Wal-Mart v. Dukes: the Plessy v. Ferguson of Our Time

When the Supreme Court ruled that "separate but equal" facilities for persons of different race did not violate the rights of American citizens, Justice John Marshall Harlan dissented.  His reasoning was unassailable.  Coloreds born here were citizens.  Furthermore, the law allowed new immigrants from Africa to attain citizenship. Asians were not allowed to become citizens.  Yet, Chinese could ride in train cars with white people, while blacks were denied.  Not unusual in Louisiana, Homer Plessy was visibly white.  He had to assert his color in order to be arrested.  Seen from any perspective, the law was unjust.  The majority of the court did not agree.  History proved them wrong.  So, too, with Wal-Mart Stores, Inc. v. Dukes, et al., 564 U. S. No. 10–277 (2011).  Justice Ruth Bader Ginsburg wrote the dissent, with Justices Breyer, Sotomayor, and Kagan joining.

You owe it to yourself to read the Dissent.  The slip opinion is available here on the Supreme Court website as a PDF.

The errors of the majority are many and consequential.  Regarding the experts, the Court said:

"The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning-ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004)."

The plaintiffs had another expert witness.  Dr. Richard Drogin provided the maths.  His testimony was ignored in the majority opinion.  If any generalizations about men and women are real, it is generally true that women are more attentive to detail than men.  The Dissent picked up on Prof. Drogin's evidence.

"Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of discrimination.” Id., at 155–160.

You don't need a lot of statistics or regression analysis.  "Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks inthe organization the lower the percentage of women.”

I have a general rule that you can take the people on one side of the counter and switch them with the people on the other side and get the same results, not much worse, and probably better.  Birds of a feather flock together, no suprise in that.  So, Wal-Mart, Inc., reflects the society and culture of their sales areas: rural, small town, conservative, mainstream.... and a generation behind the rest of the nation. 

As noted in the previous post, in theory, Wal-Mart's discrimination against women should cause female employees with upward aspirations, to create competition or to take their talents to competitors.  This seems not to be the case.  Many factors come into play.  Opportunity is a matter of perception.  And, perceptions, aside, it must be attainable, rather than academically theoretical.  Wal-Mart profits from the disadvantages of its skilled employees.  Those profits, however, do not pour directly into a vault of bills and coins in which the heirs porpoise around like Scrooge McDuck.  Before that can happen, Wal-Mart customers must benefit from the advantage of skilled, interested, motivated, exceptional hourly employees who otherwise would be in management.  Wal-Mart customers get what they want, when they ask for it.  The shelves are stocked.  Check-out lanes move briskly.  It brings customers back, even as it costs the corporation in lost talent.

Wal-Mart v. Dukes

Sociologists are upset.  The American Sociological Association filed an amicus brief in the case of Wal-Mart versus Dukes to defend their study against claims that it is not scientific.  The case itself, and the ASA stance, both deserve the close and deep investigation which they will receive over time.

As a criminiologist, I consider myself a sociologist.  Crime could be considered a psychological problem or a medical condition or a form of economic engagement or a kind of political science.  Sociology encompasses all of those and more.  To me the defining space is that alone on his island, Robinson Crusoe's opportunities for crime are limited.  Crime is the sine qua non problem of every society.  Crimes begin as harms; and the plaintiffs in Wal-Mart v. Dukes claimed that they were harmed, and that under law, this was criminal.

The Wal-Mart employees obtained from sociologist William Bielby expert support for their claim that the corporate culture is discriminatory.  (Dr. Bielby served as president of the ASA in 2002-2003.)  Bielby's work was rejected by the Supreme Court of the United States.

Bielby’s testimony does nothing to advance respondents’ case. “[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 Bielby 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.” Supreme Court of the United States, Syllabus, WAL-MART STORES, INC. v. DUKES ET AL.  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 10–277. Argued March 29, 2011—Decided June 20, 2011 

The ruling by the Appeals court brought up the Daubert Standard, questioning whether the sociological investigation met that measure.  In fact, fhe Daubert Standard applies to non-scientific expert testimony, as well.  Whether or not sociology is a science, it is a recognized field of academic study, no less dependent on the development of expertise than are music, theater, or art.

Whether sociology as a science must follow the forms and methods of physics is a different question entirely.  The sociology of humor might be entirely descriptive and not statistically validated - even if there is nothing funny about this case - and still be science.

