards; I honestly don't know. I do know that this kind of fuzzy thinking about discrimination is dangerous, particularly when it seeks a remedy for unconscious bias. If the Wal-Mart plaintiffs had prevailed, what could the remedy be, other than a removal of discretion from local managers in favor of some kind of blind quota system designed to ensure that equal numbers of women appeared at each rank of corporation position and salary? How else can you extirpate unconsciously bad behavior? When has that kind of rigid affirmative action improved an institution's performance or avoided backlash against the unfairly favored group?

I'd prefer to see employment discrimination cases limited to cases where the bugaboo is something more specific than "discretion." If the presence of discretion in business decisions is really the worst a plaintiff can complain of, then I have no problem with limiting the case to that particular plaintiff, rather than expanding the lawsuit to cover millions of employees working for hundreds or thousands of different bosses, male and female, in numerous different stores, on the theory that some vague over-arching institutional "vulnerability to error" was operating on them all in the same way.

Who's Integrating?

Who's Integrating?

A remarkable comment from the UK:

Muslims are integrating into British society better than many Christians, according to the head of the Government's equality watchdog.

Trevor Phillips warned that "an old time religion incompatible with modern society" is driving the revival in the Anglican and Catholic Churches and clashing with mainstream views, especially on homosexuality.

Normally the idea with integration is that newcomers integrate into the existing society. This is a queer reversal of the meaning of the word -- the kind of meaning-shift that is the hallmark of a kind of political murder. What is at stake is British society's ability to regulate itself according to its ancient rights and customs.

That's the kind of thing that has provoked regular wars in British history, and rightly so. The ancient customs and rights were won on the field of battle, and must be defended there; for if they are lost, there is only slavery before the state.

Father's Day

Father's Day:

Today is Father's Day. I want to tell you about a man I know, a friend of mine who is a very good father. He is also a Commander in the US Navy Reserves, an officer and a gentleman.

He and his wife have two children who are both special-needs. The bills associated with them, even with the kind of insurance and help that you get as a member of the military, have run to over a million dollars. Though an officer in the US Navy is reasonably well-paid, he is not nearly so well-paid as to have a million dollars in savings. So he signed whatever he had to sign to take care of his kids, and took the debt -- as well as the responsibility for their future care -- onto his shoulders.

He already knows how he will be spending the rest of his life: working hard to try to earn enough to pay off what he owes, so that when he dies the banks can seize and sell off the rest. No matter how hard he works, he will likely never accumulate enough to pay off the debt for his children.

We talk about people walking away from their mortgages -- or their families, or their kids -- in pursuit of personal pleasure or advantage. It's worth remembering just what the cost is for the man who does it right. It is a life of hard work, responsibility, and self-sacrifice, in return for nothing except the smiles of your children and the sense of having done what was right.

I am proud to call this man my friend, but there is a reason we don't see more of him. Our world, with its abundant pleasures, has accepted pleasure as the rule: the unlimited sexualization of our public space has driven all objections to its continual march aside; marriage is to be valued chiefly as a contract between two parties seeking pleasure from it, to be dissolved as soon as it is no longer pleasurable; children are to be welcomed only when they are wanted and without special needs, otherwise tidily aborted. All of this makes it possible to live a very easy life, filled with pleasures, each responsibility shrugged off as soon as it becomes noisome.

The good father does otherwise. His life is harder and filled with far less of this pleasure that rules other lives. What he gets in return is hard to say; but it is clearly true that rational man, economic man, would not make the choice. It is honor -- for honor is sacrifice -- that commands it.

Thus we owe good fathers a very great deal of honor. I doubt most of them get it. A nation that has forgotten how to pay every other kind of debt is likely to forget this one too. Nevertheless, gentlemen, I salute you.

Gun & Garden

Gun & Garden:

Via The Sage of Knoxville, a 14-round pump-action bullpup shotgun for home defense.



OK, as far as it goes. It doesn't go far enough, however...



Now you're talking.

