I am enrolled in a course entitled Thinking About Taboo Subjects:

This course will consider how to think, write and speak about issues that tend to be taboo on university campuses. These include gender, racial, ethnic, cultural and religious differences; rape and child molestation, torture; eugenics; abortion; capital punishment; race specific affirmative action; misuses of the holocaust and holocaust denial; colonialism; cultural relativity; religious sensitivities; and other subjects to be directed by the class. The object of the class will be to consider how to do scholarship on such subjects. Experts and advocates will appear periodically as guests.

The reading this week includes an article entitled “Thinking the unthinkable, sacred values and taboo cognitions”. In essentally says that we have sacred values – such as family and loyalty, and secular values, such as money, entertainment, etc. One forced to make a trade-off between two sacred values (a tragic trade-off) is judged far less harshly than those who deliberate for a long time when deciding between a secular and a sacred value (a taboo trade-off) So, for example, a hospital administrator who ponders over saving a boy’s life to save his hospital $1M is causes moral outrage, while people look more sympathetically at the administrator forced to decide between two boys. It matters not that the money could save lives, the immediate two values cannot be mismatched and still be acceptable.

This reminded me of a the outrage that some people have over some people choosing not to have children, and even over those who weigh out the pros and cons of parenting.

Indeed, one who makes a decision between so-called “selfish” values and childbearing might be inclined not to have children. A while back I posted an article on my childfree news blog; a statistical study had found that parents are more depressed than those without children.

‘‘We believe the costs associated with the role overshadow those benefits,’’ said Robin Simon, co-author of the study published in December in the journal published by the American Sociological Association. ‘‘We romanticize parenthood. It’s difficult and it is expensive.’’

This is in addition to findings that parents die sooner, eat more, and earn less, have smaller brains (during pregnancy) have less money. Add to that the fact that the above was just the latest in a long line of studies showing that the childless are happier [1] [2] [3] , and the childless may indeed feel quite smug about the superiority of their choice. Parents are quick to respond, horrified that concerns over happiness [4] and money should ever enter into the equation. Indeed, we have elevated the question of parenting to sacred status such that questioning whether it is “worth it” is taboo.

Quite illustrative is the fury sparked by the article Kids: Bad investments, big returns. As is made obvious by the title, the ultimate conclusion is that it is still “worth it” for many people because “it’s like an ongoing, lifelong investment in happiness,” and humans are not “economic creatures.” Of course, this is necessary way to wrap up an article that could otherwise be offensive to many, and its very conclusion is belied by the many studies that show children do not make people happier.

And yet the taboo is so strong, even this treacly, lets-all-have-kids article provoked a number of harsh responses. The readers stated that the author did not deserve to have kids because “I cannot believe in this day and age that people actually sit down and figure how much it’s going to cost them to have a family.” But even while readers stated “If you need to do a cost-benefit analysis on having children, then you shouldn’t be having them” they missed the irony of their own cost-benefit calculations. One states that her “13-year-old son who has given me endless hours of joy and is a constant source of pride”, another that in twenty years “I will be receiving kisses from my future grandchildren, which my dear, are priceless.”

To be fair, a few do seem to criticize cost-benefit analysis without this hypocritical bent. But they are in the minority; most extoll the rewards of parenting in the same breath. And it may well be that a ‘happiness’ cost-benefit calculus is somehow less offensive than a monetary one. After all, no sacred value is being traded in for it, at least according to most assumptions.

People who spend money on plasma TVs and gambling are all buying their own kind of enjoyment; indeed one would imagine that those who would like to save money by not having children are spending it instead on other things that make them happy. If that is the case, are we judging not the calculus itself but what makes you happy? Is someone who is made happy by traveling “bad” and someone made happy by their children “good”? Is someone who is made happy by children as a “status enhancing social resource,” somehow superior to someone who is made happy by her three dogs rescued from a pound? Is why children make you happy, or the kind of alternative you choose then dispositive, and if so, are these judges on the right track, but oversimplifying the choices people make?

The argument must depend, then, on the establishment of the choice to have children as a sacred value. Is this assigning the status of potential family such weight? Is it because it is seen as biological destiny? It could well be that childfreedom is not seen as a negative choice – to not choose to do something, but instead as a positive step to prevent something that would otherwise naturally occur. Without these perspectives, it would be difficult to see why the choice not to work in a soup kitchen or adopt a homeless pet would be given such comparable deference. Assuming for the sake of this argument that having children is always a positive good for the world, the choice not to have them is only one of many positive steps that people avoid every day, without criticism.

The taboo must lie in seeing childrearing as an obligation each and every one of us has, and the choice not to have them as shunning potential family. Only then can we explain why the readers reacted with such furor over the mere deliberation in the author’s choice.