Restraining sociology to the same  practices as physics may be invalid on the grounds that humans are more complicated than billiard balls.  This applies to the law, well.  Justice depends on the "reasonable man" (person) finding fact.   Last night, I attended a presentation on contract negotiation sponsored by Ann Arbor SPARK our entrepreneurship incubator.  The first speaker offered common sense as your reliable guide to know whether or not contract terms are essential or tangential to the relationship. He did not have a statistically validated body of empirical evidence.  But he was, apparently, a recognized expert in the field of contract law, and his testimony on that would be admissible in court.

That a single sociologist cannot offer empirical evidence to support his claims does not remove sociology from the family of sciences.  It may say something about the sociologist or his theory.  Numbers are easy to find.  What is the male-female distribution in the population from which Wal-Mart draws its employees?  What is the gender distribution of Wal-Mart employees?  What is the gender distribution of Wal-Mart managers?  How likely is that outcome?    Do any other factors mitigate, as in professional sports, the raising of children, or among religious orders, obvious, structural gender biases.

If the distribution of employees by gender is not random, then discrimination may be in place.  Note, however, that "random" does not mean "evenly distributed."  The number pi is accepted as an infinite string of random numbers.  Yet, within it are curious runs of apparent patterns. They being apparent to us who make patterns does not invalidate their randomness.

The plaintiffs alleged, and the Supreme Court acknowledged, that at Wal-Mart promotion into management depends on subjective criteria, not objective standards.

Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management.  Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.

Measurable, objective performance standards are known in sports because every game has a score; and other player statistics are gathered, as well.  Yet, on any day, any team can beat any other (any solo can win over any opponent).  Building a team depends on more than getting players with good numbers. So, too, with much of life.  It may be true that in a completely anonymized world, 101 out of 201 people in any and every set will be males.  It may happen somewhere on Earth that 53 out of 53 in a business will be men.  I once worked a project with five other Michaels and a Michele.  What are the odds?

Wal-Mart v. Dukes may prove to be the Plessy v. Ferguson of our century: the dissenters - Ginsburg, Sotomayor, and Kagan - may win the day, eventually, in the history books.  If that happens, it will signal a deep change in society, not only in the USA, but globally.  One indication of that will be the loss of women with management skills to Wal-Mart's competitors.  

Junk Criminology as Pseudo-Science

Writing about the so-called "CSI Effect" Gregg Barack, Young Kim, and Donald Shelton focused on jurors.  Among the many challenging discoveries of their statistically valid investigation was the fact that less-educated people demand more physical evidence. The "CSI Effect" also runs strongly within professional criminal justice. 


Since the declaration of scientific criminology in the 19th century, police and prosecutors have sought out empirical evidence, relying on what were then new sciences such as  chemistry.  Cesare Lombroso claimed that scientific measurements could identify congenital  criminals. Dactylography (fingerprinting), graphology (handwriting analysis), polygraphs (lie detectors), and psychological profiling, were joined by laboratory analysis of fibers, hair, tissue, cloth, paper, ink, tire treads, shoe prints, typewriter keys, and just about everything else.

Sir Arthur Conan Doyle's Sherlock Holmes in the Strand Magazine became the public's model detective.  Not a mere rationalist Holmes's theories began with empirical evidence.  He studied cigar ashes. In his day, the electron was a theory.  Fifty years later high school students accepted it as basic knowledge.  Today, surgeons are guided by images created by positrons, the anti-matter analog of the electron.  Humans have been to the Moon; our cellphones depend on satellites.  We clone animals and  genetically modify vegetables.  It is not surprising that through this century, empirical evidence from the police laboratory is expected to reveal and convict perpetrators.  But not all science fiction becomes science fact. 

Shoe prints, tire prints, fiber analysis, hair analysis, handwriting analysis, and even fingerprints, all  lack scientific validation.  Scientific truths are statistically valid, large sample, peer-reviewed reports tested by double-blind experiments, explained by coherent theory for which there exists a standard of falsifiability.  The scientific method can be explained as three steps or 14, but it is always the creation and testing of a hypothesis by empirical methods.  A scientific truth is both rational (logically consistent) and empirical (known by perception).  


In the United States, the "Daubert Standard" amplifies and reinforces the Federal Rules of Evidence.  Flooded with expert witnesses in complicated civil and criminal cases, the courts needed a method for differentiating accomplished researchers in esoteric fields from charlatans.  It is bad enough that among the general public those who are less educated expect evidence that they are not equipped to evaluate.  The "CSI Effect" also runs strongly within the profession of criminal justice.  


