Ta-Nehisi has used an imagine of Walter White, the first African American head of the NAACP, to illustrate the pliability of the black identity. It certainly shows that there are no fixed definitions of race which are particularly useful. But that is a misconception of biological science, which is rife with exceptions and boundary conditions, and characterized by an instrumental perspective. The data above suggests that self-identified African Americans are characterized by some African ancestry, but over 90% are more than 50% African in ancestry. Walter White, who had five black great great great grandparents and 27 white ones, was almost certainly less than 20% African in ancestry. There are such people even today, but they are not typical, and do not disprove the reality that African Americans are predominantly of African ancestry.

As expected, PCA on our entire sample revealed the greatest genetic differentiation between the US Caucasians and the Africans, with the African Americans intermediate between them, reflecting their recent admixture between ancestors from Europe and Africa. Our estimate of European individual admixture (IA) in the African Americans was also roughly consistent with prior studies [3], with an average of 21.9%. We found considerable variation among individuals in terms of European IA, and a number of individuals with particularly high European IA values (eight individuals of 136, or 6% with values greater than 45%). 

Prior studies focusing on mtDNA and Y chromosomes have found a greater African and lesser European representation of mtDNA haplotypes compared with Y chromosome haplotypes in African Americans, suggesting a greater contribution of African matrilineal descent compared with patrilineal descent [6,7]. For example, Kayser and colleagues [6] estimated that 27.5% to 33.6% of Y chromosomes in African Americans are of European origin, compared with 9.0% to 15.4% of mtDNA haplotypes.

"Race" as a term is very nebulous. But human subgroups with similar ancestries can have group differences in DNA -- and intelligence is highly unlikely to have no genetic basis at all (although most now believe its impact is greatly qualified by cultural and developmental differences).

But what I really want TNC to address is the data. Yes, "race" is a social construct when we define it as "white", "black," "Asian" or, even more ludicrously, "Hispanic." But why then does the overwhelming data show IQ as varying in statistically significant amounts between these completely arbitrary racially constructed populations? Is the testing rigged? If the categories are arbitrary, then the IQs should be randomly distributed. But they aren't, even controlling for education, income, etc. 

For example, consider only affluent households whose incomes were above $75,000 in each year (adjusted for inflation). Table 2 shows that the average affluent white household lived in a neighborhood where the poverty share was under 10 percent in every year. But poor white households (incomes below $40,000) lived in neighborhoods with only slightly greater poverty shares, about 12 percent or 13 percent.

In contrast, affluent blacks lived in neighborhoods that were 14-15 percent poor, and affluent Hispanics in neighborhoods that were about 13 percent poor. On average around the country, in this whole period of nearly two decades, affluent blacks and Hispanics lived in neighborhoods with fewer resources than did poor whites.

On May 20, the Prime Minister of Ireland, Enda Kenny, will receive an honorary degree and deliver the commencement address at Boston College, a Jesuit university. The Archbishop of Boston, Cardinal Sean O'Malley, has announced he will boycott the ceremony because Kenny supports a bill in Ireland that legalizes abortion to save the life of the mother. This bill, which according to Kenny merely codifies existing law, was written after a woman named Salvita Halappanavar was denied a medical termination even as she was having a miscarriage and died. O'Malley, however, cites the church teaching that "the deliberate decision to deprive an innocent human being of life is always morally wrong." Generally seen as quiet, humble, and competent, the cardinal presents the decision as absolute. He precludes any possibility of dialogue or discussion -- he simply cannot bless the graduates, nor the Prime Minister, owing to Kenny's backing of the Irish bill.

But the American Catholic hierarchy has not always been so consistent in its response to politicians who break with Catholic teachings.

O'Malley's decision evokes the controversy over Barack Obama's commencement speech at Notre Dame in 2009. The Bishop of Fort Wayne boycotted the event because of Obama's position on abortion. Conservative media fanned the flames. The conservative Cardinal Newman Society created an online petition asking the president of Notre Dame to cancel the invitation. It received over 367,000 signatures. Eighty-three bishops publicly objected to the choice of speaker. Ralph McInerny, who at the time had taught philosophy at Notre Dame for 54 years, opined, "By inviting Barack Obama to be the 2009 commencement speaker, Notre Dame has forfeited its right to call itself a Catholic university."

Where were they eight years earlier, when another politician implicated in life-taking spoke at Notre Dame? In 2001, George W. Bush received an honorary degree and spoke at the Catholic university's commencement ceremony. In that case, a political science professor, Peter Walshe, circulated a petition to protest both Bush's economic policies and his embrace of the death penalty. 667 people signed the petition. They marched, gained local and Catholic media attention, and generated some interesting blog posts, after which the controversy died away. Notably, the Catholic hierarchy found that Bush's opposition to fundamental principles of Catholic social teaching and the death penalty did not rise to a level that required opposition.

The Catholic position on the death penalty allows for considerable interpretation, but generally the church has supported the right of the state to act violently in just circumstances, including to protect its citizens. That said, many Catholics now speak of a seamless garment or a consistent life ethic that links the fight against war, the death penalty, euthanasia, and abortion. Many critics have pointed to various cases in which serious doubts remain about the guilt of those Bush had executed, and there can be no question that executing an innocent man would create as much culpability as any other killing. Finally, Pope John-Paul II revised the Catechism to argue that circumstances permitting the death penalty are, "very rare, if not practically nonexistent." If bishops are going to condemn commencement speakers at Catholic universities based solely on the propriety of their ideas in relation to Catholic teaching, then surely there was room to question Bush. "Very rare" does not describe Bush's approach to executions.

But even if we concede that abortion is the only issue that generates blanket condemnation from the Catholic hierarchy, what about other pro-choice speakers condoned by the Church? In 2006, Condoleezza Rice gave the commencement address at Boston College. Throughout her political career, Rice has described herself as "mildly pro-choice." To Oprah, for example, in 2002, Rice said, "I call myself mildly pro-choice, meaning that I think I'm where a lot of American women are ... I mostly don't think abortion is an issue for the government." She reaffirmed this position in 2005. Still, although aware of her stance on abortion, conservative Catholics applauded the invitation. Kathryn Jean Lopez, blogger for the National Review, noted that Rice was only "moderately pro-choice" and not a major abortion advocate one way or the other. But if abortion is as heinous as Catholic doctrine proclaims it to be, then surely she is just as worthy of a boycott as Prime Minister Kenny. At the end of Rice's speech, a few liberal students, seeing her as a warmonger (another position in defiance of the seamless garment of life), turned their backs on her. On the stage, Cardinal Sean O'Malley, archbishop of Boston, smiled and applauded.

O'Malley has drawn an arbitrary line, with Rice on one side and Kenny on the other. That's fine -- we all draw such lines about what kinds of people and causes we can and cannot support, where we can compromise and where we cannot. But as a bishop, he claims an absolute moral authority to present his decisions as responses to universal truths, not carefully crafted political acts. Maybe there's another way.

If Cardinal O'Malley feels he must, out of conscience, refrain from blessing the graduating students of Boston College, lest he sully himself by being in Enda Kenny's company, so be it. But I hope he and Kenny can find time to talk. The Prime Minster can tell him the story of Salvita Halappanavar. O'Malley can explain why protecting the unborn is a higher priority than saving the life of one woman. If they listen to each other, even if they still disagree, we'll all be the better for it.

Absolutism is dangerous. It divides and discourages discussion. We live in a complex world in which new lines of division lines fall not between holders of different beliefs, but between those willing to engage in dialogue and those who descend into the silent surety of their perfect understanding. I hope that this weekend all parties embrace pluralism.

Every spring, commencement speeches echo across college campuses, calling upon students to engage the world. Speakers will invariably haul out terms like "civic engagement" and "global citizenship." Lost in the inspiring rhetoric are the less glamorous, yet arguably more vital, daily forms of civic participation. Such soaring words often obscure the fact that our basic civic duties, voting, jury service, electoral office - the three core constitutional requirements of citizenship - are being ignored in favor of grand plans to "follow your passion" and "change the world."

Like generations before them, many of these young, idealistic Americans will only reluctantly accept, or even reject, invitations to daily citizenship offered by our Constitution. Many of them already have.

Even before they graduate, these students have often failed to vote. Voting is a precious right expanded to all of our citizens only after great struggle. Last year, two billion dollars were spent in the presidential election to get a little over half of eligible citizens to vote. Approximately, the same number of people watched the Super Bowl in 2012 as chose to participate in the central tenet of our constitutional democracy.

They will groan at receiving a jury summons, a core constitutional responsibility. Lost in their collective memories are the struggles for equal rights first fought by the Women's Suffrage Movement and then again by the Civil Rights Movement to get a seat on that jury panel. Lost is the understanding that equal citizenship means equal civic responsibilities.

They will complain at having to pay taxes. Every April 15^th, Americans (young and old) unite in dislike of paying our share to the federal government. Yet, without the constitutional power to tax, little of the military security, connective infrastructure, or social safety net that defines modern America would exist.

This is not to cast generational blame. The problem affects all ages--as evidenced by the fact that the commencement speakers waxing poetic over lofty targets and forgetting more fundamental forms of engagement are often older individuals themselves. Nor is it to minimize the real civic and community service that young people do provide in other areas from military service, to volunteer work, to community development. But the problem remains that the call to commencement citizenship fades quickly: Graduates often wind up not doing even the small things they can do to change their world.

An honest commencement speech would acknowledge that we are a nation that glorifies constitutional rights but too often declines constitutional responsibilities. We embrace the ideals of engagement, but ignore the difficult work a democracy demands. Citizenship is not always grand and soaring, but involves daily, ordinary actions of maintenance. We should be inspired, but inspired by the common institutions that make democracy work.

Is there a better example of localized, empowering, educative self-government than jury service? Yet almost no effort is expended to improve awareness of its importance. The result is that one of our core civic duties has withered away because we no longer understand why jury duty matters. Juries remain a missed constitutional teaching moment for most citizens.

Voters braved long lines in November and faced other barriers to franchise that should never be repeated. This is a testament to the effort required for citizenship because, in truth, real citizenship is more like the long lines waiting to get into the polling place than the vote itself. Just ask those volunteers who sit in polling places all day every two years helping a democracy vote.

Daily citizenship means recalibrating our gaze to look at the local duties that need our support. Jury trials have been cancelled because not enough jurors showed up to court. Elections have been decided by a fraction of the populace because citizens did not show up to vote. Local elective offices go unfilled or ill-filled because not enough people decide to participate.

Civic responsibility is the rub of citizenship. As President Obama candidly acknowledged in his commencement address to Ohio State University this month, borrowing themes from John F. Kennedy's famous inaugural, "As citizens, we understand that it's not about what America can do for us. It's about what can be done by us, together, through the hard and frustrating but absolutely necessary work of self-government." It is not about changing the world in a boundless future, but engaging constitutional responsibilities in the grounded present.

The political responsibilities of voting, jury service, and participating in elective office are the basics of our constitutional order. If we are inspired by anything at graduations, we should be inspired to participate in these fundamental, if ordinary, constitutional duties.

Private education as we have known it is on its way out, at both the K-12 and postsecondary levels. At the very least, it's headed for dramatic shrinkage, save for a handful of places and circumstances, to be replaced by a very different set of institutional, governance, financing, and education-delivery mechanisms.

Consider today's realities. Private K-12 enrollments are shrinking -- by almost 13 percent from 2000 to 2010. Catholic schools are closing right and left. The Archdiocese of Philadelphia, for example, announced in January that 44 of its 156 elementary will cease operations next month. (A few later won reprieves.) In addition, many independent schools (day schools and especially boarding schools) are having trouble filling their seats -- at least, filling them with their customary clientele of tuition-paying American students. Traditional nonprofit private colleges are also challenged to fill their classroom seats and dorms, to which they're responding by heavily discounting their tuitions and fees for more and more students.

Meanwhile, charter school enrollments are booming across the land. The charter share of the primary-secondary population is five percent nationally and north of twenty percent in 25 major cities. "Massive open online courses" (MOOCs) are booming, too, and online degree and certificate options proliferating. Public-sector college and university enrollments remain strong and now educate three students out of four. The "proprietary" (i.e. for-profit) sector of postsecondary education is doing okay, despite its tortured relationship with federal financial aid.

What's really happening here are big structural changes across the industry as the traditional model of private education -- at both levels -- becomes unaffordable, unnecessary, or both, and as more viable options for students and families present themselves. While unemployment remains high, the marginal advantage of investing thirty or fifty thousand dollars a year in private schooling is diminishing, particularly when those dollars are invested in low-selectivity, lower-status private institutions. Recent analyses by AIR's Mark Schneider and Brookings's Stephanie Owen and Isabel Sawhill make it explicit:

People who attended the most selective private schools [colleges/universities] have a lifetime earnings premium of over $620,000. ...For those who attended a minimally selective or open-admission private school, the premium is only a third of that....[P]ublic schools tend to have higher ROIs than private schools, and more selective schools offer higher returns than less selective ones.

Alterations in the housing market may also play a role where K-12 private schools are concerned. Not long ago, one could live in a nice house in the city for a lot less than a nice house in the suburbs -- and spend the money saved on private schooling for one's kids. In gentrifying cities, however, that's no longer so. Now one must pay more for a house in the city plus private school for the children. Thus, more parents are saying, "Forget it, I'll go public -- provided the public sector can be made to supply me with a good charter or magnet school, or a virtual-education supplement to a decent neighborhood school."

Three factors keep all these changes from being more visible and talked about.

First, of course, they're gradual, and thus (proverbially) difficult to perceive. Second, it's not in the interest of private schools or colleges to acknowledge that they have a problem -- lest it create the educational equivalent of a run on the bank, with clients fleeing for fear of being abandoned after a sudden collapse. Much of the allure of private schools, after all, is based on their reputations, which they work hard to sustain. Hence they maintain a brave front while quietly shrinking, discounting -- and recruiting full-pay students from wealthy families in other lands, particularly in Asia.

Third, elite private institutions are doing just fine, many besieged by more applicants than ever before. The wealthiest Americans can easily afford them and are ever more determined to secure for their children the advantages that come with attending them. And at the K-12 level, a disproportionate fraction of those wealthy people live in major cities where the public school options are unappealing. So we're not going to see an enrollment crisis anytime soon at Brown, Amherst, or Duke, nor at Andover, Sidwell Friends, or Trinity. Indeed, New York's new Avenues School is able to fill its classes with families willing and able to pay its staggering $43,000 per annum.