Warning – Admin tirade, boring to anyone not taking it. OK, and to most who are.
The question today was whether we prefer the formalism of Brennan’s dissent in Commodity Futures Trading Commission v. Schor or the pragmatism of O’Conner’s majority opinion. It was posed by Dean Kagan (who is obviously my instructor) on the second week of class, so of course my hesitation cost me the opportunity to launch this tirade in class. Another student presented an idea so closely related my own would have seemed redundant. But it was not, so here goes.

Neither. There is a need for adherence to bright-line rules in congressional delegation of judicial functions to administrative agencies. There is a very real risk that massive delegation will erode the jurisdiction of the Article III courts, and without A3 protection, there is a lessening of the judicial independence so carefully crafted into lifetime tenure (and the related prohibition on salary reduction)

But I do disagree with where Brennan draws that line. He would (ignoring the possibility that the original claim is a private right as well) prevent ancillary jurisdiction over related common law claims within administrative agencies. Yet in the case at hand, the parties retain their right to litigate in an Article III court – they waived it when they dismissed their circuit court action and brought it within the CFTA.

Whatever formalistic rules are needed to preserve judicial independence, they are not implicated by voluntary submission of cases to an administrative agency.

The free market model might apply here. If administrative agencies do lose their independence, and if this impacts their ability to fairly resolve a case, parties will simply not consent to their jurisdiction. Not only is the appellate review procedure a guarantee against arbitrary or unfair decisions, but this choice as well will force administrative agencies to retain the independent, fair, and consistent standards we are trying to ensure. We are instilling a competition model into a system where the courts themselves are grateful for it, since (as the O’Conner functionalist perspective points out) they are not equipped to litigate the sheer number of cases generated by statutory-enacted rights.

Oddly enough, this approach is dismissed even by the court opinion, which insists that the institutional concerns make waiver of the parties not determinative. This would be true if the structure encouraged courts to dismiss cases pending in a parallel proceeding within an agency, or if somehow non-consenting parties could end up in agency litigation. But it is not implicated by the scheme I advocate – in which such choice is a mandatory part of any scheme. While a pragmatic approach may counsel against allowing parties to litigate where they choose, allowing mandatory litigation of certain public rights, statutory claims would effectively ensure the efficacy, since most parties would indeed consent – they would otherwise bear the costs of two litigations. An agency structure which provided lower access fees would also serve the pragmatic function of preventing clogging the courts. (Of course this only works if the fees charged in courts are fair and properly waivable, otherwise there might be due process concerns that subject the poor to agency litigations by the circumstances, trouble if this structure undermines the improvements encouraged by the free market model.

We allow parties to submit their claims to arbitration, to mediation, to hammer out deals in conference rooms of law offices. They can litigate in state courts (sometimes without said consent) which do not have the mandatory life tenure, etc provisions either. Indeed, any remaining structural problem would lie only in the fact that the forum consented to here happens to be an administrative agency. This seems a slim basis on which to deny the parties the right to settle claims in an alternate forum.

This supports one suspicion – that O’Conner was more concerned with the rights of courts than she is the rights of citizens. This is further underscored by the mode of analysis which factors in the degree to which the legislature is trying to undermine the judiciary in determining the constitutionality of the delegation. Since the separation of powers principle that is being addressed has to do with the rights of citizens, any structural analysis should have that final end in sight. The way in which judiciary power is stripped is only a concern insofar as it will effect the rights of the people. Although Brennan is correct in that undermining an independent judiciary – when looking at the big picture – does have those effects, it is not quite as automatic as the court’s opinion suggests.
So yes, keep the big picture in sight – establish principals that prevents the whittling down of the jurisdiction of Article III courts by focusing only on the immediate goal of expediency. But the wisdom of formalism doesn’t end when you establish that there should be a bright-line rule, it lies in where you place them. Brennan’s dissent gives short shrift to constructing a rule as narrow as necessary to protect litigants from the majoritarian control and lack of independence that Article III was so carefully constructed to avoid.

Furthermore, even if they do have a view of the statute or actions that might imply intent, why are they going after two artists and not Turner Broadcasting?  If the intent behind the items was to cause fear, then why would those who placed the items, for pay, have any less intent then those who hired them to do so?  The statute’s language, by including anyone who “causes another to knowingly or unknowingly possess, transport, use or place” would seem to include these parties as well.  Is it that the prosecution does not want to face the BigLaw attorneys that Turner would hire; that such attorneys would not only get the case dismissed as to all parties, but might even retaliate with a malicious prosecution lawsuit in civil court?  They have already stated publicly that jurisdiction is not an issue, and that they intend to file a civil suit against Turner.