Mark D. White

Writer, editor, teacher

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about

I’m a professor in the Department of Philosophy at the College of Staten Island/CUNY, where I teach courses in philosophy, economics, and law, and the author/editor/co-editor of several books.

  • A new semester begins while new projects get underway…

    It's been a pretty good January–not as productive as I'd hoped, but I'm getting there. That's good, because the spring semester starts today (though my classes don't start until Monday), and writing once again needs to be slotted in alongside teaching and chairing. Personnel issues are nowhere near as intense in the spring as in the fall, which is a relief, but we have no full-time office staff for the first month of the semester, which will be a test for all of us.

    In terms of writing, after far too much hemming and hawing, I finished my short paper on Kantian ethics-and-economics and corporate social responsibility (which I presented in Chicago) and submitted it to a journal. I also started background reading for a paper taking a Kantian approach to altruism in the family, which needs to be submitted to a special issue of a journal by April. My efforts have been more oriented toward books and book chapters of late, but I think I should try to get in the journals regularly too (although journal article writing feels very alien to me now).

    In terms of books, there's been modest advancement since I returned from the conference, full of vim and vigor. I finished one proposal for a co-edited book and sent it to the publisher (and am eagerly awaiting word), clarified a few things with my Stanford editor regarding the two books we have planned, and should hear something on my paternalism book very soon. I need to start the proposal for the next book I'll edit for my Palgrave series, but I think that can wait a little bit, especially considering the next item.

    DaWhile work on Superman and Philosophy continues (albeit slowly), I received an opportunity too good to pass up: to develop a unique project for Wiley based on Downton Abbey. As a longtime fan of British costume drama (Merchant Ivory movies, film and TV adaptations of Jane Austen books, etc.), I jumped at this–I should have more to say about it before long (because Wiley wants it done before long!), but it will dominate my writing/editing time for a little bit. And last night I cranked the foolishness up to 11 and suggested a similar project based around a prominent figure in an upcoming movie–again, hopefully I'll be able to say more soon. (And we mustn't forget the chapter I'm writing for series editor Bill Irwin's Black Sabbath and Philosophy book, which is a dream come true for both of us.)

    What can I say–I love the rush of all this work. Take that as you will!

    Finally, I had a few new things up online in the last month:

  • Adventures in jurisprudence: The new Kaiser poll on Obamacare

    Mark D. White

    Classes start for me on Monday (though our spring semester starts today–that's right, on a Friday), and my first class will be one of my favorites to teach. legal philosophy. And luckily for me (and for my students), I was given the perfect news item to start the class and motivate our discussion.

    The International Business Times reported yesterday on a new Kaiser Health Tracking Poll on the Affordable Care Act (aka Obamacare). Of course, there is much confusion regarding the contents and legality of the ACA, but there seems to be just as much confusion regarding the nature of judicial decision-making.

    Kaiser pieKaiser reported that 59% of those polled believed that the Supreme Court justices will let their “own ideological views influence their decision” on the ACA, and 28% said the justices will “base their decision on legal analysis without regard to ideology or politics.” The rest were undecided or refused to answer—perhaps because they realized neither choice was adequate. The justices not only will but must use ideology to make their individual decisions, but it will be ideology in the sense of a reflective legal and political philosophy developed over years of study and experience, not their own personal political preferences.

    The hearings over the ACA, particularly regarding the individual mandate, will surely prove to be the most important legal case of the decade, if not longer. It is what scholars of judicial decision-making call a “hard case,” one which cannot be settled decisively by what is written in the Constitution and statutes or embodied in over two hundred years of judicial precedents. In such cases, the cynic would say that judges make new law out of thin air by indulging their personal political preferences. But we need not resort to this, when there is a better answer that both explains differences of opinion while retaining a strong sense of civic duty and impartiality among judges.

    As legal philosopher Ronald Dworkin wrote, judges decide hard cases by interpreting the existing legal materials (the Constitution, statutes, and previous decisions) and arriving at the answer that best maintains the integrity of the legal system. The question then becomes not whether they interpret the law but how. This is where ideology enters the process, but not in terms of personal politics. In making hard decisions, each judge interprets the law against a legal and political philosophy that he or she feels best fits the historical materials.