Because these elite schools and colleges are also highly visible -- and where the "chattering classes" want (and can afford) to enroll their own daughters and sons -- they create a façade of private-sector vitality. Behind it, however, like the Wizard of Oz's curtain and Potemkin's building facades, there is much weakness, a weakness that probably afflicts the vast majority of today's private schools and colleges.

Is this situation reversible? And should it be a matter of concern for education reformers and policymakers?

Most other modern countries have essentially melded their private-education sectors into their systems of public financing -- and have accepted the tradeoffs that accompany such financing, namely government regulation of curriculum, teacher credentialing, student admissions and more. We can see early examples of this in the U.S., too, as vouchers gradually spread and private schools accommodate themselves to the state testing regimes and other rules that come with such financing.

This is apt to be a limited remedy, however, due to American church-state entanglement anxieties that other countries don't share; prohibitions in many state constitutions that make such public financing difficult or impossible; and our conviction that what's valuable about private education is its freedom to be different. The policy dilemma is whether different-ness is precious enough, if with it comes gradual erosion of the "different" sector itself.

One can also fairly ask whether U.S. private schools and colleges are really all that different from their public-sector counterparts. In practice, their education-delivery model is practically indistinguishable, save for the accoutrements that the wealthiest of them can buy (trips to faraway lands, nifty technology, tiny classes, etc). There is, however, a difference where religion is concerned: Just 22.8 percent of K-12 private-school students are in secular schools, while about 32 percent of all private college students are enrolled in religiously affiliated institutions. In less prosperous schools and colleges, religion may, at day's end, be the only real difference between public and private -- and the return on that investment, while perhaps significant, cannot be easily measured.

Changing the delivery system might serve to make private education both more affordable and more different, and signs of such change are already evident, but rarely in the traditional nonprofit portions of the private sector. Instead, the boldest innovations are coming from entrepreneurs, most of them profit-seeking and most of them delivering instruction (and more) via technology rather than face-to-face in brick buildings that are open just six or eight hours a day for 180 or so days a year.

Or elite universities -- the ones that are still thriving and would continue to thrive without these changes -- are, themselves, innovating -- mostly for students other than their own. The MITs and Stanfords are teaming up with the Courseras and Udacitys -- educational technology companies specializing in online education -- to offer online courses to thousands. Udacity has put a toe into the K-12 waters, both by partnering with local school systems and by inviting students to enroll directly in its college-level courses. Nor is it likely to stop there. Indeed, I expect "St. Paul's math" and "Dalton's literature" in time to echo across the land, too. If current trends continue, we're going to see a bi-modal system develop, with public schools (including charter schools) and ultra-elite private schools monopolizing the education space as the plethora of smaller private and parochial schools that once fell between them gradually fade away.

Can run-of-the-mill private schools and colleges reboot? Can they change themselves -- including both their delivery systems and their cost structures -- enough to brighten their own futures? I wouldn't bet a year's tuition on it.

Dominican-native Yilbert Pena used to divide his life into two halves. The first half was the blithe era until his 16^th birthday. That day he went to his mother asking for the papers he needed for his drivers permit application and discovered he possessed none of them. Pena is a burly, affable presence and quick to smile, but he offers a gloomy analogy to describe learning of his undocumented status. "It's like suddenly becoming handicapped," he says. "Everyone around you is doing stuff you can't." Seeing no benefit in earning a high school diploma if he was barred from jobs that demanded one, Pena dropped out. He fathered a child. Paranoid about being deported to an island country he had left when he was eight years old, he hid his status from everyone he knew, including the mother of his daughter.

There is one thing Pena wishes the president had added in his Rose Garden statement, though: a directive to DREAMers to go out and acquire documentation showing they were in the United States. Because when the regulations for the Deferred Action for Adult Children (DACA) program were published, it turned out that applicants not only had to meet an age requirement (16 and under when they had arrived, and no older than 30 when the change was announced) and provide proof of residency for the past five years, but also had to demonstrate they had been here when the President had unfurled the new policy. And Pena, who had been so careful not to leave footprints, didn't have any receipts or bills to show that on June 15th he was living in New York, the city he'd called home for most of his life.

It's a problem many of the older DACA-eligible crowd--the ones who have left or graduated from high school years ago--are encountering. "For applicants who don't have current school transcripts and who have been told for years to hide their presence for their own safety, it can be challenging to prove they were here," says Dan Berger, a partner in the Northampton, Mass.-immigration law firm Curran & Berger. "Pulling together their applications takes creativity and detective work." Deeds or mortgages, tax receipts, dated bank transactions, pay stubs, and utility bills--basically, the evidence the Department of Homeland Security recommends submitting--tend not to be part of an undocumented immigrant's life. It's an issue that could plague millions of immigrants if broader reform does indeed pass. If the experience of the DACA cohort is a good indication, when these men and women have come into contact with Official America, it was often unintentionally.

Gail Thalmann, a retired teacher who lives on Long Island, about an hour and a half away from Pena, has helped several of her former students through their DACA applications. A Salvadoran kid who graduated in 2011 and then worked off of the books for an auto repair shop had a very difficult time proving he'd been in the country after he'd left school. The Department of Homeland Security returned his application with a request for more evidence. Then there is the boy whom Thalmann--who asked to be referred to by her maiden name, because she's known for working with a group of Latino kids and doesn't want to draw attention to their undocumented status--affectionately refers to as the "careless one." He had no trouble pulling together his application: for 2012, he had a driving without a license ticket and for the June 15^th date he could submit the hospitalization record he had acquired after nearly cutting off his finger with a hedge trimmer. "It's the kind of stuff I wouldn't want on my record," she says. "But given the circumstances, I'm glad it's on his."

Pena, unfortunately, ended up in a position similar to that of the squeaky-clean ex-student. Most of his documents were from school: In addition to report cards, there was a letter the administration had sent to his home warning he was in danger of flunking gym. After he dropped out and started working in construction, the rest of his papers came from situations where acquiring documentation wasn't a matter of choice. His daughter's birth certificate attested that Pena had been present at Jacobi Medical Center in the Bronx on December 29, 2010. His closest friend, a Marine, had sent Pena a letter from Parris Island, S.C. while he was in boot camp; that proved Pena was in the country in early 2012. The elusive piece of evidence was for June. He couldn't think of anything that could suffice.

Pena had racked up receipts that day; they just weren't in his name. He'd made several calls on his cell phone, but the H2O prepaid plan was under the name of his stepfather, who is a legal resident. Pena had used a debit card to take money out before he'd boarded a bus to Orchard Beach in the Bronx, but it was also under his stepdad's name. What frustrated Pena most was that his boss had urged him to open a bank account; instead Pena had stashed cash in a safe he'd bought at Home Depot that looked like an Ajax cleaner so it wouldn't stand out among his cleaning supplies. "I was just scared to put my name on anything," he explains. That had seemed prudent. Now it was keeping him from the program that would have allowed him to restart a life that had seemed halted for three years.

The only evidence that tangentially placed Pena in New York on June 15^th was Facebook. His profile page listed him as a resident of the Bronx, and he'd posted some pictures of himself in June. While it was an unorthodox choice for submission as part of a federal application, many DREAMers had sent in posts to prove residency. But Pena's posts didn't include an identifiable landmark, and in any case, Jessica Greenberg, an attorney at the African Services Committee in Harlem who took on Pena's case, was wary of resorting to social media. Posts could be altered, which the federal government was, of course, aware of.

Plus, the standards for the June 15^th evidence were higher than the rest of the application. The Department of Homeland Security was accepting affidavits, or letters, from people like employers, clergy, and former teachers attesting that the applicant had worked for them, or attended their church, or sat in their classroom in the States. But the government was not accepting affidavits for the June 15^th date, to insure that immigrants who had left the country before the change in policy wouldn't return to take advantage of the new opportunity. So even though Pena's boss had offered to write him a letter, it wouldn't do him any good.

The fact that an escape from Pena's undocumented netherworld had materialized, and yet remained inaccessible was, in his words, "crazy making." It had never been easy to get through his days doing non-union construction jobs, but after he reached an impasse on his DACA application it became more painful. "You have this feeling that your life is never going anywhere," he says, "even when you're working seven days week and working really hard." Pena would get texts in the evening summoning him to a site at 5 AM the next morning; then, for 12 to 14 hours he would carry 80 pounds of concrete on his back and stir cement under a hot sun. At one point he'd seen an out from the job he'd come to loathe: Pena is a self-taught technology whiz and the owner of a rug cleaning company approached him about running IT for the small business. But when the man had discovered Pena didn't have a social security number, he withdrew the offer.

Pena also started compulsively hoarding receipts for documentation purposes, finally opened that bank account, and took out a credit card. It might not make a difference to his DACA application, but if broader immigration reform passed, he wasn't going to miss out because he lacked some slippery slips of paper.

The bipartisan Senate bill, which was introduced in April, in fact set a lower bar for proving residency than the DACA application demanded. It required just one piece of evidence showing residency before December 31, 2011. Pena wouldn't have any trouble passing muster. But there was no assurance that the requirement would be part of the bill, or--for that matter--that the bill would become law.

As it turned out, Pena's fate didn't hinge on the upcoming Washington debate. After queries from this reporter and Pena, Greenberg reviewed his application again and thought of an unexplored angle. Pena had said he hadn't been to the doctor, but what about his daughter? He remembered that he had in fact taken her for a checkup on June 18^th. "I don't know where my head was," he said afterwards. "I just didn't think of it." Records corroborated Pena had been present at the pediatrician's office on nine occasions, including that seminal June date. Just around the time the Senate bill was announced, Pena put his DACA application in the mail, along with the $465 fee.

While his approval hasn't yet come through, Pena already felt his world expanding. He was on the verge of testing out of the GED program and planned to enroll in community college to become a licensed practical nurse. And then there were the non-professional opportunities that would come with legal residency. He hadn't been on a plane since he'd come to the United States from the Dominican Republic; he longed to travel there, and see cities like Sao Paolo, which he'd glimpsed in a documentary. "When I get on a plane," he says, "I honestly think I'm going to cry."

The DACA program won't lead to citizenship. It provides temporary work authorization and reprieve from deportation in two-year increments. Signs were, though, that with conservatives like House Whip Rep. Eric Cantor (R-Va.) coming out in favor of the DREAM Act, a version of it would become law, either as a stand-alone bill or as part of comprehensive immigration reform. With his years as an undocumented immigrant appearing to come to a close, Pena regarded the period philosophically. He felt fortunate not just to have met the mix of requirements for DACA, but also for the perspective living in the shadows had provided. "When people say they could never do a minimum wage job at MacDonald's, that it's too hard, I think, really?" says Pena. "I've seen and done a lot worse. You learn a lot, going through what I went through. You learn how brutal it can be."

But what exactly will tomorrow's schools look like after they get a SIlicon Valley-style makeover? What exactly are we trying to accomplish pedagogically by integrating computers more deeply into the classroom? And how do we work more science, math, and tech education into our schools? These were some of the issues that the guests at The Atlantic's Technologies In Education Forum tackled earlier today. Here are a few of the interesting ideas I took away from the wide-ranging discussion

Kids should play video games in school 

Could video games be the future of tomorrow's classrooms? Maybe. Justin Leites, an executive at News Corp. ed-tech subsidiary Amplify, told the crowd that he used to look at the landscape of educational gaming and wonder, "How is it that all these well-intentioned, smart people have been doing this so long and it's so awful?" Today, he argued, companies are catching up by adopting the production techniques of the big commercial gaming companies. The goal, he said, is to create "chocolate covered broccoli."

Important disclosure: one of the day's two underwriters was the Entertainment Software Association, otherwise known as the video game lobby. Obviously they have more than a bit of interest in seeing the K-12 market open up for their product. 

In any event, some experimentally minded schools are already embracing video games as teaching tools. Kate Selkirk, a master teacher at New York City's Quest to Learn, talked about students using Minecraft to build roller coasters and Ancient Greek and Roman architecture. She explained how she used Prezi -- which is a bit like an interactive Powerpoint for supernerds -- to build mazes for students which they could navigate by solving math problems. When students hit a dead end, it served as an instant alert system for kids who were having trouble with their work, allowing her to come over and help them. 

Which brings us to another one of the day's big themes. Making school more fun is an age old desire among educators. But it might also make it more effective.

The end of industrial-style learning

It's a common complaint among education wonks that our current K-12 system is the product of a bygone industrial era, where students were processed like widgets on an assembly line. As Roberto Rodriguez, President Obama's special assistant on education put it, "the norm persists that we treat all learners the same." 

But if today's panelists are to be believed, education may finally be about to move into its post-industrial phase. The key, as always, is data. Games and digital homework tools provide instant feedback that let teachers address specific student needs in ways they haven't been able to before. Richard Culatta, acting director of the Department of Education's Office of Educational Technology, argued that there needs to be a "GPS for learning," which will analyze students strengths and weaknesses, and point them in the direction of how to improve. We're not quite there yet. But maybe one day soon. 

Don't punish noble failures

This was a subtle, but interesting point brought up by David Pinder, principal of McKinley Technology High School in Washington, D.C. Thanks to No Child Left Behind, schools now face fairly stiff federal standards. But if teachers are going to experiment with new technologies, they need more margin for error. "Innovation requires failure," he said.  

It's time to treat computer programming the way we do algebra

Despite all the education professionals milling around, my favorite insight during the day evolved out of a conversation involving a couple of High School kids and an audience comment. Essentially: It's time to stop thinking of computer programming as a specialty subject. Schools should respect it as a fundamental skill. 

Wilfried Hounyo and Sam Blazes were both winners of the 2012 National STEM Video Game Challenge, a competition in which students to design games that can help teach subjects in science, math, technology, and engineering (aka, STEM). Blazes's game, "Battle of the Bugs: Genes Rule," asks players to breed super insects and complete challenges using the principles of genetics, while Hounyo's submission, Electrobob, teaches about the science of atoms and ions by having them skip around as an electron. The two enviably intelligent teens spent much of their interview with moderator and Atlantic national correspondent Hanna Rosin explaining how they'd come to fall in love with programming. One key take away: Robot building teams are the newer, infinitely more awesome version of math club for the kids today. Another: As Rosin noted, these students don't think of programming as a whole separate world the way older adults tend to, but as a tool they can use to explore their interests. 

That might seem obvious to some, but it's worth dwelling on in an education context. Coding is just a fundamental tool, the same way writing in English and algebra are. Moreover, having a basic understanding of how technology actually functions and is developed is becoming important across more and more industries. Yet most schools don't treat it that way. They look at it as a niche. Later on in the day, during a Q&A with Minnesota Senator Amy Klobouchar, an audience member expressed frustration with the fact that not every state treats computer programming as a course that can fulfill core math requirements the way, say, algebra does. Perhaps it's time to change that. Or, at more ambitious schools, maybe it's time to think of ways to work coding into other subjects, the way students exercise their writing skills in social studies, or with science papers.

