Tag: individualism

Individualism in Legal Process and the Wal-Mart Case

Monday’s high court decision in Wal-Mart v. Dukes has predictably drawn a strong reaction from legal academia, much of it critical of the Court. Of particular interest are the comments of Richard Primus (Michigan) at the New York Times’s “Room for Debate” and Alexandra Lahav (Connecticut) at Mass Tort Litigation Blog. According to Primus and Lahav, the decision is the latest sign that the current Supreme Court leans toward a principle of “individualism” in applying the rules of civil litigation. Lahav in particular appears to view this as a shame, since “a more collectivist view” would carry with it more “potential for social reform.”

What does a term like “individualism” mean in the context of litigation procedure? One of its implications is that legal rights to redress on the one hand, and legal responsibility or culpability on the other, are ordinarily things that appertain to individual litigants, and ought not (absent clear authorization by statute or Constitution) be submerged into group claims on the one hand or group guilt on the other. In particular, we should be wary of proposals to deprive litigants of the choice to obtain individualized consideration of their claims or defenses on the grounds that society can accomplish more if it processes litigation in batches while accepting, say, statistical as distinct from personalized proofs.

Lahav and other scholars such as Samuel Issacharoff offer as examples numerous cases in which the Court has insisted on individualized process, often thereby frustrating the advocates of social reform in one or another area. The Court’s scruples on this matter have run into much adverse comment in the academic literature, and that’s hardly a surprise; as I argue in my book Schools for Misrule, today’s legal academy is far more keen on things like group rights and social engineering (as some of us might call it) than is the wider society.

Let me offer a few observations in defense or at least explanation of the Court’s approach:

1) The individualist leaning is by no means confined to the “conservative” justices; all nine members of the current Court partake of it to varying extents, and it is one major reason why the Court’s liberal justices joined in to make the Wal-Mart decision unanimous on one of its most practically significant issues, relating to the handling of claims for back pay.

2) Like so many other aspects of the Court’s work, this one does not fit well into simplistic accounts from some quarters about the Court’s supposed “pro-business” stance. In many circumstances business defendants actually prefer some degree of collectivization of claims, because their main practical concern is to put an end to litigation, and group resolution can do that. In the Court’s landmark 1997 Amchem Products v. Windsor decision, six of eight voting justices (Breyer and Stevens dissenting in part) struck down a giant batch settlement of asbestos litigation that had been ardently pursued by many of the nation’s biggest businesses, as well as many plaintiff advocates, on the grounds that it improperly denied claimants their right to individualized justice.

3) If the question is one of faithfulness to the constitutional vision of law held by the Founders, there really isn’t much of a question: like other Anglo-Americans of Blackstone’s era those Founders saw the courts as dispensers of individualized justice if they were to be anything at all. Much else in American law has changed beyond recognition in the intervening two-plus centuries. Fortunately, as the result in Wal-Mart v. Dukes suggests, that hasn’t.

For more commentary on the Wal-Mart case, check out (e.g.) editorials at the Washington Post, New York Daily News and Omaha World Herald (favoring the court’s view), and the <a href=”New York Times and USA Today (opposing), as well as my contributions in the Philadelphia Inquirer and at Overlawyered.

Herman Cain and Individualism

Many political pundits have dismissed presidential hopeful Herman Cain as a long shot. However, coinciding with a Washington Post exclusive of the recently announced presidential candidate, a new IBOPE Zogby Interactive Poll shows Herman Cain, businessman and radio talk show host, edging out other leading GOP presidential candidates among Republican primary voters. Cain garnered 19% of vote, the plurality response, finally surpassing Governor Chris Christie who received 16% of the vote. A new Gallup poll shows Herman Cain with the leading Positive Intensity Score among potential GOP contenders at 25%, among those who recognize him. His name recognition has jumped from 21% in March to 37% in May.