    It is not a matter of whether each justice supports or opposes the ACA, but whether he or she believes the ACA is consistent with their view of the  legal and political history of the United States of America. Understood this way, ideology does play an integral role in judicial decision-making, but it is a principled ideology based on a careful reading of law and history, not on a judge’s own predilections regarding the case at hand.

    This is a subtle distinction, to be sure, and one that leads to tremendous confusion. Legal scholars and ordinary citizens alike are much too eager to say that judges vote their politics, whether liberal or conservative—especially when the judge is on the “other side on the aisle” from the critic. But this shows  a regrettable degree of bad faith. It is just as easy to say that each judge votes according to the principles for which he or she thinks—after years of study, reflection, and experience—that the United States stands. Will the resulting positions correspond to their personal political beliefs? Of course they will, but that doesn’t imply they are voting based on their personal politics, but rather that their personal politics are based on the same careful analysis that informs their judicial decision-making.

    Will “liberal” judges likely vote in support of the ACA? Yes, but not because they support the president and his party; they will vote for it because their vision of this country is one in which the government plays an active role in ensuring the well-being of its citizens (whether the ACA will actually achieve that or not). Will “conservative” judges likely vote in opposition to the ACA? Yes, but not because they oppose the president and his party; they will vote against it because their vision of this country is one in which the government interferes in its citizens’ lives only to prevent harm (whatever their conception of harm may be).

    Judging from the many arguments I’ve heard and opinion pieces I’ve read over the last several years, I believe this is how most people outside Washington think about the Affordable Care Act and the individual mandate: in terms of principle rather than politics. Why, then, is it so hard for them to believe that the justices of the Supreme Court think in the same way?

  • The Currency of Justice and Freedom?

    Mark D. White

    OmalleyWhen economists debate the neutality of money, they are concerned with its effects on real output and growth. But other scholars, such as philosophers and sociologists, consider the social neutrality of money–that is, whether the pervasive use of money in society has a qualitative effect on the way we think about both market and nonmarket transactions.

    A particularly fascinating element of this discussion deals with money's role in the legal system, such as in tort damages, contract remedies and criminal fines. The reliance on monetary compensation is rarely questioned in tort or contract cases, and law-and-economics scholars in particular favor the use of fines over imprisonment in most cases because of the trivial resource costs and deadweight losses. But they also recognize that imposing fines for many crimes, such as violent crimes, is inappropriate and unjust.

    In his 2009 book The Currency of Justice: Fines and Damages in Consumer Societies, Pat O'Malley critically examines this neglected aspect of the legal system:

    Fines and monetary damages account for the majority of legal sanctions across the whole spectrum of legal governance. Money is, in key respects, the primary tool law has to achieve compliance. Yet money has largely been ignored by social analyses of law, and especially by social theory.

    The Currency of Justice examines the differing rationalities, aims and assumptions built into money’s deployment in diverse legal fields and sanctions. This raises major questions about the extent to which money appears as an abstract universal or whether it takes on more particular meanings when deployed in various areas of law. Indeed, money may be unique in that it can take on the meanings of punishment, compensation, denunciation or regulation.

    The Currency of Justice examines the implications of the ‘monetization of justice’ as life is increasingly regulated through this single medium. Money not only links diverse domains of law; it also links legal sanctions to other monetary techniques which govern everyday life. Like these, the concern with monetary sanctions is not who pays, but that money is paid. Money is perhaps the only form of legal sanction where the burden need not be borne by the wrongdoer. In this respect, this book explores the view that contemporary governance is less concerned with disciplining individuals and more concerned with regulating distributions and flows of behaviours and the harms and costs linked with these.