Siege fo Beauvais

The Siege and Women of Beauvais:

In this week in 1472, Charles of Burgundy was advancing upon the town of Beauvais in France. She was a proud Medieval city, and even at this late date -- technically just after the Hundred Years War -- her garrison was feudal rather than composed of professional mercenary companies. These are her arms:

The few knights raised by the feudal system were extraordinary strategists, but too small in number to defend the walls against what was then a modern army -- one that boasted not only mercenaries in ranks, but a professional artillery unit that kept up a day and night barrage on the gates of the town. The walls indeed were breached, but in the words of historian Geoffrey Hindley (Medieval Sieges & Siegecraft, Skyhorse Publishing 2009, pp. 125-6):

[Although one gate] was badly holed by artillery fire, his men were fought back by citizens supported by women and even children, bringing up arrows and crossbow bolts and flaming torches to hurl in the faces of the attackers. Many women in fact plunged into the bloody hand-to-hand mêlée, hurling torches on their own account and helping ensure that the enemy could not force entry through what had now become an inferno.

The New York Times piece we read earlier this week mentioned "in 1433, officials in Florence charged with regulating women’s dress and behavior[.]" Regulations were meant not only to deal with possible sexual immorality (as the quote suggested), but also to enforce social class structure on an urban middle class that was increasingly competing with the old nobility in wealth and status.

It is therefore worth noting that the King -- who issued a charter for a municipal corporation for the city following the heroic defense -- also took the step of erasing the sumptuary laws for the city's women. "At a time when sumptuary legislation regulated dress according to social rank," the historian notes, "any citizeness of Beauvais might wear what she pleased; and the annual procession inaugurated to commemorate the victory was to be led by the women."

One of these women was Jeanne Laisné, who was better known afterwards as "Jeanne Hachette" -- roughly, "Joan the Hatchet." This is a fair nickname for anyone to bear, provided it was earned honestly; as good as Judas Maccabeaus, i.e., "Judas the Hammer."

Viking Music

Viking Music from Oslo:

Weapons of Less Than Mass Destruction

Weapons of Less Than Mass Destruction

Carole Anne Bond, a married but infertile resident of Pennsylvania, stole an unidentified "caustic chemical" from her employer and placed it on the door handles and mailbox of her sexual rival, causing minor burns. The State of Pennsylvania previously had convicted Ms. Bond on charges of criminal harassment of the same woman (who was bearing her husband's love child), but when Ms. Bond turned to chemical tactics, her unhappy victim took her complaint to the feds. They obligingly charged Ms. Bond under a federal law intended to enforce a global treaty to prevent nations from spreading the use of chemical weapons. The law in question, sections 229(a) and 229F of Title 18 of the United States Code, forbids knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals” where not intended for a “peaceful purpose.” It was enacted as part of the Chemical Weapons Convention Implementation Act of 1998, which implements provisions of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 1997.

Far be it from me to excuse Ms. Bond's reaction to being cuckolded -- the sense of the Hall may be that she underreacted -- but surely this is a case for state rather than federal authorities? Must domestic disputes be drawn up into the august machinery for regulating international warfare?

Constitutional scholars and limited-government types alike will be interested to hear that the United States Supreme Court ruled unanimously yesterday that Ms. Bond has standing to challenge the federal law under which she is being prosecuted as an infringement of power reserved to the states under the Tenth Amendment. On the other hand, the Court also expressly disavowed taking any view on the merits of the challenge to the federal law; it ruled only that Ms. Bond had standing to challenge it. It will be interesting to see whether the courts below, having failed to see why she had standing to complain of the constitutionality of the law, will grasp the substance of her argument any more readily.

The Old Rolling Skies

The Old Rolling Skies

What's more beautiful than a thunderstorm on the water? Especially if you get to see it in time-lapse. There's a persistent weather pattern off the coast of Australia that produces a nearly constant thunderstorm, called "Hector." This clip is about ten minutes long and is worth watching to the sunset at the end. I love the way the color and smoothness of the water change. It makes you want to go look at some Turner paintings.

Lo, what a glorious sight appears
To our believing eyes!
The earth and seas are passed away
And the old rolling skies

I'm enjoying many of the videos on the site my neighbor sent me to, the source of this post and the one about golf-carts.