Cain began receiving substantial media attention due to his popularity with the Tea Party; he recently won a Tea Party Patriots convention straw poll and has garnered 25% of voters most likely to vote for the Tea Party presidential candidate, with Chris Christie at 18%. In addition, GOP pollster Frank Luntz found Cain to be the winner of the first Republican presidential debate in the FOX News-sponsored focus group.

Cain’s recent popularity has brought to the forefront controversial statements he made earlier this year starting with an interview discussing the role of Muslims in American Society with ChristianityToday. ThinkProgress followed up with Cain during the Conservative Principles Conference in Des Moines, IA, asking him whether he would be comfortable appointing a Muslim to his Cabinet or as a federal judge. Herman Cain responded that he would not:

CAIN: No, I will not. And here’s why. There is this creeping attempt, there is this attempt to gradually ease Sharia law and the Muslim faith into our government. It does not belong in our government. This is what happened in Europe. … and now they’ve got a social problem that they don’t know what to do with hardly….I get upset when the Muslims in this country, some of them, try to force their Sharia law onto the rest of us.

In a subsequent Fox interview, Cain clarified his statement:

CAIN: …I did say no. And here’s why…I would have to have people totally committed to the Declaration of Independence and the Constitution of this United States, and many of the Muslims … are not totally dedicated to this country or our Constitution and many of them are trying to force Sharia law on the people of this country. …I don’t have time to be watching someone in my administration if they are not totally committed to the Declaration and the Constitution of the United States and the laws of this country.

Cain’s blanket condemnation of Muslims as generally unpatriotic is troubling. For starters, Cain’s view of Islam as a disqualification for public office runs contrary to the very Constitution that he claims to cherish: “no religious test shall ever be required as a qualification to any office or public trust under the United States.” (Constitution Article VI)

Second, Cain’s public statement of his prejudice—and the fact that such a statement is not widely condemned by both sides of the political spectrum—perpetuates stereotypes, increases religious tension, and contradicts the notions of freedom and individualism upon which this country was founded. People are more than the religion they profess. Individuals are a complex combination of environmental factors, choices, personal experiences, will, and culture. Prejudice such as Cain’s emphasizes the group over the individual. In a prejudiced society, individuals are not held accountable for their own actions, but instead are responsible for the actions of other members of the group with which they are identified—irrespective of the fact that these actions are entirely out of their control.

Individuals pursue their ambitions with hopes of happiness and success. Individuals face the costs and benefits of their decisions, and individuals take risks and reap the losses or rewards of those risks. Individualism unlocks an engine of innovation and prosperity, as people—as individuals—are incentivized and motivated to seek out new ventures. Collectivism in all its forms—from communism to racism—is antithetical to individualism and supplants an individual’s drive to better herself with a sense of hopelessness, since her opportunities are not determined by her own merits, but her group identity.

Cain’s remarks about Muslims are a regrettable perpetuation of religious stereotypes and an affront to the founding principles of this country. Such a worldview runs counter to the conditions under which opportunity and prosperity may flourish. Cain should have known better. More importantly, none of Cain’s Tea Party supporters—if they truly understand the principles behind the Declaration of Independence and the Constitution—should support such statements.

Communitarians and Libertarians

Communitarian “guru” Amitai Etzioni debated Roger Pilon at Cato two weeks ago. Also me, 18 years ago. And last week he had two postings at the Encyclopedia Britannica blog. I offer some thoughts on individualism, communitarianism, and implausible misrepresentations of libertarianism at the Britannica today.

When I hear communitarians like Etzioni describe the libertarian view of individualism, I wonder if they’ve ever read any libertarian writing other than a Classic Comics edition of Ayn Rand….

There’s no conflict between individualism and community. There’s a conflict between voluntary association and coerced association. And communitarians dance around that conflict.

Do you believe that “The libertarian perspective, put succinctly, begins with the assumption that individual agents are fully formed and their value preferences are in place prior to and outside of any society”? Of course not. Who would? Read the Britannica column to find out who says you do.