    I admit I was made aware of this book only by a mini-symposium in the latest issue of Social & Legal Studies (20/4, December 2011) titled "The Currency of Freedom," in which three scholars from different areas of the law discuss O'Malley's book, offering unique and opposing viewpoints. From David Campbell's introduction:

    In The Currency of Justice which appeared in 2009, Pat O’Malley made a number of extremely interesting observations about the effect of the institution of money as a form of governance on the legal and social systems of the advanced capitalist societies. By making possible the use of damages in civil law and fines in criminal law, money has had a profound impact on the form and substance of tort, contract and criminal law, the nature of which is insufficiently understood or even researched, O’Malley’s own previous work notwithstanding. Though he discusses many of the criticisms of money’s effect on the legal and social systems, and these are further discussed in the course of this Dialogue and Debate, in my own view the particular importance of O’Malley’s argument is that it calls into question the essentially negative evaluation which left-wing social and legal thought places on money. In a passage which is quoted in my contribution, O’Malley says:

    Perhaps monetisation, the saturation of life by money, is after all not antithetical to the valuation of individual uniqueness and its high estimation. Maybe money is a medium through which new forms of liberalism, new forms of freedom, simultaneously constitute meaning and are constituted by it. (O’Malley, 2009: 15)

    In this Dialogue and Debate, comments on the implications of The Currency of Justice for our understanding of tort (Jenny Steele), contract (myself) and criminal law (David McCallum) are followed by a response by O’Malley. A synopsis of the argument of The Currency of Justice is given at the beginning of this response.

    The individual papers in the symposium are:

  • An idea for DC’s new Earth 2: Why not the pre-Flashpoint Earth?

    JsaRather than update my last post on Earth 2 and Worlds' Finest yet again, Vaneta Rogers' latest Newsarama interview with Paul Levitz gives lots of new information and sets up some interesting possibilities that deserved a whole new post. (Good thing they're free.)

    First, the news from the interview (which is very good, no surprise from Ms. Rogers and Mr. Levitz): The Huntress in Worlds' Finest is in fact the same as in the current mini (drawn by Marcus To), and Helena Bertinelli is simply one of several aliases she uses. She is actually the Helena Wayne of Earth 2, daughter of that Earth's Bruce Wayne and Selina Kyle. And Power Girl is the Karen Starr we've seen in Mister Terrific. And both books take place on the New 52 Earth, but the Huntress and Power Girl were somehow stranded here from Earth 2, with the "how" being explained in James Robinson and Nicola Scott's Earth 2.

    Wow.

    SB27So it seems that this Earth 2 may be similar to the "retro" Earth 2 shown in JSA following Infinite Crisis to which New Earth Power Girl found herself transported, with a combination of the pre-Crisis on Infinite Earths JSA and Infinity, Inc. (And which was drawn by Jerry Ordway, no less–quite a treat for fans of the 1980s Earth 2 books, such as me.) That also makes Worlds' Finest similar to Superman/Batman #27, which featured an adventure with the Earth 2 versions of Power Girl and Huntress "back in the day," after Infinite Crisis brought them back into continuity. And apparently there is going to be an "older" Batman (and Superman) on the new Earth 2, which got me thinking…

    Why couldn't they make the new Earth 2 the pre-Flashpoint Earth? After all, the original Earth 2 was where DC shunted the Golden Age heroes to make room for the Silver Age revamps, so why not do the same with the pre-Flashpoint and post-Flashpoint worlds? If the point of rebooting relaunching the DCU is to introduce "fresh" younger versions of the characters, why not put the pre-relaunch ones on a new Earth 2 and continue their stories–and letting them age "naturally" (or what passes for naturally in the comics)? If this aging were retroactively allowed, then the pre-Flashpoint versions of Bruce and Selina could have easily known each other long enough to have an adult daughter by now–which would involve a little tweaking of the pre-Flashpoint continuity, but it would be a drop in the bucket compared to what we see now.

    I doubt they would go this far (unfortunately), but I do suspect that when we see the new Earth 2 versions of Batman and Superman, they will look more like the Silver or Modern Age versions than the Golden Age ones; why go back to the very beginning of the DCU when newer fans will think that Superman and Batman with their "underwear on the outside" means the "old versions" anyway? In any case, the emphasis of the new Earth 2 will presumably be on the analogues of the original Earth 2 characters from the JSA and Infinity, Inc., with the possible addition of some of the newer JSAers added in the years leading up to Flashpoint, so we likely won't see any versions of the JLA or Teen Titans in any case.

    I'm tremendously gratified to see the renewed emphasis on the original concept of Earth 2 and its rich group of characters, but I do think DC is missing an opportunity to revive the pre-Flashpoint DCU in a way that can placate old readers while not disturbing plans to gain new ones. But they do have dozens of other worlds to play with… hey Mr. Morrison, can I speak to you for a minute?