 The "Criminology and Justice" blog (here) formed by European professionals centered on the Balearic Criminological Society has a recent series of "CSI" articles.  The latest touts the forensic efficacy of shoe prints.  Another is about the value of the forensic sketch artist.  It is true that a complete matrix of evidence can place the perpetrator with the victim at the time of the event.  It is also true that there exists no scientifically valid database of shoe prints; and police sketches of alleged assailants have been elements in wrongful convictions. These professional criminologists cannot differentiate rational-empirical methodology from pseudo-science.  And that is a crime.

The CSI Effect: A Bibliography
(Note that so far only the works of Shelton, Kim and Barack are statistically valid, applying appropriate mathematics to a large sample population.  Many other reports,  while informative, are largely anecdotal.)

• “The CSI effect reconsidered: is it moderated by need for cognition?” Dante E. Mancini, North American Journal of Psychology 13.1 (March 2011): p.155.
• “Examining the ‘CSI-effect’ in the cases of circumstantial evidence and eyewitness testimony: Multivariate and path analyses,” Young S. Kim,  Gregg Barak, Donald E. Shelton; Journal of Criminal Justice 37 (2009) 452–460
• “An Indirect-Effects Model of Mediated Adjudication: The CSI Myth, the Tech Effect, and Metropolitan Jurors' Expectations for Scientific Evidence,” Hon. Donald E. Shelton, Young S. Kim, and Gregg Barak, Vanderbilt Journal of Entertainment and Technology Law, Volume 12 Fall 2009 Number 1.
• "The 'CSI Effect': Does It Really Exist?" Donald E. Shelton, National Institute of Justice Journal 259. (17 March 2008) http://www.ojp.usdoj.gov/nij/journals/259/csi-effect.htm.
• “A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does a 'CSI Effect' Exist?” Donald E. Shelton, Young S. Kim, Gregg Barak, Vanderbilt Journal of Entertainment and Technology Law Vol 9 No 2
• “The CSI effect: legitimate concern or popular myth?” Catherine M. Guthrie, Prosecutor, Journal of the National District Attorneys Association, Vol 41 No. 4 (July-August 2007): p.14
• “The CSI Effect,” Richard Jones and Arthur Bangert,  Science Scope (Nov 2006): p.38.

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A MAN'S HOME IS HIS MARKET

We see the "castle" as a paradigm, not just because we are at war with our neighbors - Hobbes' war of all against all being the reason for government. For us, the home is primary protection against the elements. In the words of William Pitt:"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter." After all, the way to take a castle is to "storm" it. In the 20th century military assault was by "stormtroopers." In our time, Iraq was conquered by "Desert Storm."  In a society of open courtyards, verandas (a Hindi word, likely borrowed from Portuguese), decks, roofs with hanging gardens, patios, arcades and colonades, concepts of safety, security, and ultimately, property rights, must have other paradigms.

In Nelly Hanna's biography of Isma'il Abu Taqiyya, Making Big Money in 1600 (American University of Cairo Press, 1998) she tells of how he expanded his home to meet the needs of his large and successful family. Established as perhaps the leading merchant of Cairo c. 1000 AH (c.1600 AD), certainly as one of its prominent men of commerce, he already had built a warehouse - wikala - that in fact included living quarters for travelers as well as shops and storage. To do that, they could not use "eminent domain": they had to buy each parcel, maybe 100 feet on a side for a small plot. It took years, but it respected property rights. He still needed to accommodate his wives, concubines, servants, slaves, and visiting clients. To expand his home, he bought the house next door and knocked out a wall. This enlarged his courtyard, baths, and stables, as well as yielding more living space.

The climate of Egypt - in contrast to that of northern Europe - allowed and demanded open spaces, open windows, doors, and arches. Entrance to the inner rooms was guarded, certainly, but the margin between public and private spaces was gradual and contextual. Homes had gates, certainly. But a merchant needs to meet people. And they need access to him.

Contrary to the custom elsewhere - and contradicting our own easy assumptions - there was no harem, separate quarters for women. Women and their children were arrayed in their own spaces based on social status. A concubine who had borne a child rated more honor than a wife who had not. Women also brought their wealth and status with them into a marriage. His third wife, having no children, assured her own income by taking control of the "trust" (waqf) established by her brothers. They relied on her to be a better manager and apparently she did not disappoint them. Meanwhile, she was the wife of Isma'il Abu Taqiyya until his death.