The MOOC revolution is heading to grad school

Last night, Georgia Tech announced that it was partnering with Silicon Valley startup Udacity to create a new, online master's degree program in computer science. In higher ed land, this is very big news. Udacity is one of the leading pioneers of massive online open courses (known to many as MOOCs), college classes that are generally free to the public and can enroll thousands upon thousands of students at a time. Recently, Udacity  partnered with San Jose State University to create experimental for-credit courses. But the Georgia Tech effort appears to be the first full-on degree program created in conjunction with a MOOC provider. Students anywhere in the world will be able to take it using Udacity's platform, but only those who are admitted by Georgia Tech will be able to earn a degree. 

And here's the twist: It was bankrolled in part by a donation from AT&T, whose Assistant Vice President for Education Leadership, Charles Herget, joined an afternoon panel to discuss college and the workforce. (I should also say here that AT&T was one of the underwriters for the day's event. But, I promise, I'd be writing an article about this development regardless.) Herget told the crowd that half of the students during the program's first year would be AT&T employees, and that the company was hoping it would be a recruiting and training resource in the future. 

There are many things I find fascinating the Georgia Tech, Udacity, AT&T partnership, but I'm going to focus on two of them. The first is that it suggests that the new wave of digital ed tech might reshape graduate programs before making waves on the undergrad level. There are a few reasons why this would make sense. First, one of the big concerns about MOOCs is that they might not be appropriate for marginal students who have trouble self-motivating. In grad school, that's not as much of an issue. Furthermore, there's already a very large and lucrative market for online graduate education. Companies like Udacity might only have to do it cheaper, better, or (in an ideal world) both in order to compete. 

The second fascinating aspect has to do with the involvement of AT&T. I am a deep, deep skeptic of the argument that America is suffering a desperate shortage of tech talent. But companies constantly complain about their lack of qualified applicants for the jobs they have open. AT&T has responded proactively by putting its stamp on a program it thinks will prepare workers with the necessary skills. I'm curious whether other corporations -- say, Microsoft -- might follow suit.

Use schools to build up better broadband for everyone

In order to bring the technology of the future into public classroom's, those classrooms need a decent Internet connection. And that's going to require some investment. In the Telecommunications Act of 1996, congress created the eRate program to expand internet access to schools and libraries. Today, 95 percent of schools have a broadband connection, said FCC commissioner Jessica Rosenworcel. Unfortunately, she added, many are too slow to handle the high-end educational tools that are being developed or even HD video. She argued that it's time for the FCC to pursue "eRate 2.0," to improve the quality of those connections.

It's not just students who would benefit. By extending high speed internet access to schools, Rosenworcel argued, it makes it easier and cheaper to extend it to extend it to the surrounding community. They could easily be nodes in a better national broadband structure. 

Last week Heritage Foundation scholar Jason Richwine, coauthor of a hotly disputed new study on the fiscal costs of comprehensive immigration reform, resigned his position in a hail of controversy over his 2009 Harvard Ph.D. dissertation. In that dissertation Richwine had argued, among other things, that American "Hispanics" are less intelligent than native-born whites as evidenced by their lower average scores on IQ tests. Richwine then attributed Hispanics' alleged intellectual inferiority at least partly to genetic factors.

The Richwine affair is just the latest flap in a long-running dispute over the significance of IQ tests and group differences in IQ scores. It's easy enough to shut down that debate with cries of racism, but stigmatizing a point of view as morally tainted isn't the same thing as demonstrating that it's untrue. Here I want to explain why Richwine's position is intellectually as well as morally unsound.

Let's start with the fact that there is no such thing as a direct test of general mental ability. What IQ tests measure directly is the test-taker's display of particular cognitive skills: size of vocabulary, degree of reading comprehension, facility with analogies, and so on. Any conclusions about general mental ability are inferences drawn from the test-taker's relative mastery of those various skills.

How justified are such inferences? Well, it depends. Without a doubt, the skills assessed on modern IQ tests are widely applicable and highly valued in contemporary American society. Accordingly, considered just as a measure of skills rather than as a proxy for underlying ability, IQ scores clearly tell us something of genuine importance. They are a reasonably good predictor not only of performance in the classroom but of income, health, and other important life outcomes.

But what about innate mental ability? Does such a thing even exist? Evidence from IQ tests provides strong support that it does. First of all, scores on the various IQ subtests are highly correlated with each other, suggesting the presence of a general underlying factor. Furthermore, IQ scores tend to stabilize around age eight and are resistant to moving around much thereafter, in keeping with a relatively fixed level of innate intellectual capacity. And studies of twins and adoptees offer substantial evidence that this capacity has a strong genetic component. The scores of twins (who are genetically identical, more or less) are much more highly correlated than those of regular siblings (who share only about half the same genes). Meanwhile, the scores of regular siblings are in turn much more highly correlated than the scores of adopted and biological children raised together.

So what's the problem? These studies typically assume that the similarity of twins' shared environment is the same as that of regular siblings (highly unlikely) and that adoptive families are as diverse as families generally (in fact, parents that adopt tend to be better off and better educated). When these assumptions are relaxed, environmental factors start to loom larger. In this regard, consider a pair of French adoption studies that controlled for the socioeconomic status of birth and adoptive parents. They found that being raised by high-SES (socioeconomic status) parents led to an IQ boost of between 12 and 16 points - a huge improvement that testifies to the powerful influence that upbringing can have.

A study of twins by psychologist Eric Turkheimer and colleagues that similarly tracked parents' education, occupation, and income yielded especially striking results. Specifically, they found that the "heritability" of IQ - the degree to which IQ variations can be explained by genes - varies dramatically by socioeconomic class. Heritability among high-SES (socioeconomic status) kids was 0.72; in other words, genetic factors accounted for 72 percent of the variations in IQ, while shared environment accounted for only 15 percent. For low-SES kids, on the other hand, the relative influence of genes and environment was inverted: Estimated heritability was only 0.10, while shared environment explained 58 percent of IQ variations.

Turkheimer's findings make perfect sense once you recognize that IQ scores reflect some varying combination of differences in native ability and differences in opportunities. Among rich kids, good opportunities for developing the relevant cognitive skills are plentiful, so IQ differences are driven primarily by genetic factors. For less advantaged kids, though, test scores say more about the environmental deficits they face than they do about native ability.

This, then, shows the limits to IQ tests: Though the tests are good measures of skills relevant to success in American society, the scores are only a good indicator of relative intellectual ability for people who have been exposed to equivalent opportunities for developing those skills - and who actually have the motivation to try hard on the test. IQ tests are good measures of innate intelligence--if all other factors are held steady. But if IQ tests are being used to compare individuals of wildly different backgrounds, then the variable of innate intelligence is not being tested in isolation. Instead, the scores will reflect some impossible-to-sort-out combination of ability and differences in opportunities and motivations. Let's take a look at why that might be the case.

Comparisons of IQ scores across ethnic groups, cultures, countries, or time periods founder on this basic problem: The cognitive skills that IQ tests assess are not used or valued to the same extent in all times and places. Indeed, the widespread usefulness of these skills is emphatically not the norm in human history. After all, IQ tests put great stress on reading ability and vocabulary, yet writing was invented only about 6,000 years ago - rather late in the day given that anatomically modern humans have been around for over 100,000 years. And as recently as two hundred years ago, only about 15 percent of people could read or write at all.

More generally, IQ tests reward the possession of abstract theoretical knowledge and a facility for formal analytical rigor. But for most people throughout history, intelligence would have taken the form of concrete practical knowledge of the resources and dangers present in the local environment. To grasp how culturally contingent our current conception of intelligence is, just imagine how well you might do on an IQ test devised by Amazonian hunter-gatherers or medieval European peasants.

The mass development of highly abstract thinking skills represents a cultural adaptation to the mind-boggling complexity of modern technological society. But the complexity of contemporary life is not evenly distributed, and neither is the demand for written language fluency or analytical dexterity. Such skills are used more intensively in the most advanced economies than they are in the rest of the world. And within advanced societies, they are put to much greater use by the managers and professionals of the socioeconomic elite than by everybody else. As a result, American kids generally will have better opportunities to develop these skills than kids in, say, Mexico or Guatemala. And in America, the children of college-educated parents will have much better opportunities than working-class kids.

Among the strongest evidence that IQ tests are testing not just innate ability, but the extent to which that innate ability has been put to work developing specific skills, is the remarkable "Flynn effect": In the United States and many other countries, raw IQ scores have been rising about three points a decade. This rise is far too rapid to have a genetic cause. The best explanation for what's going on is that increasing social complexity is expanding the use of the cognitive skills in question - and thus improving the opportunities for honing those skills. The Flynn effect is acutely embarrassing to those who leap from IQ score differences to claims of genetic differences in intelligence.

Jason Richwine is the latest exemplar of the so-called "hereditarian" interpretation of IQ - namely, that IQ scores are a reliable indicator of immutable, inborn intelligence across all groups of people, and therefore that group differences in IQ indicate group differences in native intelligence. Yes, the hereditarian view lends aid and comfort to racists and nativists. But more importantly, it's just plain wrong. Specifically, it is based on the ahistorical and ethnocentric assumption of a fixed relationship between the development of certain cognitive skills and raw mental ability. In truth, the skills associated with intelligence have changed over time--and unevenly through social space--as society evolves.

The lower IQ scores of American Hispanics cannot simply be dismissed out of hand. They are evidence of skill deficits that sharply curtail chances for achievement and success. But contrary to the counsel of despair from hereditarians like Richwine, those deficits aren't hard-wired. Progress in reducing achievement gaps will certainly not be easy, but a full review of the IQ evidence shows that it is possible. And it will be aided by policies, like immigration reform, that encourage the full integration of Hispanics into the American economic and cultural mainstream.

In early 1800, the Philadelphia Aurora revealed that the Senate was secretly considering a bill that would, in essence, have allowed the Federalist Party to set aside the upcoming presidential election. The Senate immediately summoned Philip Duane, the editor, to explain where he'd gotten the information. Duane went into hiding; after Thomas Jefferson defeated John Adams, the case petered out.

But the issue of press sources and investigators has never gone away.

On Monday, the Justice Department admitted that it had secretly seized as much as two months of phone records of the Associated Press. The seizure was apparently part of an investigation into an alleged leak about an ongoing intelligence operation in Yemen. The government says that the leak had put Americans in danger. (The AP denies this.)

The special prosecutor conducting the probe appears to have complied with Justice Department regulations. These require approval by the Attorney General; in this case, Attorney General Eric Holder recused himself because he had earlier been interviewed for the leak probe, and the subpoena was approved by his deputy, James M. Cole. The regulations allow secrecy when notifying the news organization would "pose a substantial threat to the integrity of the investigation."

But the regulations also emphasize that such subpoenas ordinarily are to be narrow. Secrecy is disfavored too -- most records requests are to be resolved by negotiation rather than unilateral action. Previous seizures of records were much narrower, Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, said in an interview Tuesday. In this case, he said, "they showed no respect in paying even lip service to the First Amendment."

Reporters often talk to sources -- within government and outside it -- who provide information only after a promise of confidentiality. Investigators covet their testimony and their notes. For years, it was common to speak of an unwritten "reporters' privilege" that barred legal demands for journalists' information. The undefined "privilege" was rooted in the stern language of the First Amendment, which says that "Congress shall make no law ... abridging the freedom ... of the press."

During the civil-liberties crisis of the 1960s, federal prosecutors used grand juries against dissenters and drug users. In a 1972 case called Branzburg v. Hayes, the Supreme Court managed to muddle the issue so badly that, 40 years later, courts are still arguing about what the justices held.

Prosecutors going after the Black Panther Party (and a few stoners in Kentucky) demanded testimony and notes from reporters. The Court decided, 5-4, that the First Amendment did not protect the journalists. The majority opinion, by Justice Byron White, brushed aside the idea of a privilege: "[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it." Justice Lewis F. Powell, the let's-all-just-get-along Sandra Day O'Connor of his day, supplied the crucial fifth vote, but wrote a separate opinion to suggest that there actually is a qualified privilege in some undefined circumstances. "[T]he courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection," he wrote.

Since Branzburg, federal courts have split over whether to apply White's broad denial or Powell's tentative acceptance of the privilege. Many judges believed that Powell's reasoning controlled, requiring a balancing test by a court before journalists or their records could be summoned. But in 2003, Judge Richard Posner of the Seventh Circuit wrote an influential opinion brushing that idea aside. The D.C. Circuit followed Posner's reasoning in the case of New York Times reporter Judith Miller. Miller was summoned to a federal grand jury probing whether Bush officials had leaked the identify of CIA case officer Valerie Plame. She refused to testify about her sources, and spent 85 days in jail.

The Branzburg opinion noted that Congress could always enact a statutory privilege. During the 1970s, members of Congress introduced at least 99 bills to do that. But every proposed privilege had exceptions for emergencies and urgent cases; press groups refused to support anything but a blanket privilege. Meanwhile, debates flickered about how a statute should define "journalist." States enacted their own shield laws, until today more than 40 have them -- without much noticeable damage to their law-enforcement efforts.

After the Miller case, members of both parties in Congress tried again. Over a six-year period, three separate Congresses considered bipartisan bills. The proposed legislation would not only have blocked most requests for testimony, but given protection to "third-party" records of news organizations -- like the AP phone records seized by DOJ. One supporter was then-senator Barack Obama. After Obama became president, his administration reversed the Bush Administration's opposition to a statute. In 2010, a proposed shield bill passed the House by unanimous consent, picked up administration support, and seemed headed for passage in the Senate.

Then, in July 2010, Wikileaks unloaded its massive trove of confidential documents about the Afghan war. The drive for a bill came unstuck.

Now it's 2013. The Obama Administration has declared a war on whistleblowers and leaks that dwarfs anything seen since at least the era of Branzburg. I can't fathom why, but that's nothing new. I can't fathom why Obama stonewalled Congress on the Libya intervention; I can't fathom why the Administration is so grudging in explaining the legal basis of the drone war. This vendetta against leakers seems to me beyond all reason.

For people who work for, or talk to, the media, these aren't abstract questions. National security and law enforcement are important, to be sure. But recent history shows that today, just as in the time of John Adams, government officials, with the best of intentions, have a tendency to overreach -- and, when they get away with it, to overreach a bit more.

"Trust us" is bad constitutional theory, and it's leading the administration astray.

