Risk and Blame

October 18, 2017
Posted by Jay Livingston

Tweeters were throwing shade at Mayim Bialik this week for her op-ed in the New York Times. In that article, Bialik said that in her Hollywood career she had never encountered the kinds of sexual predation and harassment that Harvey Weinstein’s victims are reporting. The reason, she said, was that she was not as physically attractive.

I have also experienced the upside of not being a “perfect ten.” As a proud feminist with little desire to diet, get plastic surgery or hire a personal trainer, I have almost no personal experience with men asking me to meetings in their hotel rooms. Those of us in Hollywood who don’t represent an impossible standard of beauty have the “luxury” of being overlooked and, in many cases, ignored by men in power unless we can make them money.

The charge leveled against Bialik for this was victim-blaming. 

(Click on an image for a larger view.)

Bialik also had many supporters who said that her accusers had misread the Times column. But she quickly came around and issued a statement (on Twitter I think) that sounded as though she had cribbed it directly from Eve Ewing (Wikipedia Brown)..

God forbid I would blame a woman for her assault based on her clothing or behavior. . . .How you dress and how you behave has nothing to do with being assaulted. Assault and rape are acts of power, they’re not acts of sexual desire. There is no way to avoid being the victim of assault by what you wear or the way you behave.

The amazing thing about the dispute is how civil it was. Yes some comments were foolish or fallacious. But there was little of the snark ranging from snide to vicious that plagues so many Internet conflicts. (I wrote a blogpost a while ago called  “The Tragedy of the Comments.” The title said it all.) And nobody, as far as I know, mentioned Hitler. Nor has Bialik (again AFAIK) gotten any death threats. Maybe that’s because the participants were mostly women. But maybe it’s also because most of the participants on both sides share the same politics and the same general outlook.

The apparent conflict arises because they cannot separate the empirical from the moral. What can a woman do to change her risk of victimization? That is an empirical question. Who is to blame for sexual harassment and assault? That is a moral question.

Bialik’s critics seem to think that you shouldn’t even ask the empirical risk question, for to do so leads to the wrong answer on the moral blame question. They also think that they already know the answer to the empirical question. As the chastened Bialik says, echoing the views of her critics, “How you dress and how you behave has nothing to do with being assaulted. . .  There is no way to avoid being the victim of assault by what you wear or the way you behave.” This is just a few days after she said that she avoided sexual harassment and worse by the Harvey Weinsteins of Hollywood precisely by how she looked and behaved. 

She was right the first time. It seems obvious that when male predators have a choice – and men in positions of power, men like Weinstein, Trump, Ailes, et al., do have a choice – they choose victims who are physically attractive. In the wider world outside the corridors and hotel rooms of power, not all women are equally likely to be victimized. Data from the national victimization survey by the Bureau of Justice Statistics shows that age, marital status, and income make a difference.



Bialik’s statement can be true only if when she says “there is no way to avoid being the victim,” she means one hundred percent certainty. Yes, some women will be victimized regardless of appearance and behavior. As the BJS survey shows, even among women 65 and older, 2 in every 10,000 reported being victims of rape or sexual assault.* But younger women face a far higher risk of victimization. Does that mean we blame rape victims for being young? Or poor? (Unfortunately, some people do blame them for being unmarried.**)

Or perhaps Bialik means that once a predator has decided to victimize a woman, his power (physical, economic, social) may make it nearly impossible for her to avoid the assault.

In an ideal world, a woman’s appearance and behavior would make no difference in her risk of being a victim of sexual assault. In an ideal world there would be no sexual assault. The way that both Bialik and her critics would like to move towards that ideal is by men changing their behavior. How that is to be accomplished is huge empirical question. The good news is that the BJS survey also shows that rates of rape and sexual assault have decreased greatly over the past quarter century.

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* This estimate is based on a very small number of cases, ten at the most. But while the estimate may be unreliable, the point is that at least some older women were victims.

** See this post from 2014 on the idea that part of the marriage contract is the protection of the woman from sexual predation. The post ends with a quote from Philip Slater: “Before long, of course, every protection contract becomes a protection racket: ‘Give me what I want and I will protect you against me.’”