After his death, his family split up, children inheriting their shares. Boys got twice the girls' share, but each child got something. (Compare primogeniture in Europe.) Wives did not inherit directly. His one wife with children - themselves now married - brought her family together in one of the inherited smaller homes, acquired the place next door, and knocked out a wall.By the time Ismail Abu Taqiyya was at his height of wealth (and health), his social space included the entire street of his home. He and a longtime friend had built their homes (and their wikalas) on the same street.

They acquired the neighboring properties piecemeal over time - respecting property rights, not only of the owners, but also satisfying the needs of those other waqf "trusts" which held property independent of the nominal owners.

This was not unique to them. With the government of the Mamluks fallen to the Ottoman Pashas who had not been able to exert control and who were themselves appointed for limited terms of office, the merchants of Cairo built and rebuilt large parts of it.

The piazza is a public space, but among urban Americans in the 19th century, it came to be a somewhat pretentious word for the front porch. For Americans, the front porch became the margin between the public street and the privacy of the interior home. Adults could sit and rock while children played games. Friends and neighbors could stroll pass and bid hello and good day. An industry arose to create special furniture for this special space. (As a measure of fire safety, the City of Ann Arbor forbids couches and other interior furniture from the porch. But in any case, it is unseemly: outdoor furniture is appropriate.) Europeans assigned to work in Detroit like Ann Arbor because our restaurants extend to the street, using the sidewalks for table spaces. (This fact was brought to my attention by engineers from an Israeli firm doing business here.) The margins between public and private spaces are blurred. It would be difficult to discuss anything illegal or immoral in such a context. Business and social life become transparent when conducted on the street. In such a context, you grant privacy by minding your own business.

Therefore, rather than the castle which holds against the storm, a commercial society of productive traders, offering values in voluntary exchange, is better served by a theoretical model or exemplar or pattern of open intercourse. That brings up promiscuity, the easy mixing of people, too easy for the Puritans for whom safety from the elements and their neighbors comes from being shut and shuttered.

In an open society, police without a warrant would be unwelcome in a home because they have no business there.

That openness is also reflected in the legal institutions of the time and place. There, four different schools of law - Hanafi, Maliki, Shafi'i, Hanbali - operated their own courts. In each, four different judges (qadi) heard cases. You could pick your judge. In addition, disputes among co-ethnics or co-religionists were expected to be handled within that community. Finally, of course, the Sultan and his Pasha could dispense state justice. Usually by proxy, as elsewhere and elsewhen, the ruler was nominally available to his people by direct appeal.

So, for a merchant such as Abu Taqiyya, different kinds of contracts were better (for him) registered with certain courts.

From our point of view today, it seems odd to learn that under shari'a law as practiced by the competing courts of Cairo circa 1000 AH is women sued - and were sued - on their own account. There is even a case of a Bosnian slave woman being sued. Women inherited their own money, managed their own estates. As now - as always - a woman with a forceful and compelling personality (usually from a wealthy family) could get some interesting clauses in her marriage contracts. By custom, a man is supposed to treat all of his wives equally. There is no way to enforce that -- usually. One woman had it written in and specified how many nights he was allowed to spend with the other wives, etc. As a clause in a marriage contract, it was enforceable. And if she left, she took her property with her. Contrast that with England or France of 1600 AD.

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Firefly: Fact and Value Aboard "Serenity"

This is an example of Romantic fiction as elucidated by Ayn Rand in her book, The Romantic Manifesto.  These characters act on the basis of their values.  While they each know their self-interest, for each that is different, based on their personal life experiences.  Thus, the show is about morality: beliefs becoming actions.  Those different goals bring tensions and conflicts.  

 This show ran 14 episodes in 2002 before it was canceled.  It was recommended to me by another libertarian, who is not an Objectivist. His brief mention on the Objectivist Living discussion board stressed the anti-authoritarian frontier theme.  I think that he missed the more salient perception.   This is not bootleg Romanticism, or smuggled values, but the real deal.

The hero is Malcolm Reynolds.  He owns a spaceship, Serenity, that hauls cargo and passengers.  Serenity is a "firefly" class ship, called so because the tail lights up when power is engaged.  These are sublight ships.  The story is set in the early 26th century.  FTL does not exist.  Terraforming does.  China and America have united to dominate Earth; and Earth dominates the Alliance of human worlds.  (There are no other sentient species.) Reynolds had been a "browncoat," a fighter in a sessionist faction whose revolt failed.  Now, he seeks the frontiers, not quite far enough away from the Alliance.  His crew of three consists of a former combat comrade and her husband who is the pilot, and also an engineer.  Also along for the ride are a hired gun, a non-denominational Christian "Shepherd," a professional Companion (prostitute), and two refugees, a doctor and his sister.

 Each of them has a defined self-interest.  Usually,  those coincide, thus the crew can function.  Often, however, their values are in conflict as their different goals require independent choices in each situation. 

The ship's hired gun, Jayne Cobb, was bought out from the men who hired him to kill Malcolm Reynolds.  Cobb says, and Reynolds understands, that if the deal is ever good enough, he will turn Reynolds over to the Alliance.  Yet, Jayne Cobb is there, at the ready, when he is needed because it is in his self-interest to do so. 

"... value is objective (not intrinsic or subjective); value is based on and derives from the facts of reality ... Every proper value-judgment is the identification of a fact: a given object or action advances man’s life (it is good): or it threatens man’s life (it is bad or an evil). ... since every fact bears on the choice to live, every truth necessarily entails a value-judgment, and every value-judgment necessarily presupposes a truth.  "Fact and Value" by Leonard Peikoff, Ph.D. here.

Malcolm Reynolds is a smuggler.  He achieves that by not getting caught and having the right-looking papers.  He and his crew do not need the attention that comes from having the doctor and his sister on board.  They are fleeing the Alliance because Simon Tam broke River out of a government lab that was deconstructing her super-genius mind.  But Captain Reynolds knows himself and his values.  Doctor Tam and River are his passengers, even as they endanger his mission. 

On The Altasphere here you can find a review of Firefly that centers on creator Joss Whedon's fight to keep the integrity of his work. 

The enduring attraction of this work is evidenced by the continued "fanfic" (new fiction in the universe created by fans, usually canonic, sometimes not).  The Firefly Fan site is here.  The Firefly Wiki  includes characters, actors, a lexicon of the universe, and a guide to the Chinese spoken in the show.  You can watch the show on Hulu, TV.com, and Xfinity.Comcast.  If you watch it on DVD, you can enjoy the backstory and commentary about the struggle to create and maintain the integrity of the work.  A movie, Serenity, was released in 2005.  Much more about Firefly will be revealed by your web browser.

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John Aglialoro Does Not Shrug

Atlas 2 and Atlas 3 are still in the works.  Obviously John Aglialoro was disappointed by the lack of response.  If everyone who bought the book saw the movie, the profits would have been monumental. The rumor that he was throwing in the towel apparently began with the LA Times Entertainment section, "24 Frames" story (here).  But a week later, Aglialoro told the Hollywood Reporter (here) that he is going forward after all.

On the Official Movie Website you can get the news, watch out-takes, and buy gear.  The company started a "Demand Atlas" campaign worldwide.  The "Demand Atlas" campaign here in Ann Arbor worked.  When the initial release was announced, only 10 cities were on the list.  The Demand Atlas clicks (via an Event marketing site) brought it to 30 metro areas and 300 theaters.   It ran for three weeks here in Ann Arbor.  And right now - two months later - it is still in Grand Rapids.  

The way theaters work, if you have a local social group that wants a movie, find out how many seats you need to sell.  In addition to the big name cineplexes, here in Ann Arbor, we have two theaters downtown that show second-run and art films.  One of the malls without a theater has a converted space with Dollar Movies, sort of a 100-minute babysitter, if you think of it that way.  Atlas Shrugged Part 1 is still earning income, though not making money and if your town has not seen a run, you might have an entrepreneurial opportunity.

Harmon Kaslow, Jeff Freilch, and John Aglialoro
from the Official Movie Website Gallery

Like Star Trek, LOTR, and Pride & Prejudice, this is an entertainment product that appeals to a fan market, rather than making one. Yet, the history of entrepreneurship shows that failures are the price of profits.  Interestingly, railroading itself provides a convenient paradigm, as many roads failed financially several times in succession, going through new receiverships or the same guys back again, until the economies of scale and interconnected lines finally allowed profits.  Yet, investors still poured in money.  (Read The Man Who Found the Money: John Kennedy Stewart and the Financing of the Western Railroads by Engelbourg and Bushkoff, Michigan State University Press, 1996.   Beginning as a grocer in the 1840s, Kennedy financed James J. Hill's Great Northern in 1890.)  Considering the 50-year history of Atlas Shrugged in particular, and Ayn Rand's influence in general, it is clear that we are not yet at the end of the line.  

These comments were first posted somewhat differently on the "Objectivist Living" discussion board. Read here. OL poster "Randall" provided Donovan Albanesi's “An Open Lettter to John Aglialoro” from his Culture of Reason Center blog.

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