And Now for Something Completely Different

And Now for Something Completely Different

My neighbor, who knows that we feel socially inadequate because we lack a golf-cart, has sent me this video. Carts are popular on our small, low-traffic peninsula and are often tricked out for the annual parade. Across the bridge in the city limits, the city fathers have seen fit to pass ordinances requiring them to be licensed and outfitted with various safety devices before they can be driven on the streets. Who needs that? But I do wish my neighbors would emulate some of these über-carts, which feature upgrades with more social utility. These could inspire me to join the cart-culture at last.

We have a local golf course, but that's not what the carts are for. The course's owners have been trying to sell it for years with no takers. It's not officially open for business any more, so a handful of locals still go out and mow it now and then and play on it anyway. Last New Year's Day, one of the fire department captains took his airboat up and down the course. Anyway, the golf carts are for roaming the neighborhood and saying hello, typically at happy hour. Sometimes they congregate at the boat ramp and cook barbecue.

This Sounds Familiar:

I say this very thing every day, but I didn't expect to read it in the New York Times.

But in the face of recent headlines I find myself less inclined to analyze or excuse current mores than to echo medieval ones.

Cassandra will like this piece, I suspect.

There Went a Man:

Sir Patrick Leigh Fermor, may you rest in peace.

On the outbreak of war Leigh Fermor first joined the Irish Guards but was then transferred to the Intelligence Corps due to his knowledge of the Balkans. He was initially attached as a liaison officer to the Greek forces fighting the Italians in Albania, then – having survived the fall of Crete in 1941 – was sent back to the island by SOE to command extremely hazardous guerrilla operations against the occupying Nazis.

For a year and a half Leigh Fermor, disguised as a Cretan shepherd (albeit one with a taste for waistcoats embroidered with black arabesques and scarlet silk linings) endured a perilous existence, living in freezing mountain caves while harassing German troops. Other dangers were less foreseeable. While checking his rifle Leigh Fermor accidentally shot a trusted guide who subsequently died of the wound.
His occasional bouts of leave were spent in Cairo, at Tara, the rowdy household presided over by a Polish countess, Sophie Tarnowska. It was on a steamy bathroom window in the house that Leigh Fermor and another of Tara's residents, Bill Stanley Moss, conceived a remarkable operation that they subsequently executed with great dash on Crete in April 1944.

Dressed as German police corporals, the pair stopped the car belonging to General Karl Kreipe, the island's commander, while he was returning one evening to his villa near Knossos. The chauffeur disposed of, Leigh Fermor donned the general's hat and, with Moss driving the car, they bluffed their way through the centre of Heraklion and a further 22 checkpoints. Kreipe, meanwhile, was hidden under the back seat and sat on by three hefty andartes, or Cretan partisans.

For three weeks the group evaded German search parties, finally marching the general over the top of Mount Ida, the mythical birthplace of Zeus. It was here that occurred one of the most celebrated incidents in the Leigh Fermor legend.

Gazing up at the snowy peak, Kreipe recited the first line of Horace's ode Ad Thaliarchum – "Vides ut alta stet nive candidum Soracte" (See how Soracte stands white with snow on high). Leigh Fermor immediately continued the poem to its end. The two men realised that they had "drunk at the same fountains" before the war, as Leigh Fermor put it, and things between them were very different from then on.

Kreipe was eventually taken off Crete by motorboat to Cairo.

We are all instructed by those who went before. Here was one who went.

Predictions

Predictions:

Let's say that a brain scan can identify children who are 75% likely to have criminal records before they turn 30. The question The Chronicle of Higher Education asks is, would you as a parent want to know? Perhaps a better question: given that the state will insist upon knowing, what protections should we put into place to ensure that these children are not pre-emptively stripped of their rights? To what degree does a 3-in-4 chance that you will do wrong (assuming that the estimate were accurate, instead of pie-in-the-sky untestable twaddle) alter your standing as a free citizen?

Another question that interests me: what if we find out these bad traits are also necessary for good qualities? Psychopathy seems to be linked to creativity; alcoholism is strongly correlated with artistic brilliance.