  • Earth 2 and Worlds’ Finest bring the classics back to DC in May [UPDATED AGAIN!]

    According to a brand spanking new press release in USA Today, DC is launching six "new" titles in May, including the long-hinted JSA title Earth 2 (supposedly written by James Robinson and pencilled by Nicola Scott) and Worlds' Finest, which is said to feature Power Girl and Huntress. The article they both spotlight "alternate worlds," so we can presume that this Power Girl and Huntess are on Earth 2 (the post-52 version of it) and are not Karen Starr as seen in Mister Terrific and Helena Bertinelli as seen in Paul Levitz and Marcus To's current (and excellent) Huntress mini. (I wonder about the Huntress, though, since Paul Levitz created the original Huntress, daughter of the Earth 2 Batman and Catwoman. And are we sure Mister Terrific doesn't take place on Earth 2 already? Hmm…)

    UPDATE: A second article at USA Today gives more details on these two books:

    Writer James Robinson reteams with the Justice Society for the new series Earth 2, which is being drawn by Nicola Scott, while Huntress and Power Girl are stranded on our world and want to return to theirs in Worlds' Finest, written by Paul Levitz with art by George Perez and Kevin Maguire in rotating story arcs. "What does that mean to be exiles from that Earth 2?" Harras says. "We thought it'd be a nice thing to bring this concept back and to really, as we did with the 52 initially, reconceive it and freshen it up."

    UPDATE 2: This article just up at Newsarama confirms that the Huntress in Worlds' Finest is Helena Wayne, not Helena Bertinelli.

    Of course, it is far too early to tell if (or, more likely, when) the residents of Earth 2 will meet the rest of the DCnU. (Note all that Worlds' is plural; I wonder if this will be an anthology title featuring other alternate universes as well, perhaps after Grant Morrison gets "done" with the multiverse.) I hope these books will restart to restore the sense of legacy that the traditional DCU possessed since the first Crisis collapsed the original multiverse and put the JSA and JLA on the same world (and earlier, given the frequent crossovers between Earth 1 and Earth 2). I don't mind the essential concept of superheroes being explored in a reinvented world that is meeting them for the first time–that has marvelous story possibilities–but at the same time I am partial to younger generations learning from these elders.

    And I dream of seeing DCnU Superman get schooled by the older, wiser Earth 2 Superman–if Kal-L was upset in Infinite Crisis, wait til he sees the DCU now!

  • My 2012 ASSA experience: reinvigorated at last!

    ChicagoWell, another Allied Social Sciences Association (ASSA) conference has come and gone. This was definitely one of my more hectic conference experiences, but that comes from someone who normally takes these things very easy; I'm sure (in fact, I know) many people have much more intense conferences on a regular basis. (I don't know how they do it, honestly.) 

    Here's a snapshot of my weekend in the Windy City:

    • Thursday night I enjoyed a walking tour and Vietnamese lunch with a great Chicago friend, who also joined me for the opening plenary and reception for the Association for Social Economics (ASE).
    • Friday I gave a presentation on Kant and corporate social responsibility at an 8:00 session, a presentation on Kantian judgment and virtue theory at a 12:30 session, chaired a session on the state of Chicago School economics after the downturn at 2:30, an ASE membership meeting from 4:45 until 7:00 (at which I was pronounced–rather, anointed!–vice president), and then dinner with my good friend, ASE president-elect, and Economics and Ethics co-blogger Jonathan Wight. Whew!
    • Saturday started with the ASE presidential breakfast at 7:45, followed by a meeting with my new editor at Palgrave at 11:00 to discuss my Perspectives from Social Economics series (and my next book in it), and then a meeting of the new editorial board for the Forum for Social Economics (one of the ASE journals) and its new publisher Taylor & Francis. And then I finally got to Jazz Record Mart (usually my first stop in Chicago!), After Words (a used book store), and a great Thai dinner–all on the same block!
    • Sunday began fantastically (after writing a new Psychology Today post) with a breakfast meeting with my Stanford editor (and good friend), during which one book project mysteriously became two; then a quick meeting with an editor (the editor, I should say) at Oxford to pitch an edited volume (in which he was very interested); followed by lunch with an old friend (also, incidentally, an editor); and one final meeting with an editor from Routledge.

    I'm very happy to say these meetings have reinvigorated me. I realize it should be enough to be excited myself about what I'm doing, but it really helps to hear that other people are excited about it (and supportive of it) as well. The reception of my two presentations was very good, and all my proposals for book projects were encouraged by their respective editors. Of course, the real work remains to be done–and that's the point at which I normally lose motivation–but I think I can carry this newfound excitement into the work process itself.

  • Prawfsblawg’s Dan Markel on law blogging (or blawging, if you will)

    Mark D. White

    There seems to be a bit of discussion in the air about acacdemic blogging lately (and not just at the wonderful dinner I shared with Jonathan Wight last night at the ASSA conference!). In addition to the pieces I highlighted several days ago, I just found this post by my friend Dan Markel over at the always-interesting Prawfsblawg, titled "Why I Blog (as a Law Professor)." As Andrea Doucet did, Dan mentions the appeal and challenges of blogging vis-à-vis academic writing, and as is his wont, he casts blogging in the frame of civic responsibility:

    Time, imprecision, and frustration are sometimes the costs of trying to make a piece of scholarship accessible to non-specialists. Still, that effort is often worth it, especially at Prawfs, where we have made efforts to ensure a relatively congenial community of commenters. After all, one of the best things about blogging as a medium is that it enables you to find new readers and interlocutors for your work and ideas. And as writers, you win your readers one by one by one. This point about community building seems especially salient in light of the fact that law professors live a largely monastic existence in their offices. Blogging helps as an antidote to that vocational loneliness. Finally, I think we are obligated to make some efforts to get our ideas out there. As scholars, we spend years trying to generate intellectual capital. We are paid to do so by virtue of the generosity of public legislatures and private tuition and donations. Accordingly, I think we owe our benefactors our efforts to disseminate our hard work beyond the typical and sometimes closed channels of distribution that we often rely upon.

  • On academic (and specifically economic) blogging

    Mark D. White

    I've been meaning to mention the first piece for a while, but when I saw the second piece today I decided to pair them up. First is an article from last week's The Economist regarding the importance of the blogosphere in criticizing mainstream economics from the viewpoint of heterodox scholars, in light of the current economic crisis. The second is a piece from yesterday's Chronicle by Andrea Doucet on the relationship between blogging and traditional scholarship in general; I especially appreciated her focus on the different styles of writing, reading, and thinking required by each.

  • Kant and copyright: Public sphere vs public domain

    Mark D. White

    Anne Barron (LSE, Department of Law) has an interesting paper in the latest issue of Law and Philosophy (31/1, January 2012) exploring a Kantian approach to copyright law:

    Kant, Copyright and Communicative Freedom

    Abstract: The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.

  • The first full day of 40…

    Yes, I turned 40 yesterday; I had a nice day in Manhattan with one of my best friends, walking and talking, drinking espresso and eating Ukrainian goulash, pierogi, and blintzes. And life goes on…

    I wrote a couple things to commemorate the occasion: a light-hearted post at Psychology Today, "What's in a Number? Pondering the 'Big' Birthdays," and a more serious, comtemplative piece at the Good Men Project, "After 40 Years, What Now?" The latter explains why I haven't had much to post about here, though I hope for more in the next year. I have lots of ideas which have common threads which need teasing out; I think that once I get my mind around the connections, writing the pieces will come much easier. Also looking forward to meeting with editors at the ASSA meetings in Chicago to discuss book ideas; outside encouragement is always nice, though it doesn't get the books written.

    The last month was consumed, in part, by end-of-semester goings on at school and (of course) the holidays, as well as the "existential angst" detailed in the Good Men Project piece (with help from Leo Tolstoy). I did, however, get two (other) new pieces up at Psychology Today last week, "Is Being 'Half a Partner' to Somebody Enough?" and "If, When—and How—to End an 'OK-But-Not-Great' Relationship." I also completed the review of proofs for The Avengers and Philosophy: Earth's Mightiest Thinkers, and I may have found a home for the book project arguing against "libertarian paternalism" that I had shopped around earlier this year–more on that if and when it comes to fruition.