Wednesday Links

Reagan’s Libertarian Spirit

At the Britannica Blog I take a look back at Ronald Reagan on the occasion of his impending 100th birthday (February 6):

Libertarians have mixed feelings toward Ronald Reagan. When we’re feeling positive, we remember that he used to say, “Libertarianism is the heart and soul of conservatism.”

Other times, we call to mind his military interventionism, his encouragement of the then-new religious right (“I know you can’t endorse me, but I endorse you.”), and his failure to really reduce the size of government. But the more experience we have with later presidents, the better Reagan looks in retrospect….

And in those moments we’re tempted to paraphrase the theme song of All in the Family and say, “Mister, we could use a man like Ronald Reagan again.”

Bonus: The entry contains links to Encyclopedia Britannica entries on such topics as libertarianism and individualism, normally available only to subscribers. More Britannica reflections on Reagan here. Some other Cato thoughts on Reagan here.

Mao’s Last Dancer

The movie “Mao’s Last Dancer” is a sleeper hit, says the Los Angeles Times:

It features no big-name stars, drew mediocre reviews and traffics in the esoterica of Chinese ballet.

And yet “Mao’s Last Dancer,” the true story of a ballet performer who defected to the United States in 1981, has become one of the season’s biggest art-house hits.

Bruce Beresford’s Australian-produced film tells of Li Cunxin, an 11-year-old Chinese boy plucked from his rural village in 1972 under the reign of Mao Zedong to dance for the Beijing Ballet. While in residence at the Houston Ballet a decade later, he defected to the United States after a politically charged standoff that involved the FBI and diplomats from China and the U.S.

It’s been in theaters for three months, and I finally saw it this weekend. You can’t usually wait that long to see an indie film, but this one’s been hanging on under the radar. It’s a great story about Chinese communism, politically controlled art, and one individual who chooses freedom. In a climactic scene, the Chinese consul tells Li “the Party knows what’s best for you” and Li responds, “I know what’s best for me.” (The language is a little different in Li’s autobiography.)

The New York Times dismisses the movie as “nothing more than an old-fashioned tear-jerker,” complaining that it is

stuck in an earlier era of heavy-handed clichés about Chinese innocence and American experience. The juxtaposition of wide-eyed villagers and labored aphorisms with shopping malls and casual sex may accurately reflect Mr. Li’s book, but on screen it feels absurdly outdated.

Um, yes. The movie is set between 1972 and 1981. That was Mao’s China, even the China of the Cultural Revolution and the Gang of Four, and then the very earliest days of the liberalization under Deng Xiao-ping. Today it looks dated, as do most movies set 30 or more years in the past. Anyone who has visited China recently might not realize just how stunning the Houston skyline would have looked to Li in 1981. But I saw the Shanghai skyline seven years later, in 1988, and I know that Houston would have seemed a different world to Li at that time.

No doubt the Times reviewer also disliked the scenes in Chinese schools where students are told that China has the highest standard of living in the world, while the “capitalist and imperialist nations” live in unimaginable horror. And maybe the scene of Madame Mao visiting the Beijing ballet academy and demanding that the students perform only revolutionary ballet. But that was the reality of Maoist China.

I’ve written before about the remarkable dearth of anti-communist movies in Hollywood, especially when you consider that communism lasted far longer and killed far more people than national socialism, about which there have been many movies. Of course, this movie wasn’t produced in Hollywood; it was produced in Australia by the Australian director Bruce Beresford (“Breaker Morant,” “Tender Mercies,” “Driving Miss Daisy”). And “Mao’s Last Dancer” is as much a story of individualism and breaking out of a world that would hold you down (not unlike “Billy Elliott” or “October Sky”) as it is a political movie.

The fact that Li was allowed to visit the Houston Ballet temporarily in 1981 was a sign of the changes that were happening in China, and the country has made much more progress since then. But China is still not comfortable with this story, and the producers were forced to shoot some scenes in secret after being denied permission to film in China.

With Christmas movies coming, “Mao’s Last Dancer” won’t be in theaters much longer. See it now.