Good Start

Good Start:

Looks like Rep. Bachmann is off and running.

The congresswoman used her bluntness and charm to overshadow the men at the GOP debate—announcing her presidential bid and passionately defending the Tea Party....

In fact, Bachmann equivocated only once, when she couldn’t choose between Elvis Presley and Johnny Cash.

Well, Johnny Cash, obviously. Not that Elvis wasn't the man, in his day.

Arendt, August., evil

Augustine and Friendship:

I find myself challenged by a claim that I found in Dr. David Grumett's "Arendt, Augustine and Evil" from Heythrop Journal XLI (2000), p. 154–169. His essential argument is that Hannah Arendt got her conception of evil from St. Augustine (on whose idea of love she wrote her doctoral thesis). The part that I find counterintuitive is this part:

The solace of
friends was a source of repair and restoration for Augustine in his early
dissolute life and – this is the key point – a substitute for God. ‘This was
a vast myth and a long lie’ because the flattery of this kind of friendship
is corrupting (C 4.7§13 and 9.8§18).

"C" in this case is the Confession, which is available here.

I'm wondering if this isn't an incorrect reading of Augustine. But rather than say why I think it isn't, I'd rather hear what you think about the proposition: is it correct as a reading of Augustine?

Perhaps more importantly, if it were correct would it be right? Confer Chesterton's Femina Contra Mundus:

The sun was black with judgment, and the moon
Blood: but between
I saw a man stand, saying: 'To me at least
The grass is green.

'There was no star that I forgot to fear
With love and wonder.
The birds have loved me'; but no answer came --
Only the thunder.

Once more the man stood, saying: 'A cottage door,
Wherethrough I gazed
That instant as I turned -- yea, I am vile;
Yet my eyes blazed.

'For I had weighed the mountains in a balance,
And the skies in a scale,
I come to sell the stars -- old lamps for new --
Old stars for sale.'

Then a calm voice fell all the thunder through,
A tone less rough:
'Thou hast begun to love one of my works
Almost enough.'

Here we have a case of lust -- deeply sinful and overwhelming -- that nevertheless begins to be a step in the right direction. I had read Augustine as saying something more like this: that the love of friends is a good thing, but "If souls please you, let them be loved in God; for they also are mutable, but in Him are they firmly established."

What do you think? Is it possible for sin to be a step in the right direction? Is friendship necessarily, then, 'a sin in the right direction'?

Why Should I?

Why Should I?

I call your attention to a post and comment thread at Megan McArdle's site on The Atlantic. For a week or more, she's been discussing why and when student loans should be discharged. Gradually, the discussion has sorted out participants in terms of whether they can see any reason why people should pay their debts unless they're forced to. After all, the law provides for remedies upon default, so doesn't that mean it's purely a question of legal strategy whether to pay a debt? There's a lot of confusion, as well, about whether it's possible to have a moral obligation to a corporation.

Is this new, or have there always been as high a proportion of Americans as this who don't know where their personal obligations come from?

Megan could use some help fighting the good fight. I was pleased to see her notice the same phenomenon C.S. Lewis does in "The Abolition of Man": people still have a strong and instinctive understanding of moral obligations when it comes to the breach of those obligations to themselves:

[W]henever you find a man who says he does not believe in a real right and Wrong, you will find the same man going back on this a moment later. He may break his promise to you, but if you try breaking on to him he will be complaining 'It's not fair' before you can say Jack Robinson.

The Dentist Is Your Friend

The Dentist Is Your Friend

I've had my first experience with endodontic therapy this morning. That's a root canal to us non-dentist types. My husband having had several in recent years, I didn't worry too much about all the horror stories I'd heard growing up. Sure enough, it was quick and painless.

I asked my dentist why root canals get such a bad rap. It seems the procedures have changed markedly for the better. For one thing, the anesthetics are better and are being delivered more reliably, so as to achieve real pain suppression during the procedure. For another, dentists used to have to rout out the nerve and pulp with a little manual barbed file, whereas now it's more common to use low-torque titanium drills that work quickly without cracking the root. They have automatic feedback mechanisms that cut back on the power automatically when they encounter too much resistance.