Now would be an excellent time for a new debate about First Amendment breathing room for journalists. How broad should it be? How much protection should we offer for phone records and the like? When the government wants to serve a massive secret subpoena for journalist's phone records, might it not be wise to have a court take a look too, rather than the Attorney General, or the Deputy? Do we need a statutory definition of "journalist"?

A statute would be a lot better than the present system. Could it happen?

In 2010, the shield law legislation was co-sponsored by two respected Republicans -- Sen. Richard Lugar and Rep. Mike Pence were both sponsors.

They're both gone. Will current Republicans step up?

Signs aren't good. With crisis swirling around us, the current House calendar centers on a 37th vote to repeal Obamacare. I fear the members will go from there straight to impeachment on one ground or another, bypassing the bothersome law-making phase altogether.

Andrew Sullivan and Freddie Deboer have two pieces up worth checking out. I disagree with Andrew's (though I detect some movement in his position.) Freddie's piece is entitled "Precisely How Not to Argue About Race and IQ." He writes:

The problem with people who argue for inherent racial inferiority is not that they lie about the results of IQ tests, but that they are credulous about those tests and others like them when they shouldn't be; that they misunderstand the implications of what those tests would indicate even if they were credible; and that they fail to find the moral, analytic, and political response to questions of race and intelligence.

I think this is a good point, but I want to expand it. Most of the honest writing I've seen on "race and intelligence" focuses on critiquing the idea of "intelligence." So there's lot of good literature on whether it can be measured, its relevance in modern society, whether intelligence changes across generations, whether it changes with environment, and what we mean when we say IQ. As Freddie mentions here, I had a mathematician stop past to tell me I needed to stop studying French, and immediately start studying statistics -- otherwise I can't possibly understand this debate.

It's a fair critique. My response is that he should stop studying math and start studying history.

I am not being flip or coy. If you tell me that you plan to study "race and intelligence" then it is only fair that I ask you, "What do you mean by race?" It's true I don't always do math so well, but I understand the need to define the terms of your study. If you're a math guy, perhaps your instinct is to point out the problems in the interpretation of the data. My instinct is to point out that your entire experiment proceeds from a basic flaw -- no coherent, fixed definition of race actually exists.

The history bears this out. In 1856, Ralph Waldo Emerson delineated the significance of race:

It is race, is it not, that puts the hundred millions of India under the dominion of a remote island in the north of Europe. Race avails much, if that be true, which is alleged, that all Celts are Catholics, and all Saxons are Protestants; that Celts love unity of power, and Saxons the representative principle. Race is a controlling influence in the Jew, who, for two millenniums, under every climate, has preserved the same character and employments. Race in the negro is of appalling importance. The French in Canada, cut off from all intercourse with the parent people, have held their national traits. I chanced to read Tacitus "on the Manners of the Germans," not long since, in Missouri, and the heart of Illinois, and I found abundant points of resemblance between the Germans of the Hercynian forest, and our Hoosiers, Suckers, and Badgers of the American woods.

Indeed, Emerson in 1835, saw race as central to American greatness:

The inhabitants of the United States, especially of the Northern portion, are descended from the people of England and have inherited the trais of their national character...It is common with the Franks to break their faith and laugh at it The race of Franks is faithless.

Emerson was not alone, as historian James McPherson points out, Southerners not only thought of themselves as a race separate from blacks, but as a race apart from Northern whites:

The South's leading writer on political economy, James B. D. De Bow, subscribed to this Norman-Cavalier thesis and helped to popularize it in De Bow's Review. As the lower-South states seceded one after another during the winter of 1860-61, this influential journal carried several long articles justifying secession on the grounds of irreconcilable ethnic differences between Southern and Northern whites. "The Cavaliers, Jacobites, and Huguenots, who settled the South, naturally hate, contemn, and despise the Puritans who settled the North," proclaimed one of these articles. "The former are a master-race; the latter a slave race, the descendants of Saxon serfs." The South was now achieving its "independent destiny" by repudiating the failed experiment of civic nationalism that had foolishly tried in 1789 to "erect one nation out of two irreconcilable peoples."

Similarly, in 1899 William Z. Ripley wrote The Races of Europe, which sought to delineate racial difference through head-type:

The shape of the human head by which we mean the general proportions of length, breadth, and height, irrespective of the " bumps " of the phrenologist is one of the best available tests of race known. Its value is, at the same time, but imperfectly appreciated beyond the inner circle of professional anthropology. Yet it is so simple a phenomenon, both in principle and in practical application, that it may readily be of use to the traveller and the not too superficial observer of men.

To be sure, widespread and constant peculiarities of head form are less noticeable in America, because of the extreme variability of our population, compounded as it is of all the races of Europe; they seem also to be less fundamental among the American aborigines. But in the Old World the observant traveller may with a little attention often detect the racial affinity of a people by this means.

Two years later, Edward A. Ross sought to apprehend "The Causes of Race Superiority." He saw the differences between the Arab "race" and the Jewish "race" as a central illustration:

It is certain that races differ in their attitude toward past and future. M. Lapie has drawn a contrast between the Arab and the Jew. The Arab remembers; he is mindful of past favors and past injuries. He harbors his vengeance and cherishes his gratitude. He accepts everything on the authority of tradition, loves the ways of his ancestors, forms strong local attachments, and migrates little. The Jew, on the other hand, turns his face toward the future. He is thrifty and always ready for a good stroke of business, will, indeed, join with his worst enemy if it pays. He is calculating, enterprising, migrant and ambitious

You can see more of this here.

Our notion of what constitutes "white" and what constitutes "black" is a product of social context. It is utterly impossible to look at the delineation of a "Southern race" and not see the Civil War, the creation of an "Irish race" and not think of Cromwell's ethnic cleansing, the creation of a "Jewish race" and not see anti-Semitism. There is no fixed sense of "whiteness" or "blackness," not even today. It is quite common for whites to point out that Barack Obama isn't really "black" but "half-white." One wonders if they would say this if Barack Obama were a notorious drug-lord.

When the liberal says "race is a social construct," he is not being a soft-headed dolt; he is speaking an historical truth. We do not go around testing the "Irish race" for intelligence or the "Southern race" for "hot-headedness." These reasons are social. It is no more legitimate to ask "Is the black race dumber than then white race?" than it is to ask "Is the Jewish race thriftier than the Arab race?"

The strongest argument for "race" is that people who trace their ancestry back to Europe, and people who trace most of their ancestry back to sub-Saharan Africa, and people who trace most of their ancestry back to Asia, and people who trace their ancestry back to the early Americas, lived isolated from each other for long periods and have evolved different physical traits (curly hair, lighter skin, etc.)

But this theoretical definition (already fuzzy) wilts under human agency, in a real world where Kevin Garnett, Harold Ford, and Halle Berry all check "black" on the census. (Same deal for "Hispanic.") The reasons for that take us right back to fact of race as a social construct. And an American-centered social construct. Are the Ainu of Japan a race? Should we delineate darker South Asians from lighter South Asians on the basis of race? Did the Japanese who invaded China consider the Chinese the same "race?"

Andrew writes that liberals should stop saying "truly stupid things like race has no biological element." I agree. Race clearly has a biological element -- because we have awarded it one. Race is no more dependent on skin color today than it was on "Frankishness" in Emerson's day. Over history of race has taken geography, language, and vague impressions as its basis.

"Race," writes the great historian Nell Irvin Painter, "is an idea, not a fact." Indeed. Race does not need biology. Race only requires some good guys with big guns looking for a reason.

When Angelina Jolie disclosed Tuesday morning that she had undergone a preventive double mastectomy, she didn't just shine her white-hot starlight on the gene, BRCA1, that significantly increased her chance of getting breast cancer. She also indirectly raised anew profound questions the federal judiciary -- and now the United States Supreme Court -- has been pondering for years: Where does patent law stand on gene research? Where should it stand? Can the law protect patent holders while also ensuring that the marketplace can most efficiently deliver genetic testing to the people who need it most?

The timing of Jolie's op-ed in the New York Times is important. Within the next 45 days, before the last Thursday in June, the Supreme Court is expected to issue its ruling in Association for Molecular Pathology v. Myriad Genetics, Inc., a long-fought case about genes, including BRCA1 and BRCA2, which are linked to breast cancer and which Myriad Genetics successfully patented (The company's stock rose sharply Tuesday following the publication of Jolie's piece.) The federal case began four years ago, in May 2009, when the American Civil Liberties Union and others challenged Myriad's patents on the genes. From that initial complaint:

Ease of access to genomic discoveries is crucial if basic research is to be expeditiously translated into clinical tests that benefit patients in the emerging era of personalized and predictive medicine. The patents make ease of access more restricted. Because of the patents, defendant Myriad has the right to prevent clinicians from independently looking at or interpreting a person's BRCA1 and BRCA2 genes to determine if the person is at a higher risk of breast and/or ovarian cancer. Because of the patents and because Myriad chooses not to license the patents broadly, woman who fear they may be at an increased risk of breast and/or ovarian cancer are barred from having anyone look at their BRCA1 and BRCA 2 genes or interpret them except for the patent holder.

The gene-patenting case has gone back and forth. In November 2009, a federal trial judge in New York refused to dismiss the complaint. Then, in March 2010, in a 156-page opinion, the judge invalidated two of those patents, concluding that the "DNA's existence in an 'isolated' form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes." Myriad appealed. In August 2011, a panel of the Federal Circuit, which handles all patent cases, by a vote of 2-1, overturned the lower court ruling. On April 15, just one month ago, the justices in Washington heard oral argument in the case. Here's the transcript. And here's the Court's audio.

It is more likely than not that the justices will uphold Myriad's patent -- its monopoly -- over research for these genes. This is that type of Court. But no matter what the justices do in this case Congress has the authority to amend federal patent law to make it harder for companies like Myriad to control for so long the research and development of such genetic testing. In the meantime, the Affordable Care Act also will play a critical role in making it easier for women who are not Angelina Jolie to have more access to timely BRCA testing. "BRC Testing Granted Preventive Care Designation Under the Affordable Care Act," screamed Myriad's press release on March 6th. How do you like Obamacare now?

Jolie or no Jolie, the Myriad litigation is a perfect example of how poorly the law is suited to adapt quickly to biological or technical advancements. In the area of gene-patenting, like so many other areas we care far less about, the medical science is developing far more quickly than the courts can fathom. Patents are supposed to be tools to encourage the creation of things that better society as a whole. And Myriad says that these particular gene patents are economically necessary to fuel research and development. But how many more women -- and men -- might have been able over the past four years to afford BRCA1 or BRCA2 testing in the absence of those protective patents?

It's not necessarily Myriad's fault. The company is playing by the rules Congress and the courts have established. But to the extent they preclude open competition, in the ways in which they create sanctioned monopolies, these patents are the antithesis of capitalism. The societal costs may be worth it when the patent is for a new kind of chewing gum. But when the patent is for an isolated human gene, and when that gene may hold the key to diagnosing breast cancer, is the protection of the patent good public policy? I'm just asking the question. I'm not answering it.

Nearly two years ago, when I first started covering this story, I asked Gary Cohen (no relation), a bioethicist, to offer a potential solution to the problem. In August 2011, Cohen told me:

A path forward would involve a solution that respects patent rights and the system that grants them but yet enables commercialization of affordably priced multigenic diagnostic tests that physicians are seeking and will continue to seek with rapidly increasing frequency in order to make the best possible diagnoses and treatment plans for their patients. One such potential solution would involve the creation of an independent, non-profit body that would serve as a clearinghouse or pool for human gene patents. Rights holders could license their patents (royalty-free) to the patent pool, which could, in turn, sublicense those rights -- for royalties to be passed back to the licensors -- to entities wishing to utilize the various IP aggregated in the pool.

The clearinghouse, one-stop-shopping nature of the pool would greatly reduce the uncertainty, administrative expense, and burden of having to seek out hundreds of rights holders -- which would currently have to be done without any reliable roadmap for who owns what. Royalty disbursements could be set at a given percentage of net sales of the test and would be divided according to an intelligent algorithm for the relative contribution of the various IP to the value of the test. There is precedent for a similar concept with Navigenics, which, as an individual actor, sets forth on its web site a formula for how much it is willing to pay for any one gene among the thousands it sequences with its customers.

It seemed like a good idea then. And it seems like a good idea now. If only someone could get brave, candid Angelina Jolie to write about it.

This post is adapted from a conversation on ChinaFile, an Atlantic partner site. See the full exchange here.

Isabel Hilton: 

You have to marvel at the ingenuity and enterprise of food adulteration in China: can it really be more economic to get rat meat to mimic mutton than just to raise a sheep? But bearing in mind that I come from a country that only recently discovered that some of its major brands' "value" beef burgers were at least partly horse, an animal that the Brits, perhaps irrationally, don't want to encounter on a plate, I think we have to recognize that China is not entirely alone in this.

In Britain, the industrial revolution, with its separation of food production from consumption, also brought a host of appalling food adulteration that took some time to regulate effectively. In the early 1980s in Spain, a still unexplained episode involving fake olive oil left scores of people with permanent neurological damage. In the West we have a whole separate set of problems around food: maximum returns come not from selling fresh, perishable produce but from processing: hence additives, sugar, salt, colorings and the obesity epidemic.

All that said, the sophistication of Chinese adulteration is impressive. Much of it demands a fairly high degree of technical knowledge, which suggests a certain professionalism  though not a high level of ethics. To pick only a few examples, it is unlikely that it was the dairy farmers who had the idea of putting melamine in milk to mimic high protein levels, the episode that left hundreds of babies with damaged kidneys. Experts whom chinadialogue spoke to said it required familiarity with the Kjeldahl method, used in milk testing to determine nitrogen content, as well as knowledge of the protein content and chemical properties of several additives -- not something you would expect to find on the average farm. Then there were beansprouts that had benefited from the application of a hormone that made them grow faster and without roots. They sold very well, but long-term consumption could have caused cancer. So who was the expert on hormones? If you can bear to read it, chinadialogue has a downloadable report on these and other scandals, and the struggles of the authorities to track down what is really in China's food.

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• The Wall Street Journal: Covering China Past and Present

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With this level of technical ingenuity in the adulteration, there are two problems: it is genuinely difficult for the inspectors to keep up. And, as in other areas, it is not clear that they always want to. It is no surprise that the implementation of the regulations is, to put it kindly, unreliable. It is a well worn cliche in China that, however good the rules, they are rarely applied as they should be. In recent weeks we have had scandals over pollutant scrubbers in power station chimneys being switched off to save money, illegal discharge of untreated waste water, fake Environmental Impact Assessments, not to mention misleading air quality data. In all these cases, inspectors are either discouraged from doing their job or too thin on the ground to make any difference -- and of course, the same authorities who mandate the inspection often have a financial stake in the factories.

Finally, as with environmental pollution, food safety destroys any trust that citizens might still have in their government. So mistrustful have they become that Chinese travelers abroad now routinely head to the supermarket instead of the fashion store and British supermarkets have had to ration the purchase of baby milk because enterprising Chinese were buying in bulk and shipping it back home at a profit. Citizens who no longer trust the assurances of the authorities are taking their own initiatives: check out this story about about the Fudan University student whose food safety "wiki" crashed after receiving 25,000 hits in in two hours. All these citizens' initiatives are creating real alternative sources of information and creating transparency through direct action. With transparency comes more pressure: the government either has to clean up the mess or resort to ever more censorship, thus escalating the loss of trust.

This week's revelation that the Department of Justice has secretly obtained Associated Press telephone records from 2012 reaffirms the argument made by venerable First Amendment lawyer James C. Goodale last month: that "the fight for freedom of the press never ends even under a president previously thought to be friendly to the cause." In fact, Goodale has been increasingly critical of the Obama administration's pursuit of whistleblowers.

Goodale, with a career spanning over fifty years, is unusually well-placed to make this case. He, after all, was the general counsel at the New York Times when that paper published the Pentagon Papers in June 1971. His memoir Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (CUNY Journalism Press), published last month, provides an inside account of the intense struggle inside the publication of one of the most famous classified-document leaks in history.

When that great cache of secret documents about the Vietnam War came to the New York Times earlier that year, it was by no means assured that Arthur Ochs Sulzberger could be persuaded to take the risk of publishing their contents. Fighting for the Press provides probably the most detailed account ever written of the internal deliberations at the newspaper and the ensuing legal battle that ended with a 6-3 Supreme Court judgment that rejected prior restraint of publication. From the outset, by instinct and experience, Goodale sided with the reporters in favor of publishing the Pentagon Papers, but there were major obstacles to overcome, mainly the objections of the outside counsel, provided by the firm Lord Day & Lord. At the climactic meeting, Lord Day & Lord partner and former New York Times counsel Louis Loeb gave his professional opinion: "He said not only would it be a crime to publish classified information," Goodale writes, "but it would be a crime even to look at the Pentagon Papers because they were classified."

Goodale's persistence against the advice of these senior lawyers ultimately prevailed: Sulzberger agreed to go ahead, with the caveat that, "in the unlikely event the government moves in court to force us to cease publication, we will honor any court injunction." Nonetheless, Lord Day & Lord quit, and Goodale scrambled to recruit other lawyers, including Alexander Bickel of Yale Law School and Floyd Abrams, another First Amendment stalwart, to lead the case. In the weeks of contention about whether to publish, Goodale had been persuaded that the Espionage Act, with serious criminal implications, did not apply nor did the issue of secrecy classifications. "It was simply a First Amendment question," Goodale concluded, "and I had advised the Times to publish because it would win the case under the First Amendment." That turned out to be the right view.

In ruling for the press, Judge Murray Gurfein of the Southern District wrote, with exceptional eloquence, "The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know."

It has been forty years since the Pentagon Papers made its indelible mark on journalism, but Goodale contends that many of the same issues that were central then remain today. He sees the continuing WikiLeaks case as a second Pentagon Papers, except that so far, the government's attempts to stifle First Amendment rights have proceeded unchecked. Private First Class Bradley Manning, who provided vast amounts of the classified information in question to WikiLeaks founder Julian Assange, is in Goodale's opinion, a figure comparable to Daniel Ellsberg, the military analyst who gave the Pentagon Papers to the Times. "The publication of leaked information by WikiLeaks raises the same First Amendment issues as did the Pentagon Papers case," Goodale argues, and with criminal prosecution for publishing leaked material still a possibility, journalists have "to fight like a tiger and risk going to jail if necessary. Anything less diminishes the freedom of the press."

In an interview with the Columbia Journalism Review, responding to the assertion that the Obama administration has pursued more alleged leakers of national security information under the 1917 Espionage Act than all previous administrations combined, Goodale was furious. "Antediluvian, conservative, backwards. Worse than Nixon," he pronounced the current administration.

With the news of just how far the Justice Department is willing to go over an AP story about a foiled bomb plot, Goodale's brief has significant persuasive strength.

Four uniformed agents bashed down Tony Choi's dorm room door. He started awake as they stormed in. Four unfamiliar figures surrounded him. He was confused. But there was no time to react. They yanked him out of bed. He was still in his pajamas. He screamed as they dragged him away.

Then, they vanished as suddenly as they had appeared.

It took a minute for reality to sink in: this was the same nightmare he'd been having ever since the fall semester began.

It was 2008 - Choi's sophomore year at Berea College, in Kentucky, where he majored in political science and Spanish - when everything went awry.

The country was in the midst of an economic crisis. Choi's college, facing a shortage of funds, was forced to cut his scholarship stipend. At the same time, his mother in New Jersey had just been diagnosed with Stage II breast cancer and had stopped working. His education prospects seemed dire, and he felt powerless. Worse, Choi was an undocumented immigrant..

The stress built up on Choi. He grew paranoid and insecure. He constantly imagined that government agents were out to arrest him.

"I was isolated and 700 miles away from home. My family couldn't help me. I was very, very afraid," he said. "I just kept having panic attacks. I would freak out that someone would find out (about my immigration status). I think that's what started the nightmares."

Choi continued to have similar dreams at least once a week throughout fall. They'd become so recurrent that he was convinced they would become reality.

"I read stories online about immigrant families being detained or whatever, so I was like, I need to prepare to get the hell out of here," he said.

With that, Choi plotted his grand escape, to be triggered if anyone at Berea should learn of his status. He planned to escape, by foot, 120 miles from Berea, KY, over the state border to Cincinnati, OH.

"I went down to Walmart and bought a first-aid kit and a blanket," he described. "I printed Google maps. They're about this thick," his thumb and index finger measured a quarter-inch. "I couldn't walk on the Interstate (highway), so I wanted to know which back roads I could take to Cincinnati."

Choi's ready-to-go escape toolkit, that would let him flee the state between the moment when an acquaintance realized he was undocumented and moment when the authorities would actually show up at his door, included flashlights and extra batteries, a change of clothes, and water. He also packed $100 in emergency cash.

"I'd camp out in the wilderness. That's why I would have blankets. I would be sleeping out in the open," he said. "I mean, I was paranoid."

"At Cincinnati, I'll catch the train to New York," he figured, "and then from there back home to New Jersey," he said.

* * *

I met Choi five years later at his office at the MinKwon Center for Community Action in Flushing, Queens. He commutes two hours daily by bus and train to and from Little Ferry, New Jersey.

Once a predominantly white neighborhood, Flushing has undergone major demographic change since the 1970s, when first the Taiwanese, then the Koreans, and the mainland Chinese surged in.

Today, Flushing is one of the largest Asian enclaves in New York City. Shop signs and advertisement boards along Main Street, Flushing's central drag, are mostly printed in Chinese.

An undocumented Asian person can easily blend in in this busy neighbordhood. Marilyn Bitterman, the district manager of Queens Community Board 7, estimates that around 40,000 undocumented people live in her district, which includes downtown Flushing. In total, 11.1 million undocumented immigrants were residing in the United States in 2011, according to the Pew Hispanic Center in a latest report. This is roughly the equivalent of the entire population of Ohio, the seventh-most populous state in the U.S.

Choi suggested taking breakfast at the McDonald's on Main Street, next to a Chinese herbal pharmacy. Choi's hair was cropped atop his round face like Bart Simpson. His blue T-shirt was left tucked out over a pair of jeans.

Pop hits from the American charts greeted us as we stepped in. I reminded him over the loud music that he'd be talking about his illegal immigrant status at a public place. He shrugged. There's not a white person in the restaurant.

Choi, 24, was born and raised in Seoul, South Korea. In 1997, during the Asian financial crisis, his family's lumber company went bust, forcing them to declare bankruptcy. Their home was foreclosed by the bank.

"Whenever people would call for my father, I would always have to tell them that they'd called the wrong number. He was trying to avoid the debtors," Choi continued in a flat American accent. At that time, Choi received two to three of these calls each day.

His family moved in with his paternal grandmother a few weeks after, but they couldn't bring anything with them.

Social stigma was associated with bankruptcies in South Korea. Choi's paternal relatives refused to help his father, despite being wealthy landowners themselves.

"We couldn't see any avenue of social advancement in Korea. So we moved to Hawaii when I was 9, and lived there for a year before we moved again to New Jersey."

He paused. I waited a while as he took a bite on his McMuffin. The four elementary school-aged Hispanic kids at the adjacent table climbed up and down their chairs and raced around in a game of tag.

"We didn't plan on being undocumented for 14 years," Choi finally continued. "We entered using the tourist visa, with the intention of adjusting our status. But the opportunity just never came. None of my parents' employers could sponsor their work permits which would have set them on the path to a green card."

"I was angry with my mum for not being able to provide for me what my US citizen friends had," Choi added. "It was only when I was in college that I realized it's not entirely her fault, and that the system's so broken it's forced us to become undocumented."

"I've always known that I'm undocumented. I've known it since the day my B-2 visa expired," he said, referring to the tourist visa for temporary entry (not more than six months) into the U.S.

He was, however, forbidden by his family from revealing this secret to anyone outside. The horror of being sent back to South Korea was deeply ingrained in him from young.

A pair of South Korean brothers who went to Choi's church in New Jersey received deportation orders after their identities were exposed, though Choi was unsure who gave them away. Rumors rippled through the small and isolated Korean community in New Jersey about the hideous conditions of immigration detention centers. "Sometimes they drug you going onto the plane," Choi said he had heard.

A report released last November by Detention Watch Network, a national coalition working for the reform of the U.S. deportation system, lists the Hudson County Jail in New Jersey as one of the ten worst detention centers in the country. People reported waiting up to months for medical care. They complained about inedible food, the use of solitary confinement as punishment, and denied access to legal assistance. The brothers bought their own tickets back to South Korea after they completed college, in order to avoid being deported by the government.

"My parents, my sister, they told me, 'Don't ever tell anyone about your immigration status,'" he said. "And whenever I would bring the topic up, they would be like, 'Do you really want the police knocking down our doors?'"

"It's scary, knowing it's a secret you always have to hold, that you always have to fear."

* * *

Asian undocumented immigrants have traditionally been less visible and vocal than their Hispanic counterparts. Most of the undocumented immigrants who have gone public in the media about their status are Hispanic. In contrast, one rarely sees Asians talking about the issue on television.

"I specifically asked, 'Is it a law enforcement flight? Can we tell people that?' He said, 'No, we can't tell you that.' Then I asked that when folks call me can I at least tell them that it is something that they shouldn't worry about, it's something they shouldn't be concerned with? He said, 'I can't tell you that.'"

QUINCY -- The Federal Aviation Administration knows what's up there but it's not telling the public. A slew of Quincy residents have been complaining and calling police and the city about an aircraft that appeared about two weeks ago and has been taking wide, repeated loops in the air, between about 7 p.m. and 4 a.m. Residents from Wollaston to West Quincy describe a low-pitch humming sound coming from the aircraft. Some have said it's reminiscent of a drone, which is an unmanned aircraft operated by remote control. "It's not a drone," FAA spokesman Jim Peters said. "It's an authorized flight and we are aware of it."

Peters declined to make any further comment. The FAA first allowed the use of unmanned aircraft in U.S. airspace in 1990. It continues to allow limited use for firefighting, rescue, law enforcement and military testing, the FAA's website says. Interest in the use of drones is growing. Quincy Police Capt. John Dougan said police are aware of the aircraft and "it's nothing to be concerned about."

Last Thursday evening at a dinner in New Orleans, Keith Plessy and Phoebe Ferguson came together again to bestow an award on John Thompson, the noted death row exoneree, who was being feted by the Innocence Project New Orleans after nearly two decades of false imprisonment. The names of the presenters probably don't ring a bell to you until you put them together and separate them with a "versus," as in Plessy v. Ferguson. The descendants of the litigants of one of the worst Supreme Court decisions ever wanted to pay homage to a litigant who had belatedly benefited from one of its best. Who says irony is dead?

The timing of the Project's 12th anniversary "gala" was propitious. It came just four days before the 50th anniversary of the Supreme Court's decision in Brady v. Maryland, decided on this day in 1963, in which the justices unanimously declared that prosecutors have a constitutional obligation to share with criminal defendants all "exculpatory" evidence officials may have. "Society wins not only when the guilty are convicted but when criminal trials are fair," wrote Justice William O. Douglass, for the Warren Court, as it again sought in those progressive days to enhance individual rights at the expense of government power.

Thompson is a free man today because of the so-called "Brady" rule. But he likely would have been a free man all along -- without spending 14 years on death row -- had his prosecutors obeyed the law in the first place. That dichotomy is what makes Thompson such a poignant symbol of the Brady rule. He proves both that it works and that it is deeply flawed; that it saves innocent people from being railroaded by prosecutors and that countless others are wrongly convicted and imprisoned anyway. The sad truth is that 50 years after Brady, in an increasingly complex criminal justice system, too many prosecutors still hide exculpatory evidence, and too few judges do anything about it.

John Brady

Like many famous Supreme Court litigants whose names become synonymous with high constitutional doctrine, John Brady was no saint. In fact, he was an admitted accomplice to murder. On June 27, 1958, he and a man named Donald Boblit robbed and killed a man named William Brooks. After his arrest, Boblit quickly told the police that he, Boblit, had alone strangled Brooks to death. But Brady's prosecutors never told his defense attorneys about this confession -- about the fact that Brady had not been the actual murderer -- and never turned over the transcript of Boblit's remarks.

Both Boblit and Brady were convicted and sentenced to death by a Maryland jury. It was only then that Brady's lawyers discovered that prosecutors had a confession from Boblit that helped exonerate Brady. (The defense found out by reading a transcript of Boblit's trial.) Brady's attorneys asked for a new trial. The trial judge refused the request but the Maryland Court of Appeals concluded that the suppression of the confession violated Brady's due process rights and that he was entitled to a new sentencing trial. Unsatisfied, wanting a new trial outright, Brady then took his cause to the Supreme Court.

The justices showed little sympathy for Brady. (Curiously, he was never re-tried.) Instead they used his case as a vehicle to memorialize a constitutional rule that burdened prosecutors with an affirmative duty to share with criminal defendants evidence that by its very definition would undermine the prosecution's case. The motives behind the suppression of the evidence didn't matter. A criminal defendant's due process rights were violated when he was tried without the benefit of the the exculpatory evidence. Here's how Justice Douglass briefly explained it in Brady v. Maryland:

An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.

The Brady Rule Today

The justices in Brady identified a problem in criminal cases that undercuts the very foundation of a fair trial -- the government's investigative powers give it access to evidence the defense might need but otherwise never see. But the Court did not propose a universal remedy for violations caused by the suppression of evidence. Would there be an automatic new trial for the defendant from whom the evidence had been suppressed? Would cheating prosecutors be punished and, if so, how and by whom? For two decades these questions vexed judges -- in many ways they still do. But then, in 1985, the Supreme Court, now a far more conservative body, significantly altered the terms of the debate.

In a case styled United States v. Bagley, the Court effectively narrowed the reach of Brady. For a Brady violation to result in the reversal of a conviction the suppressed evidence now had to be both "exculpatory" and "material." The evidence is material," Justice Blackmun wrote in Bagley, "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." By requiring proof that the prosecution's failure to disclose evidence would have made a difference at trial, Bagley was a big victory for prosecutors and an even bigger defeat for aggrieved defendants.

The Bagley decision freed skeptical appellate judges to reject remedies for defendants even where obvious Brady violations have occurred. The results of this higher legal standard are predictable. Bennett Gershman, the longtime legal scholar, wrote in 2011 that a "prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies." Put more simply by John Thompson, who spoke with me Sunday by telephone, "nobody has an answer because no one wants to have an answer."

John Thompson

Actually, Thompson isn't quite right. The courts gave him some very clear answers. He was one month away from being executed -- one month after 14 years on death row! -- when his lawyers by chance discovered that his prosecutors had violated their Brady obligations to him by failing to disclose the results of an exculpatory blood test -- by affirmatively hiding the results of that test. The Louisiana courts quickly reversed his conviction and ordered a retrial -- at which he was acquitted -- and Thompson then won a jury award of $14 million against his prosecutor, a verdict which in 2011 was overthrown by a 5-4 vote of the U.S. Supreme Court.

To Thompson, the Brady rule as its applied today is a failure despite the fact that thousands of prosecutors around the country honorably disclose evidence to defendants -- despite the fact that a few enlightened jurisdictions have even adopted "open-file" discovery rules in criminal cases. The problem, Thompson says, is that there is little incentive for prosecutors to comply with the rule. "With power comes accountability," he told me, and yet prosecutors who he says "have the power to kill" have no accountability when it comes to hiding the evidence. "It's still happening today," he says. "We still don't have something in place 50 years later to protect us."

You can understand how Thompson has come to his views. But those views are shared by many of the experts who practice in and write about this corner of the law. "What troubles me most," law professor Stephen Bright told me last week, "is that so many Brady violations are discovered as a matter of serendipity. In capital cases, we sometimes find them by getting the prosecution's file in Open Records (or Freedom of Information) actions. But most people convicted of crimes have no lawyer to represent them after their conviction has been upheld on appeal. ... It is impossible to know how many Brady violations are never discovered ..."

Perverse Incentives

When he overturned the jury's verdict in Thompson's favor, Supreme Court Justice Clarence Thomas wrote that there were other meaningful remedies available to aggrieved defendants to ensure that prosecutors complied with their Brady obligations. "Legal training and professional responsibility" were enough to immunize district attorneys from such awards, Justice Thomas wrote. But study after study proves conclusively that this is wrong -- that prosecutors are rarely sanctioned by the bar when they cheat on their disclosure obligations. "The Myth of Prosecutorial Accountability," is how the Yale Law Journal put it.

This paradigm doesn't affect the vast majority of prosecutors who try to do right by their Brady obligations. But the problem is that it also doesn't affect the small minority of prosecutors who do not. It's essentially a no-lose situation for the cheating district attorney. If she fails to disclose the evidence and doesn't get caught no one ever knows (except the condemned inmate and the real criminal). And if she fails to disclose the evidence and eventually gets caught, the wrongly convicted man is freed, but she gets to keep her job in the prosecutors' office without punishment. Under pressure to get convictions, dealing often with an overworked and understaffed defense attorney, why not take a shot and withhold the evidence?

Last month, the outer limits of these transgressions was exposed. In Texas, a state judge named Ken Anderson was arrested and charged with hiding exculpatory evidence at the expense of Michael Morton, who spent 25 years in prison for a murder he did not commit. Anderson faces relatively minor charges. But if it were up to Thompson, Anderson would be facing attempted murder charges. "What happens when we learn that a district attorney has killed an innocent man?" he asked me yesterday. "Isn't it premeditated murder? What are we willing to accept" from our prosecutors?

The Path Ahead

It's not difficult to see where the law's priorities lie. When we have disputes over money, Bright told me last week, "there is elaborate discovery with a full exchange of documents, names of witnesses, depositions, interrogatories, requests for admissions, etc. but in cases involving possible loss of life or liberty, we still have 'trial by ambush' in most jurisdictions with very little discovery." The problem of Brady enforcement is made worse, Bright says, because the complexities of today's criminal law means that "the prosecution often has no idea what the defense will be. Bright reasoned:

Even the most conscientious prosecutor may not know how critical a document may be to establishing the defendant's innocence. Plus, the prosecutor has no more incentive to turn over exculpatory evidence to the defense than the government has to provide the defendant with a good lawyer. Few prosecutors who are convinced of a defendant guilt are going to turn over evidence that may hurt their chances of obtaining a conviction. It is very easy to rationalize - from the prosecutor's view of the case - that the evidence is not really exculpatory.

The answer here is not nearly as difficult as judges and prosecutors and bar associations make it out to be. To honor the legacy of Brady, to be true to its constitutional command, to reduce the perverse incentives that now affect too many prosecutors' offices, pretrial discovery in criminal cases must be broadened to include all evidence (trial judges can protect witness security as appropriate). And there must be swift and significant punishment for prosecutors who violate the rule. John Thompson says that this isn't happening more often today because judges and lawyers want to protect each other, even at the expense of wrongly convicted criminal defendants. There is little in the record of the past 50 years that proves him wrong.

Unseen, drum taps start their slow, strict cadence, announcing the sound of regimented footsteps and shouted marching orders.

The sky is slate, marking no shadows for the casket that leads the full-honors funeral procession. An escort platoon a few dozen deep and a horse-drawn caisson around the corner, coming to a halt in front of five unadorned pedestals on a damp Thursday morning at Arlington National Cemetery. The band begins its dirge, and with it, a funeral 100 years in the making.

A century ago, two brothers died within four years of one another. The older, Zuinglius McCormack, died in 1912; the younger, Lycurgus McCormack, in 1908. They were both veterans of the Civil War, fighting with infantry from Indiana. Zuinglius, a lawyer, fought with the 132nd Infantry Regiment and in the Battle of Jonesboro, which led to the Union's occupation of Atlanta. Lycurgus was also a lawyer, but he turned to a career printing the local newspaper after the war. He was one of 65,000 minutemen who mustered after rumors circulated that the Confederates were sending 6,000 cavalry units across the Ohio River.

When these brothers died years later, they may have been entitled to a military funeral. But, like thousands of other soldiers recently being rediscovered, they fell through the cracks, and out of memory. They died widowless and childless, and, until earlier this year, forgotten.

Forgotten Heroes

A month earlier, Burt Colvin and Rick Baum were in a crypt.

"All you could see were hundred of urns next to each other, on top of each other, behind each other, and we had to take every single one of them out," Baum says. "The very last one, in the far back recesses in the corner was Zuinglius."

Colvin, a 51-year-old electrician and amateur genealogist, had previously received 136 names of unclaimed cremains from the Indiana facility. He wanted to identify which were veterans, running each name through various genealogy databases for clues. "It took me over a year to determine yes or no" on veteran status, Colvin says. In researching the brothers, Colvin says he developed a connection with them. "We brought them out here and had about 11 to 12 hours in the car; it was like they were friends riding in the back seat," he says. "It's nice to see them here, but it will be sad to go back without them."

Colvin and Baum volunteer with the Missing in America Project, a group dedicated to making sure every unclaimed veteran gets a proper military funeral. Since forming in 2006, the group has visited 2,782 funeral homes, amounting to a database of 16,800 names. They are slowly making their way down that list, identifying the veterans one by one, and sending the information they find to the Veterans Affairs Department for final approval. So far, 2,044 cremains have been identified, and 1,854 have been buried.

"Every funeral home, bar none, has some unclaimed remains," Fred Salanti, the group's executive director, says. "If they don't have them, they transferred them to a massive crypt somewhere, but they are still in a crypt unclaimed, and not buried officially."

They haven't yet processed them all, but Salanti says as many of 5,000 of the names they are researching could be veterans. But that's only from a survey of a very small portion of the approximately 22,000 funeral homes in the U.S. Missing in America estimates there could be as many as 500,000 unclaimed veterans nationwide. And with the signing of the Dignified Burial Act last year, the VA to now has the direction to bury all of them.

Although they all end up in the similar place--on a shelf in a funeral home, or in a mass crypt--the unclaimed veterans all have different stories. Some were left behind because, like the McCormacks, they had no children or wives to claim them. Other's families were too poor to pay for a funeral, and then forgot about their loved ones. Then, there are the cases where cremains show up in storage lockers. It's up to volunteers like Sharon Gilley, a 60-year-old Jacksonville, Fla., resident, to reclaim the story lost to the dust racks. "They found somebody's ashes in a shed in Florida," she says of a memorable case. "And we actually found the records, found the family, and they claimed the remains. They didn't know he was gone."

The tools she uses are available to most people: Ancestry.com, census records, property records, and others. But if someone has a common name, it can take days and weeks to pin down. Zuinglius and Lycurgus have a still-missing brother named Charles; he's going to be a lot harder to identify.

"Even if they didn't serve in the military, somebody should remember them," Gilley, who has a master's in military history, says. "I look into it, I see what they are, I saw what they were. They may no longer be that to anybody else, but to me they are more than a box of ashes in the corner."

Some funeral homes will not give over information, due to litigation fears. That is, even though the cremains lie unclaimed, there's a small chance that the family would come searching for them, and then sue when they learn the body or personal information has been given away. In the past few years, Missing in America has successfully lobbied for legislation in 25 states, Salanti says, which releases funeral homes of liability in these situations.

The Burial of (All) the Dead

Modern pressures on the military are often couched in the term "the toll of a decade of war." But here, in Arlington, that toll is measured in centuries. The joint committal service of the McCormacks and four other service members recovered by the Making in America project, marked the opening of the cemetery's ninth and largest columbarium court, an outdoor concrete garden-plaza for the committal of ashes.

Without the new, 2.5 acre, $12.9 million columbarium, the cemetery would have run out of space for ashes by 2016. (Cemetery officials say that Arlington may completely run out of room by 2050.) For now, it's 20,000 blank marble slabs; chilling to think that over the next decades they will be mostly filled.

Colvin was wearing a biker vest as the crowd milled around the columbarium, but his wife, Dianna, was in full Victorian-era funeral garb, black lace, bonnet, and all. If the McCormacks had wives (and had died during the war), this is what the women would have worn to the funeral. "Today, we are the family" is a common refrain of the Missing in America members, something Dianna is taking to literal heart. "I just wanted to be appropriate, down to the type of material, to represent the family," she said.

Initially seen as a short-term project, Salanti now wonders if the project can ever end. However many unclaimed veterans there are, a great many more are out there who were not in the military, their names also lost to history. While the Missing in America Project does not seek to get them interred, they are still added to the database.

"That's the sad crux of this whole problem: We're identifying the veterans ... because it is easy to get state laws passed for veterans," Salanti says. "But we maintain a database of everyone we inventory, and someday I'm going to go back knocking."

Dave Weigel is one of my favorite reporters, but I think this piece on Jason Richwine, intelligence research, and "race" deserves a closer look:

Academics aren't so concerned with the politics. But they know all too well the risks that come with research connecting IQ and race. At the start of his dissertation, Richwine thanked his three advisers -- George Borjas, Christopher Jenks, and Richard Zeckhauser -- for being so helpful and so bold. Borjas "helped me navigate the minefield of early graduate school," he wrote. "Richard Zeckhauser, never someone to shy away from controversial ideas, immediately embraced my work. ..."

Anyone who works in Washington and wants to explore the dark arts of race and IQ research is in the right place. The city's a bit like a college campus, where investigating "taboo" topics is rewarded, especially on the right. A liberal squeals "racism," and they hear the political-correctness cops (most often, the Southern Poverty Law Center) reporting a thought crime.

It is almost as though the "dark arts of race and IQ" were an untapped field of potential knowledge, not one of the most discredited fields of study in modern history. We should first be clear that there is nothing mysterious or forbidden about purporting to study race and intelligence. Indeed, despite an inability to define "race" or "intelligence," such studies are one of the dominant intellectual strains in Western history. We forget this because its convient to believe that history begins with the Watts riots. But it's important to remember the particular tradition that Charles Murray and Jason Richwine are working in. A brief reminder seems in order. 

Here is antebellum "race realist" Josiah Clark Nott writing in 1854 to justify slavery:

That Negroes imported into, or born in, the United States become more intelligent and better developed in their physique generally than their native compatriots of Africa, every one admits; but such intelligence is easily explained by their ceaseless contact with the whites, from whom they derive much instruction; and such physical improvement may also be readily accounted for by the increased comforts with which they are supplied. In Africa, owing to their natural improvidence, the Negroes are, more frequently than not, a half-starved, and therefore half-developed race; but when they are regularly and adequately fed, they become healthier, better developed, and more humanized. Wild horses, cattle, asses, and other brutes, are greatly improved in like manner by domestication : but neither climate nor food can transmute an ass into a horse, or a buffalo into an ox. 

Here is an excerpt from Madison Grant's 1916 study The Passing of a Great Race:

These new immigrants were no longer exclusively members of the Nordic race as were the earlier ones who came of their own impulse to improve their social conditions. The transportation lines advertised America as a land flowing with milk and honey and the European governments took the opportunity to unload upon careless, wealthy and hospitable America the sweepings of their jails and asylums. The result was that the new immigration, while it still included many strong elements from the north of Europe, contained a large and increasing number of the weak, the broken and the mentally crippled of all races drawn from the lowest stratum of the Mediterranean basin and the Balkans, together with hordes of the wretched, submerged populations of the Polish Ghettos. 

Our jails, insane asylums and almshouses are filled with this human flotsam and the whole tone of American life, social, moral and political has been lowered and vulgarized by them. With a pathetic and fatuous belief in the efficacy of American institutions and environment to reverse or obliterate immemorial hereditary tendencies, these newcomers were welcomed and given a share in our land and prosperity.... 

The result of unlimited immigration is showing plainly in the rapid decline in the birth rate of native Americans because the poorer classes of Colonial stock, where they still exist, will not bring children into the world to compete in the labor market with the Slovak, the Italian, the Syrian and the Jew. The native American is too proud to mix socially with them and is gradually withdrawing from the scene, abandoning to these aliens the land which he conquered and developed. 

The man of the old stock is being crowded out of many country districts by these foreigners just as he is to-day being literally driven off the streets of New York City by the swarms of Polish Jews. These immigrants adopt the language of the native American, they wear his clothes, they steal his name and they are beginning to take his women, but they seldom adopt his religion or understand his ideals and while he is being elbowed out of his own home the American looks calmly abroad and urges on others the suicidal ethics which are exterminating his own race.

Another from Lothrop Stoddard's 1922 work The Revolt Against Civilization and the Menace of the Underman:

In Massachusetts the birth-rate of foreign-born women is two and one-half times as high as the birth-rate among the native-bom; in New Hampshire two times; in Rhode Island one and one-half times, the most prolific of the alien stocks being Poles, Polish and Russian Jews, South Italians, and French-Canadians. What this may mean after a few generations is indicated by a calculation made by the biologist Davenport, who stated that, at present rates of reproduction, 1,000 Harvard graduates of to-day would have only fifty descendants two centuries hence, whereas 1,000 Rumanians today in Boston, at their present rate of breeding, would have 100,000 descendants in the same space of time. 

To return to the more general aspect of the problem, it is clear that both in Europe and America the quality of the population is deteriorating, the more intelligent and talented strains being relatively or absolutely on the decline. Now this can mean nothing lees than a deadly menace both to civilization and the race.

More from Lothrop Stoddard's 1921 book The Rising Tide of Color Against White World-Supremacy:

In the United States it has been the same story. Our country, originally settled almost exclusively by Nordics, was toward the close of the nineteenth century invaded by hordes of immigrant Alpines and Mediterraneans, not to mention Asiatic elements like Levantines and Jews. As a result, the Nordic native American has been crowded out with amazing rapidity by these swarming, prolific aliens, and after two short generations he has in many of our urban areas become almost extinct.

The racial displacements induced by a changed economic or social environment are, indeed, almost incalculable. Contrary to the popular belief, nothing is more unstable than the ethnic make-up of a people. Above all, there is no more absurd fallacy than the shibboleth of the "melting-pot." As a matter of fact, the melting-pot may mix but does not melt. Each race-type, formed ages ago, and "set" by millenniums of isolation and inbreeding, is a stubbornly persistent entity. Each type possesses a special set of characters: not merely the physical characters visible to the naked eye, but moral, intellectual, and spiritual characters as well. All these characters are transmitted substantially unchanged from generation to generation. 

To be sure, where members of the same race-stock intermarry (as English and Swedish Nordics, or French and British Mediterraneans), there seems to be genuine amalgamation. In most other cases, however, the result is not a blend but a mechanical mixture. Where the parent stocks are very diverse, as in matings between whites, negroes, and Amerindians, the offspring is a mongrel -- a walking chaos, so consumed by his jarring heredities that he is quite worthless. We have already viewed the mongrel and his works in Latin America.

Here is Karl Pearson in 1925 looking at Jewish immigration into Britain:

What is definitely clear, however, is that our alien Jewish boys do not form from the standpoint of intelligence a group markedly superior to the natives. But that is the sole condition under which we are prepared to admit that immigration should be allowed. Taken on the average, and regarding both sexes, this alien Jewish population is somewhat inferior physically and mentally to the native population. It is not so markedly inferior as some of those who wish to stop all immigration are inclined to assert. But we have to face the facts; we know and admit that some of the children of these alien Jews from the academic standpoint have done brilliantly, whether they have the staying powers of the native race is another question*. No breeder of cattle, however, would purchase an entire herd because he anticipated finding one or two fine specimens included in it; still less would he do it, if his byres and pastures were already full.

Far from being relegated to some musty corner of intellectual life, the Stoddard tradition, the tradition in which Jason Richwine stands, proved to be an influential force in world history. The Stoddard tradition gave us forced sterilization, "euthanasia" programs, miscegenation bans, and, ultimately, the Holocaust.

One might oppose the Stoddard tradition strictly on its tendency to birth suffering, misery, and catastrophe. But one can oppose it for simpler reasons -- its practitioners have a nasty habit of being wrong. Harvard still stands. The Jews of Poland seem to understand American ideas quite well. And it was not the darker races who threatened civilization, but the cannibal Nordics rampaging under the Nazi flag. History has been deeply unkind to Jason Richwine's spiritual ancestors. It's comforting to think that the academics who show no interest in the "dark arts" do so out of fear of the leftist cabal. More likely, they do so to avoid being associated with a specious field of study whose primary contributions to the world include justifying slavery and inspiring genocide. 

Which is not to say these authors should not be read. Pearson is especially instructive. In 1925, he claimed the Jews immigrating to Britain threatened to become a "parasitic race." Under similar thinking, Jews were subsequently subjected to college quotas throughout America. Today, the descendants of Pearson tell us that Jews are the intellectual cream of the genetic crop.

This is what Barbara and Karen Fields mean when they talk about "racecraft." Power must justify itself. When it is proven wrong, it simply recalibrates. Conditions and actions are explained away as the inalterable work of genetics. Yesterday's yellow peril becomes today's model minority. In the 1930s Jews dominated basketball because of their "Oriental background" and "flashy trickiness." Today blacks dominate it through their animal strength and agility.

You see this shifting in Weigel's own article, where we are told that Richwine is looking into "race." But Hispanics are considered an ethnic group, not a race. That is because we have trouble explaining why Matt Yglesias, Sophia Vegara, Carmelo Anthony, Rosario Dawson, and Charlie Rangel can be said to comprise a separate "race." One should also have trouble explaining why Walter White, Whoopi Goldberg, Djimon Hounsou, Jay Smooth, Mordecai Wyatt Johnson, and I are all the same "race." 

These people do share something in common -- their geographic ancestry makes them potential targets of white racism. If there is any fact we are warned away from, this is it. Richwine's theories originate from a long tradition of white racism, the tradition of Grant, Stoddard, and Pearson.  But to say this is to indict an insupportable portion of our own history and traditions. It is to remind us that the differences between us were constructed by men who sought power, and are maintained just the same.

MORE CARTOONS:
Boys in the Hood
2012.03.24
Birth-Control Control
2012.02.11
Tax Holiday
2011.12.21
Super Committee Fail
2011.11.21
Life With Steve Jobs
2011.10.06
Winning the Future
2011.09.01
New Motto for the G.O.P.?
2011.07.14
Political Animals
2011.05.18
Debt Ceiling Looms
2011.04.13
Hu Jintao, Tiger Mothers, and Human Rights
2011.01.20
The Year in Cartoons
2010.12.08
Wikileaks: The Deluge Continues
2010.11.30
Don't Ask, Don't Foreclose
2010.10.21
Mosque Allergies
2010.08.23
IraqBlue
2010.08.11
LeBron's Choice
2010.07.08
Say It Isn't So, Al and Tipper
2010.06.03
BP Recycles
2010.05.12
Fixing the Glitches
2010.05.06
Containment Policy
2010.04.29
Sketches at the Boston Tea Party
2010.04.15
Evolution of the Hipster
2010.04.05
Making History
2010.03.25
Security Check
2009.12.29
Slideshow: The Decade in Cartoons
2009.12.22
Security Update
2009.12.02
Escalation in Afghanistan
2009.09.24
The Age of Non-Innocence
2009.08.25
The New Colossus
2009.08.04
Iran-I-am
2009.06.19
Hudson Hero
2009.01.16
See the complete Sage, Ink index.

The Senate filibuster has been in the news as a tool by which the Republican Party is obstructing popular measures like background checks for gun purchasers. But another battle in the struggle against popular government is taking place three blocks from the Capitol at the E. Barrett Prettyman Courthouse, where the Court of Appeals for the D.C. Circuit sits. Nominations to that court, the second most important in the nation, have also been the subject of filibusters since 2008. Senate Republicans have succeeded in preventing President Obama from filling any of the four seats now open on this court. As a result, conservative judges on the court have been able to block a number of the administration's initiatives.

At this point, the D.C. Circuit ought to be called the Filibuster of Appeals.

We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.

In 2011, the NLRB passed a rule requiring all employers subject to its authority to post an 11-by-17-inch poster reviewing the rights guaranteed workers by the National Labor Relations Act -- which include the right to join and form unions and to advocate for better wages and working conditions. (The poster also informers workers of their right to "[c]hoose not to do any of these activities, including joining or remaining a member of a union.")

The poster clearly indicates that it is an official government notification rather than the view of management. Nonetheless, industry groups argued that the company's First Amendment rights are compromised by being "forced" to speak against its will. This is a remarkable proposition. Governments routinely require employers to post various notices, ranging from a requirement of hand-washing in toilets to notifications of civil-rights protections. And courts have upheld them in the past. In fact, as the D.C. Circuit itself admits, that very court in 2003 upheld an executive order from President George W. Bush requiring government contractors to post a notice telling employees of their rights not to join a union. "[A]n employer's right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks," it said.

Dude, that was totally then. The panel offers this (to me) completely unpersuasive distinction: the earlier case dealt only with the question of whether the President could require such a notice; the opponents of the rule argued that it was preempted by the National Labor Relations Act, which sets up the NLRB. The new rule was promulgated by the NLRB itself, the court said, and that changes the First Amendment calculus.

The panel relies on two First Amendment cases to support its decision -- West Virginia State Board of Education v. Barnette and Wooley v. Maynard. In Barnette, the Court held that the state of West Virginia could not expel Jehovah's Witness children from school if they refused to stand with their hands over their hearts and recite the Pledge of Allegiance. Justice Robert Jackson memorably wrote in Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein" In Wooley, the state of New Hampshire jailed a Jehovah's Witness for putting tape over the motto "Live Free or Die" on a state license plate. The Wooley Court reversed the conviction, reasoning that

A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."

Here's the old switcheroo: two wonderful cases dealing with lonely dissenters and the right of individual conscience have now become bulwarks against regulation of business. The poster in the current case did not require the employer to "proclaim their faith" in anything; nor did it commit the employer to supporting a "religious, political, or ideological" cause. It simply notified employers, in words clearly identified as government speech, of their rights under the law. And the Act itself, as well as the First Amendment, protects the employers' right to post signs urging workers not to join unions.

I have no doubt that the three judges on the panel are sincere in believing the First Amendment supports their interpretation; and recent Supreme Court decisions have gone a long way toward stating the marketing speech by business is as fully protected as political speech by individuals. In particular, Sorell v. IMS Health Inc. in 2010 held that data mining of physicians' prescription habits by pharmaceutical companies is protected speech, rather than a commercial transaction subject to reasonable regulation. For that reason, one can't say absolutely that only Republican nominees would have decided this case as the panel did.

Nonetheless, a different panel might at least have produced a separate opinion giving the other side. (There is a concurrence in NAM, but it is a concurrence urging an even more anti-NLRB result.) Appeals-court panels are drawn by lot, and it was luck of the draw that gave the panel three Republican appointees. Active Republican appointees outnumber Democratic ones currently 4-3.

And that brings me to the current state of the D.C. Circuit. Since Obama took office, four judgeships have opened up; filibusters have prevented the President from naming even one. If the four empty judgeships were filled, the lineup of active judges would be seven Democratic nominees to four Republican ones. The odds would have been a lot better of a different decision, or at least of a dissent. Since a majority vote of the active judges can vacate a panel decision, there would have been a chance of reconsideration by the full court sitting "en banc."

It is now a mere four months since Senate Majority Leader Harry Reid brokered a pathetic "compromise" on filibusters with his counterpart, Minority Leader Mitch McConnell. The "compromise" was supposed to make appeals-court nominations less contentious. But that was then: since January, the Senate Republicans have filibustered another highly qualified D.C. Circuit nominee, Caitlin Halligan, because as a state lawyer she once helped sue gun companies.

Obama has so far produced only one additional nominee to the D.C. Circuit. Deputy Solicitor General Sri Srinavasan, brilliantly qualified in every way, is also tuned to Republican preferences: a former clerk for Justice Sandra Day O'Connor, he worked for the Solicitor General's office under George W. Bush. Srinavasan is supposed to receive a vote by the Judiciary Committee next week; then we will see whether an excuse is found to filibuster him.

The Republican attitude toward the D.C. Circuit, however, is suggested by a bill proposed by Sen. Charles Grassley, ranking Republican on Judiciary. At Srinavasan's confirmation hearing, Grassley announced he was introducing a Court Efficiency Act that would abolish the three remaining vacancies on the Circuit. Franklin Roosevelt's court-packing plan was named the Judicial Procedures Reform Act of 1937; like that proposal, Grassley's is a sign that the fight over the courts is really a bare-knuckle political brawl.

So far, unfortunately, Obama and the Senate majority leadership have brought Nerf swords to the battle. Given what's at stake, Obama should produce nominees for the other three seats -- now, not later -- and Reid and the Democrats should announce that another Republican filibuster will prompt the so-called "nuclear option" -- a mid-session rules change to do away with filibusters on presidential nominations.

It is tempting to say that their timidity means they don't deserve to win. Unfortunately, the real losers -- in NAM v. NLRB as in Noel Canning -- are America's workers, who deserve better.

I wanted to send you a quick note about the thread today, with some added economics. I could/should just post it as a comment, but it's quite late for that thread I'm afraid. You mentioned in the thread that "the vast majority of these guys found themselves buying houses way beyond the appraised value." A house appraisal is only meaningful in the context of the neighborhood, and the switch from an all-white neighborhood to an all-black neighborhood would have changed the appraisal substantially -- which is of course a large part of the point. 

However, that's separate than how economists think about price and value, and I think adding the econ perspective actually makes the situation worse. I'd think about it like this: in Chicago at the time, there were two fundamental housing markets: one for whites, and one for blacks. 

Removing the black population from competition within the white market was a(nother) large transfer of wealth to whites: whites faced less competition for the large supply of houses, which actually kept white house prices lower than they would otherwise be. 

This enabled a large number of whites to move up the ladder into the middle class. On the other hand, the legal framework, enforced by terror, that prevented blacks from moving into these neighborhoods meant two things: a small supply of houses in the "black housing market", and a large and increasing demand. 

This would have kept prices quite high -- much higher than any appraised value. Any black family would be bidding not against the white speculator, but against the large number of other black families looking to get a house. Because the speculators were few and the black families were many, prices were kept quite high in these black neighborhoods. The rules you wrote about obviously kept these high prices from being realized by black sellers, as blacks so rarely came to own the homes they were paying for.

Devin's last point is basically how the the history actually played out. In the overcrowded ghettoes of Chicago, there was a pent-up demand for housing. The money was there. And the money was pilfered.

I understand why academics have spent so much time studying the black poor. But in many ways, if you want to test how true this country has been to its founding creed, the black middle class is a fertile field of study. When you look at the early black home,buyers in mid-20th century Chicago, you are looking at people who did not exhibit the kind of "pathologies" pundits routinely inveigh against. Marriage rates are high. Men are working. In some cases, women are homemakers. In other words, you have the conservative fantasy of what an American family should be.

These American families were swindled by public policy, white terrorism, and private action. This was done to advantage people who happened to look different from them. And we are only talking about housing here. We are not talking about school segregation. We are not talking about job discrimination. We are not talking about business loan discrimination. We are not talking about the shameful implementation of the G.I. Bill. Or the sharecropping system in the South. This is but one front in the long war. 

For young black people growing up in that era, what was the message? America's promise is that everyone who plays by the rules will have a chance to compete. If you are a black boy, or a black girl, and you watch your parents play by the rules while everyone else cheats, what do you conclude? How do you feel when your parents exhibit middle-class values and your country rewards them with pariah-class treatment? How do you then evaluate your own prospects? How do you see your country? Might you then look around, survey all the double standards and hypocrisy, and find yourself not so proud?

The recent public school test-cheating scandals in Atlanta and Washington D.C. are insidious not only in their impact on their own communities, but also in feeding a broadly held misperception that urban school districts are beyond salvaging. Reports suggesting progress in any city are now more likely to be dismissed out of hand as the product of selective data collection or outright misconduct. That's what makes the case of Cincinnati, Ohio, so interesting and instructive.

The Cincinnati school district has improved both test scores and graduation rates since 2003 while -- unlike Atlanta and Washington -- transparently pursuing highly collaborative reform strategies that, counter to the current trend, don't rely on rigid hierarchy and punitive accountability. Because Cincinnati has implemented proven instructional approaches while nurturing a culture in which administrators, teachers, parents, and community groups closely communicate and work together as teams, the case serves as an important counterweight to the public school stories that have been dominating the news in the past few years. It also can serve as a roadmap for reversing course from the high-pressure tactics that gave rise to the cheating scandals and led to little progress elsewhere.

Beginning around 2003, when Cincinnati's test score results were on par with Ohio's other struggling urban school districts, it began to break away from the pack, and in 2010 became the first city to receive "effective" ratings on the Ohio District Report Card. Its strong results have generally persisted. Scores on its 11th grade graduation tests in 2011-2012 are comparable to state-wide averages, which include wealthier suburban districts, and are well above the levels for other urban Ohio districts. Those gains occurred even as the city's demographic composition held roughly steady over the past decade. Its childhood poverty rate is among the nation's highest.

The core of Cincinnati's remarkable success is a data-driven collaborative strategy to promote good teaching and learning in ways that reject almost all of the current fashions of school reform. A good example of Cincinnati's approach is an elementary school-focused program that launched in 2009 under newly promoted Superintendent Mary Ronan. Called the "Elementary Initiative: Ready for High School," it has focused on revitalizing the district's 16 worst-performing elementary schools, some of which had been struggling for more than a quarter century. At the outset of that effort, administrators conducted an audit of those schools to evaluate the sources of their problems. What the auditors found was that a wide variety of instructional approaches (Montessori, Success for All, Direct Instruction, etc.) were not being followed as designed in classrooms. They also saw that many of the schools taught English for less than 45 minutes a day, that teachers were partial to whole-group instruction instead of breaking the class into smaller groups, and that testing data was not being used for any practical purpose.

Deputy Superintendent Laura Mitchell, who leads the elementary initiative, worked closely with other administrators and "lead teachers" who were enthusiastic about revitalizing the schools to develop a new research-supported curriculum and approach to instruction. Those changes included 90-minute blocks of literature-rich units, small-group activities with teachers rotating among students, and reorienting teachers' and administrators' approach to test results, so that they could be used as diagnostic tools for identifying particular areas in which students need greater support.

In addition, using federal stimulus money, the district sent the principals and lead teachers from the targeted schools together to attend leadership-training workshops at the University of Virginia. One critical area of emphasis of the Virginia program is a team-based approach to problem solving, in which administrators and teachers become accustomed to sharing ideas with minimal confrontation or defensiveness. In contrast to the norm where teachers are isolated in their own classrooms, Cincinnati's personnel learned to welcome ongoing feedback focused on improving the quality of instruction students receive. The stimulus money also financed what Ronan called a "fifth quarter," which extended the school year by a month, providing additional time for enrichment programs like art and music classes.

Another important element of Cincinnati's success story has been close collaboration with community service providers, to reach those areas of a student's life that strongly affect academic performance, but which schools generally cannot control. Beginning in 2007, more than 300 leaders of local organizations in the greater Cincinnati and Northern Kentucky area agreed to participate in a coordinated effort called Strive. Participating organizations are grouped into fifteen different "Student Success Networks" by type of activity, such as early childhood education or tutoring. Representatives of each of the fifteen networks meet with coaches and facilitators for two hours every two weeks, developing shared performance indicators, discussing their progress, learning from each other, and aligning their efforts to support each other. An article in the Stanford Social Innovation Review highlighted Strive as a model worthy of emulating, with its distinctively centralized infrastructure, dedicated staff, structured processes, and close relationships with school personnel and parents.

Four years after the elementary initiative was launched, all 16 targeted schools have emerged from what the Ohio accountability system labels "academic emergency," with 12 attaining the mid-level "continuous improvement" ranking or higher. There's little reason to suspect the validity of those scores because the school system has been completely open about the changes it has undertaken, which have hewed closely to strategies that research has shown to work. Though Cincinnati was one of the districts recently mentioned by Ohio state auditors concerned about data for certain students disappearing, the accompanying report makes clear that in Cincinnati's case these concerns are confined to technical issues over transfer students' data: There is no indication of any systematic attempt to cheat, nor would the cases identified have had much of an impact on the district's scores overall.* University of Virginia personnel, journalists, and community service providers affiliated with the Strive initiative have all directly seen the positive transformations affirmed by the test results.

What can other urban school districts do to replicate these results, and move away from the highly confrontational reliance on market-based incentives that have dominated educational policymaking in recent years? First, it is vital to build trust between school administrators and teachers unions. It is no accident that Cincinnati Superintendent Ronan and the city's teachers share mutual respect. Ronan, 59, spent her entire career in Cincinnati, beginning as a middle school math and science teacher in 1976. Later she became an elementary school principal and climbed the administrative ladder while forming strong relationships along the way. Julie Sellers, the president of the Cincinnati Federation of Teachers, told Education Week: "[Ronan] probably knows more teachers than any superintendent. I think it has been beneficial for her to get buy-in. Teachers feel comfortable talking to her. There's nothing we don't do in Cincinnati. These are the best urban, high-poverty schools in the country."

Studies by the Consortium on Chicago School Research and the National Center for Educational Achievement, as well as Berkeley public policy professor David Kirp's new book on another successful high-poverty school district in Union City, N.J., affirm that deep collaboration between administrators and teachers is an essential ingredient in schools that demonstrate sustained improvement in student outcomes. It not sufficient, though. Also required are effective approaches for developing coherent instructional systems with active teacher input; close attentiveness to testing data to identify problems students are having so they can be provided with extra support; and strong connections between the schools, parents, and community groups. The use of tests as a tool for improving instruction lies in stark contrast to the current focus on using test results to punish or reward teachers.

Through enormous effort and years of perseverance on the part of Cincinnati's leadership and stakeholders, all of these forces have come together to produce hard-earned progress. Cincinnati shows that an urban school district can succeed -- without cheating. The first steps toward emulating that success, however, will require walking back from the animosity toward teachers unions and coercive sanctions that have derailed public education policy in the United States.

*This post has been updated for clarity.

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men--as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power - a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Finally, citizenship involves a legal and social relationship with the government - a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty "affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process."

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Before the Willie Manning case moves off your radar screen again, before the media circus moves on to another capital case and another flurry of last-minute appeals, I want to address a few themes that inevitably come up when a condemned prisoner, a convicted murderer, is given any measure of relief from the courts. These issues directly track the questions now raised in the Manning case -- the state's failure to test DNA, questions about the scientific evidence that was introduced at trial, the credibility of key witnesses, the impact of race on jury selection -- but they apply more broadly to other capital cases.

1. Why are you defending a murderer? Anyone who writes about capital cases, anyone who criticizes prosecutors or judges for failing to protect the due-process rights of death-row inmates, almost immediately faces this question from readers. The answer is simple, and I'll answer it for myself alone: I am not defending a murderer. I am instead pushing the men and women in public office who run our justice systems to do better and do right by a rule of law. You can push for the latter without embracing the former. Another way to put it is: I do not focus in my writing on whether a death row inmate "deserves" to live or die. That's not up to me. I try to focus instead on whether the government (which operates in my name) has lived up to its constitutional obligations.

Take Willie Manning as an example. I don't know him, and I obviously don't know whether he committed the 1992 murders for which he was almost executed yesterday. I am aware of the allegations of this case, which are gruesome, and of the fact that he's been convicted of other high crimes. It is entirely possible that he is guilty, beyond all doubt, but the point of focusing on his case, from among the hundreds of other capital cases in America today, is that the evidence against him is crumbling while prosecutors block the testing of other evidence which could definitively solve the case. In my view, executing someone based on dubious evidence reflects more on the executioner than it does on the condemned. I don't have to be willing to vouch for Willie Manning to argue that Mississippi should show more evidence before it is allowed to kill him.

2. Searching for purity in capital punishment. Another related question that is inevitably asked in cases like this is: How can one be in favor of capital punishment, or at least recognize it as a valid sentencing option, and yet be so critical of certain death penalty cases? Again, there is no reason for these two concepts to be mutually exclusive. Like many other people tolerant of capital punishment, I believe that it is legal and moral only when it is implemented in circumstances that are fair and just and based upon the sort of due process too often missing from the capital cases I cover. And so my criticism of these cases is designed not to undermine the concept of capital punishment itself, but to expose the wide gulf between how the death penalty is implemented and the way our judges and politicians like to pretend that it is implemented.

Take the Manning case again. He may be guilty. But whether he is or he isn't it doesn't excuse the conduct of the trial judge in the case, who allowed prosecutors to use peremptory challenges to remove black jurors from Manning's panel (he's black and was charged with murdering two white students) because they read "black" magazines. It doesn't excuse the FBI agent who testified inaccurately about the ballistics and hair fiber evidence in the case. It doesn't excuse the prosecution's use of an informant who now says that Manning never confessed to the crime. A murder defendant may indeed be beneath contempt. But it doesn't absolve the government from its responsibility to honorably prosecute cases. To say about a capital defendant "he deserves no better" diminishes our justice system far more than it diminishes the defendant.

3. The meaning of guilt and innocence. What is happening in the Manning case, what happens often in capital cases, is that the vested interest state officials have in defending an old conviction becomes more important than the interest they once had in searching for the truth of a criminal case. At a certain point, prosecutors and judges say "enough is enough" and close themselves off to the possibility that old cases can have new endings. It is human nature, I suppose. In the name of "finality," the "new" truth is sacrificed at the altar of the "old" truth, regardless of the relative merits of one over the other. There is value in respecting old judgments, of course. But, at a certain point, the emergence of new evidence, or revelations which cast doubt on old evidence, makes the old verdict hardly worth defending. It is the government's failure or refusal to recognize this changed calculus that I find objectionable -- even unconscionable.

As we see in the Manning case, the result of this changing calculus renders absurd many of the government's arguments. Why is it more important to execute Manning than it is to find out whether someone else may have committed the crime? Why is it more important to execute him than find out whether the jailhouse informant who incriminated him in 1994 was (as he now says) lying to get a deal from prosecutors? Why is it more important to execute Manning than it is to find out whether he would be convicted today without the benefit of the inaccurate trial testimony provided by FBI "experts"? Capital cases in particular require a level of accuracy -- the integrity of the result, you could call it -- which is missing here.

4. The role of DNA. The growing accuracy and use of DNA testing has transformed the landscape of criminal law. It has resulted in the exoneration of thousands of innocent people, including 306 who had been convicted. And its use in criminal cases -- its use in objectively answering questions the justice system cannot objectively answer for itself -- resonates broadly with readers. Whenever I write about a judge's failure or a prosecutor's refusal to test DNA the response is nearly universal: If the testing is available, why don't they just do it? Indeed, why not. When prosecutors and judges contort themselves with technical justifications not to conduct such testing, as they have in the Manning case, it's unacceptable. In these circumstances, what really chaps me is the willingness by public officials to be so willfully satisfied with not knowing what the best evidence available might tell them.

That said, it is entirely possible that the DNA and fingerprint testing of the evidence in the Manning case will definitively incriminate him. I don't think that any lawyer on either side of the case can discount that possibility. I know I haven't. It would not be the most illogical result here. But if that happens it won't mean that critics of the Manning verdict were wrong to challenge it. It won't mean that the criminal justice system has been cheapened or that we all were fooled by the defendant. It will mean instead that Manning's capital conviction can at last be fully respected. Everyone with a stake in the outcome of these cases -- prosecutors, witnesses, jurors, victims, and defense attorneys -- should aspire to having such confidence in a verdict before an execution.

5. The larger view. As I have written before, there is coming soon in the law a reckoning on capital punishment in America. Either there is going to be more fairness and accuracy in death penalty cases, either prosecutors and lower court judges are going to do more to protect the rights of capital defendants, or the United States Supreme Court is again going to preclude it as a sentencing option. The Court is one vote away from such a remedy, and if that happens it will be largely because of cases like the Manning case. It's not just about the law and the facts of these particular cases. It's not just about standards of appellate review. It's about the attitudes of the men and women whose job it is to implement the law.

For example, look at the reaction yesterday from Mississippi Justice Michael Randolph. Confronted with the Justice Department's recent conclusions that unreliable scientific evidence was introduced at Manning's 1994 trial, Justice Randolph did not acknowledge how such grim revelations might undercut the accuracy of Manning's conviction. He did not vote to delay the execution to better evaluate the new development. Instead, he ranted about the Justice Department's role in the "Fast and Furious" gun scandal. This reaction says a great deal about him as a person and as a judge, of course, but it says even more about why polls tell us that more Americans are becoming uncomfortable with the death penalty. Go figure: Willie Manning may end up being a poster child after all, but for reasons few would have guessed 20 years ago.