Thelonius Monk – born October 10, 1917

October 10, 2017
Posted by Jay Livingston

Happy 100th Birthday!

Musicians often refer to songs by jazzers as “tunes.” Whose tune is that?” one musician might ask another who has just played something that’s not entirely familiar?   Standards (by Porter, Gershwin, Rodgers, Arlen, et al.) can be “songs,” maybe because they come ready-made with lyrics. But  numbers by jazz musicians are usually “tunes” – Bud Powell tunes, Bird tunes.

The works of a few jazz greats are spoken of as not just tunes but also as “compositions.” Ellington, of course, who wrote works that lent themselves to full arrangements for his orchestra.  But also Monk, even though most of his compositions were originally vehicles for a trio or quartet or even just solo piano. Most of these are in the standard 32-bar format, but for some reason I cannot quite explain, while Dizzy’s “Night in Tunisia” is a tune, “Round Midnight” is a composition.

It’s fairly easy to understand why a tune is a composition when it has notes in addition to the melody that are essential. “Ruby My Dear,” “Crepuscule With Nellie,” “Monk’s Mood,” and others. But even Monk’s tunes that can be written as a single-line lead-sheet are thought of as compositions. “Well, You Needn’t” is a 32-bar AABA tune, and the A section has only two alternating chords, F and G-flat. Yet it’s a “composition.”

Here’s “Crepuscule With Nellie,” recorded in 1957.


The album is “Monk’s Music” – Coltrane and Coleman Hawkins on tenor, Gigi Gryce alto, Ray Copeland trumpet,Wilbur Ware bass, Shadow Wilson drums. I wish I knew more about this recording date. Except for Coltrane and perhaps Shadow Wilson, these were not people Monk was playing regularly with.

Connie Hawkins — 1943 - 2017

October 8, 2017 
Posted by Jay Livingston

(Click for a larger view. You can’t really tell from this picture, 
but it’s just possible that Clyde made the shot.)
The opening chapter of  Pete Axthelm’s  The City Game (1970) is about the Rucker Tournament in Harlem – playground basketball at its best. Even NBA (or at the time ABA) players would show up. Julius Erving, Nate Archibald, Wilt. The chapter is also about Connie Hawkins

Axthelm was an excellent sports journalist, and it’s a wonderful chapter. At the risk of tl;dr and copyright violation, I’m going to quote a fair amount of it.

Axthelm’s informant is Pat Smith, who had played at Marquette. As they walk by the playground where Rucker used to take place, Smith points to a tree. “When I was a kid, I’d climb up into that tree. I’d stake out one of the branches early in the morning and just sit there all day.”

“It was the kind of game that established citywide reputations. Clinton Robinson was playing. Jackie Jackson was there. So was Wilt Chamberlain, who was in his first or second year of pro ball at the time....” He savored each name as he spoke it; this was a very special honor roll. Some of the names, like Robinson’s and Jackson’s, would be familiar only to the ghetto kids who once worshiped them; others, like Chamberlain’s, would be recognized by every basketball fan. But to Smith and many others they were all gods, and their best games were Olympian clashes. “Chamberlain and Robinson were on the same team along with some other greats, and they were ahead by about 15 points. They looked like easy winners. Then, up in the tree, I heard a strange noise. There were maybe four, five thousand people watching the game, and all of a sudden a hush came over them. All you could hear was a whisper: ‘The Hawk, The Hawk, The Hawk is here.’ Then the crowd parted. And the Hawk walked onto the court.”

Axthelm interweaves Smith’s account of the game with backstory about Rucker and about Hawkins – Brooklyn Boys High, U of Iowa, the scandal and suspension, the Globetrotters (for godssake, the Globetrotters – thanks NBA), the lawsuit against the NBA. You can read about all that in the obits today. (Try Richard Goldstein in the Times.)

Then back to the game.

“The crowd was still hushed as they called time out,” Smith continued. “They surrounded the man. They undressed the man. And finally he finished lacing up his sneakers and walked out into the backcourt. He got the ball, picked up speed, and started his first move. Chamberlain came right out to stop him. The Hawk went up-he was still way out beyond the foul line-and started floating toward the basket. Wilt, taller and stronger, stayed right with him- but then The Hawk hook -dunked the ball right over Chamberlain. He hook -dunked! Nobody had ever done anything like that to Wilt. The crowd went so crazy that they had to stop the game for five minutes. And I almost fell out of the tree.”

But, Smith says, one move, no matter how spectactular does not close out a game. It takes it up a level.. Chamberlain, 7' 1" and strong, stuffs two-handed over Hawkins.

“By then everybody on the court was fired up-and it was time for The Hawk to take charge again. Clinton Robinson came toward him with the ball, throwing those crazy moves on anyone who tried to stop him, and then he tried to loft a lay-up way up onto the board, the way he had done before. Only this time The Hawk was up there waiting for it. He was up so high that he blocked the shot with his chest. Still in midair, he kind of swept his hands down across his chest as if he were wiping his shirt-and slammed the ball down at Robinson’s feet. The play seemed to turn the whole game around, and The Hawk's team came from behind to win. That was The Hawk. Just beautiful. I don’t think anybody who was in that crowd could ever forget that game.” 

“Contracts Freely Entered Into” or “An Offer He Couldn’t Refuse”?

October 6, 2017
Posted by Jay Livingston

On Monday, the Supreme Court heard arguments about arbitration clauses in the contracts that consumers and employees sign. I don’t know how many times I have clicked on “I agree,” but one of the things I’ve probably agreed to was arbitration.

Imagine that a company is adding a small and almost hidden fee to the bills of all its customers. If I notice it, and if I complain, the company might give me back the few dollars it has scammed me out of over the past several months. But they’ll keep the money that thousands of less vigilant customers have paid. Or maybe they won’t do the right thing. I could file a lawsuit. But even the cheapest lawyer would cost far more than the amount of money I might get back.

The way to stop the scam is for some ambitious lawyer to file a class-action suit on behalf of all the victims. But it turns out that all of us have clicked “I agree.” We will each have to settle the dispute in individual arbitration. No class action. Me vs. Wells Fargo. Guess who’s going to win.
       
It’s the same for workers whose employment contracts have arbitration clauses.

Earlier this year, Susan Fowler sparked an uproar in the technology industry with allegations of sexual harassment and gender discrimination at Uber. An internal investigation led to more than 200 employee complaints and at least 20 terminations. But Fowler may not be able to sue Uber in court. When she joined the ridesharing company, Uber required her to resolve any disputes through private arbitration and waive her right to participate in a class action. (Wired)



Sunday night at 10:00 – just a few hours before the Supreme Court heard the oral arguments – “The Deuce,” had a memorable scene about individual arbitration. The show has several interwoven plot lines, all set in the grittier regions of the 1970s New York City ecosystem. In the blue-collar biota, Bobby is in charge of paychecks at a construction site. His brother-in-law, a sleazo named Vinnie who knows some mob guys, suggests that instead of handing out paychecks they become in effect a check-cashing service. The worker signs over his check and receives cash minus a 5% cut. The workers will be OK with it. Pay comes at the end of the day on Friday, the workers want cash for the weekend, and the banks are closed till Monday.

Except one of the workers, Bill Schmidt, wants his check for the full amount. Word of this gets around to the mob guy. He comes to the construction site with his enforcer, has Schmidt called aside, and supervises the mob version of individual arbitration – the goon beats Schmidt brutally.

I doubt that Justices Gorsuch or Roberts or any of the others were watching “The Deuce,” and if they were, I doubt that they saw a connection. After all, there are obvious differences between Uber and the Gambino family. MasterCard is not the Mafia. Wells Fargo didn’t beat up their employees who were reluctant to join in the scam. Wells Fargo just made it impossible for them to get jobs in banking.

We all know the most famous case of a contract signed under a power imbalance.




The important similarity is the discrepancy in power. At some point, that power difference makes it ludicrous to talk about “contracts freely entered into.”

When there are only one or two cable providers or credit card companies, and they all have the same provisions in their contracts, how meaningful is “I agree,” especially when these companies have armies of lawyers? They may also have on their side the Republican-appointed majority of the Supreme Court.