Root canals sometimes sound fearsome more because of the excruciating symptoms that make them necessary, often an infected tooth pulp, than because of the treatment itself. Luckily for me, I was suffering only from a slowly dying nerve that made the tooth abnormally sensitive to heat and cold, instead of from a just-shoot-me-now torturous abcess, so the whole procedure was pain-free. It took less than two hours, of which less than half was the drilling, the rest of the time being used up in waiting for the pain-killing shot to take effect and mucking about with the packing of the empty root and formation of the temporary cap.

Although post-root-canal teeth reportedly hold up well over time, it's never a good thing to have to remove the pulp, which is supposed to serve a function in hydrating the tooth and keeping it healthy. Late last year some interesting research was published about a new method of delivery of antibiotics using propylene glycol to penetrate efficient through the dentinal tubules. If it pans out, many root canals may be avoided in the future. These guys seem to be among the Pros from Dover in the field today.

I consider dentistry one of the crowning achievements of civilization. They've come a long way since the dark ages of dentistry:

In 1725, Lazare Riviere introduced the use of oil of cloves for its sedative properties.

In 1746, Pierre Fauchard described the removal of pulp tissue.

In 1820, Leonard Koecker cauterized exposed pulp with a heated instrument and protected it with lead foil.

In 1836, Shearjashub Spooner recommended arsenic trioxide for pulp devitalization.

In 1838, Edwin Maynard of Washington, D.C. introduced the first root canal instrument, which he created by filing a watch spring.

In 1847, Edwin Truman introduced gutta-percha as a filling material.

In 1867, Bowman used gutta-percha cones as the sole material for obturating root canals.

In 1891, the German dentist Otto Walkhoff introduced the use of camphorated chlorophenol as a medication to sterilize root canals.

In 1895, . . . the scientist Konrad Wilhelm von Roentgen accidentally discovered a new form of energy that had the ability to penetrate solid material. Because of their unknown nature, he decided to call these rays “X”.

A few weeks later Otto Walkhoff, a dentist in Brunswick, Germany, took the first dental radiograph, making a contribution to dentistry that almost equaled Roentgen’s to medicine.

In 1908, Dr. Meyer L. Rhein, a physician and dentist in New York, introduced a technique for determining canal length and level of obturation.

All these advances came to an abrupt halt early in the 20th century, when many experts concluded that they posed an unreasonable risk of trapping bacterial infections below gold caps. For nearly forty years, therefore, the treatment of choice for an infected tooth pulp once again was extraction. Around 1950, endodontics got back on track and has brought us to our current enviable condition.

Now that my lips and tongue are no longer numb, I think I'll go have lunch using my newly pain-free tooth.

Did QE2 Prop up European Banks?

Did QE2 Prop up European Banks?

Zero Hedge is kind of a wild site, somewhere they're not afraid to explore conspiracy theories, so I'm not sure how much to make of this article, which has now been linked by Business Insider. But it's an interesting and detailed argument that, in monetizing debt, the Fed was not bailing out our own banks but U.S.-based branches of European ones, to the tune of $600 billion. Zero Hedge claims this explains why U.S. banks still find themselves not only unwilling but unable to lend out their reserves.

Why Can't a Woman Be More Like a Man?

Why Can't a Woman Be More Like a Man?

Or rather, per the New York Times, why are we lucky enough that they aren't? To date, at least, female politicians have lagged in the competition for the most humiliating sex scandals. Are women who get their hands on the levers of power somehow naturally less reckless? Are they still so sensitive to the double standard that they police themselves more rigorously? Are they naturally less inclined to cheat, particularly in a way that will make them look utterly ridiculous?

The NYT tosses out several theories: Women are too busy doing a man's job and their own work to boot. Women run for office to do something, while men want to be somebody. Powerful men are sexual catnip to women, but powerful women do not enjoy the same effect on men. Are these patterns likely to change with the changing social mores? Will the future bring us more Paris Hiltons in office?

Rules for a Gunfight

Rules for a Gunfight

Home Prices in Gold

Home Prices in Gold

From Business Insider: