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Bring me a scapegoat to destroy: babies, blame, and bargains

By Matthew Flinders

When reading this week’s coverage of the independent report into the regulation of Morecambe University Hospital Trust by the Care Quality Commission (CQC), I could not help but reflect upon the links between this terrible episode in public sector management and Stanley Cohen’s famous work on moral panics and folk devils. The public, the media, interest groups, politicians, vaunted ‘experts’ — just about anyone and everyone — lined-up to join the ‘moral barricade’ to decry the failure of the CQC to intervene in Morecambe Bay. An interesting element of this social outrage was the manner in which, as Cohen’s thesis would suggest, a very specific ‘folk devil’ was quickly identified in the form of the three senior officials (now identified as Jill Finney, Cynthia Bower, and Anna Jefferson).

The three officials were accused of putting political convenience above the care of newborn babies. A process of full-blown demonization has subsequently occurred in which the three women are now the focus of online and off-line threats to the extent that they have been forced to leave their homes and go on the run. The three women have become unfavorable symbols for a set of social concerns that run far deeper than this scandal — a perceived culture of secrecy within the NHS, and healthcare demands outstripping resources. As a result, as with all folk devils, all mention of these women now revolves around their central and exclusively negative features.

My point here is not to deny that a tragedy has occurred. The Secretary of State for Health’s comment that ‘what happened at Morecambe Bay is above all a terrible personal tragedy for all the families involved’ fails to capture the raw pain, the complete physical and psychological numbness, felt by a parent at the loss of a child. My point revolves around the manner in which we as a society have dealt with this tragedy. Is it simply too easy to create and then destroy a folk devil? Could it be that the tragedy actually points to the existence of a set of issues that no one is willing to take on? Indeed, if the existing research and writing on moral panics and folk devils illustrates one thing, it is that the link between the demonized individual and the actual focus of public concern is frequently tenuous and often non-existent. Scapegoats are created to act as lightning rods for broader social concerns.

For those offended by any suggestion that the senior staff of the CQC might have been unfairly pilloried let me be clear about my position. Something clearly went wrong. The regulatory system failed. The three staff at the top of the CQC must be held to account and accept some responsibility. The grit I want to throw in the ointment is a question regarding the apportionment of blame, and the existence of annoying little things called facts and due process.

The facts — if a contemporary social scientist can use such a term — appear to be this: the three senior staff in the CQC are accused of destroying and suppressing a document that outlined the failings in care at the maternity unit of University Hospitals Morecambe Bay. Yet the document still exists, and all three of the staff deny that there was any attempt of a cover-up. As Ms Finney told BBC Radio 4’s Today Programme ‘There was not a decision [at that meeting] to delete a report nor was there an instruction’. Last week’s independent report by Grant Thornton created more heat than light in terms of whether a ‘deliberate suppression’ of an internal CQC memo in Morecambe Bay actually occurred and even explicitly states ‘this allegation has been denied by the person who is alleged to have given an instruction to delete this report’. The report found no ‘smoking gun’ and Ms Finney has stated on record that the report was ‘the first thing’ she pointed out to Grant Thornton when they were brought in to conduct an external review. Although redacted in the initial version of the independent review by Grant Thornton, the CQC quickly caved in to public pressure and identified the women. Unable to contribute to the review or read the report prior to publication it is hard not to have some sympathy for Cynthia Bower’s view that she was ‘hung out to dry’. ‘The first time I saw the final report was when I read it online on Tuesday night,’ Jill Finney has stated, ‘and by Wednesday morning the media feeding frenzy had begun’. Could it be that in our rush to apportion blame and claim scalps we have lost our capacity to learn from mistakes and really understand what happened?

In order to begin answering that question, let me throw three more issues into the debate. The first is the issue of complexity. Put very simply, the CQC is expected to regulate an incredibly complex network of institutions but with relatively limited resources. A number of scandals since 2009 have highlighted deficiencies in terms of the CQC’s management, resources and regulatory scope — but nothing was actually done. It highlights the manner in which the problems were arguably systemic rather than individual, and therefore it might be too simple to blame just two or three people.

The second point highlights the political dimension of this scandal and exposes a degree of naivety. The managers of any public sector organization — be they schools, hospitals, prisons or regulators — will inevitably keep one eye on public perception and media management when dealing with any significant matters. Modern politics is attack politics and public sector organizations now operate in a low-trust/high-blame environment. There is a strong punitive element to any crisis and for most public servants accountability means blame.

And behind this (and thirdly), lies an implicit level of resentment over the perceived high levels of public sector remuneration at the highest level. Could the price of a senior salary actually be an expectation of total infallibility? This brings us back to the issue of naïveté and what has been termed ‘the new public service bargain’. The old public service bargain was forged around a job for life, political anonymity, a relatively low salary but an excellent pension scheme. In the new public service, by contrast, a salary far higher than the Prime Minister’s is the price you pay for political visibility, job insecurity, and the knowledge that if something goes wrong the buck will stop with you.

Maybe someone forgot to tell Cynthia Bowers about the ‘new public service bargain’?

Matthew Flinders is Professor of Parliamentary Government & Governance at the  University of  Sheffield.  Author of Defending Politics (2012), you can find Matthew Flinders on Twitter @PoliticalSpike and read more of Matthew Flinders’s blog posts here.

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Image credit: Roll of Newspaper. © JohnnyLye via iStockphoto.

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Are we alone in the universe?

By David Wilkinson

As a scientist and a theologian I am intrigued by the continued fascination with questions of aliens. In Superman’s new reboot, Man of Steel, Jonathan Kent says to Clark: “You’re the answer, son… to ‘are we alone in the universe?’” Of course, he is not the first parent to conclude that their children are not of this planet, but he does raise one of the biggest scientific questions of our time — are we alone?

However, are aliens science fiction or science fact? World UFO Day on the second of July wants to celebrate the possibility that we are a visited planet. Recently, the UK’s National Archives recently released documents covering the two years of the Ministry of Defence’s UFO Desk before its closure in 2009. Do drawings, photographs, and written descriptions of aliens and their spacecraft represent a conclusive answer?

While much of the public discussion of whether we are alone in the Universe is dominated by these images of science fiction or fascination with X-files conspiracy theories, scientists have in the last decade made considerable progress towards this big question.

Most prominently is the work which has led to the ‘daily planet’, that is, the fact I have a smartphone app which updates daily on the discovery of numerous planets outside of our solar system. The number of these exoplanets is now in the thousands and some may be Earth-like in their temperature, atmospheric composition, and their location orbiting stable stars. In the early 1990s we had no evidence for such planets, and we were unsure whether the Sun’s planetary system was a rare occurrence. Further, there was pessimism about the possibility of detecting exoplanets even if they were there. Stars emit a thousand million times more light than even the largest planets such as Jupiter. It is like picking out a light bulb beside a searchlight.

Brilliant new observational techniques have transformed this scene. First, a star should ‘wobble’ due to the gravitational pull of an orbiting planet. This can now be seen by the Doppler shift on the wavelength of light of the star, as an unseen planet tugs the star back and forth. This radial velocity method gives the radius of the orbit and the minimum mass of the planet. Second, if you were observing our solar system from far away, the movement of Jupiter in between your line of sight to the Sun would dim the Sun by one part in a hundred. NASA’s Kepler mission has been using this transit technique to search for planets around 150,000 stars since its launch in March 2009. It uses a specialized 0.95 metre diameter telescope called a photometer to measure the small changes in brightness caused by these passing planets. This remarkable instrument has been extremely successful in discovering new planets and identifying planetary candidates. The technique yields the orbit, the mass and the size of the planet. Then, from the orbit of the planet and the temperature of its star, the temperature of the planet is indicated. This information is very important as it indicates whether the planet is in the so-called ‘habitable zone’, where life could originate and evolve. In December 2011, Kepler 22b became the mission’s first confirmed planet in the habitable zone of a sun-like star: a planet 2.4 times the size of Earth.

So, it begins to seem that most stars have planetary systems. Thus, if there are a hundred billion stars in each of a hundred billion galaxies, then some will say that there must be another planet capable of life out there.

Yet we need to be cautious about thinking that the Universe is teeming with intelligent life. A planet needs to be ‘just right’ for life to evolve.  In addition, it is a long way from an amoeba to an accountant (or perhaps not!). There could be lots of bacteria but it may have not evolved to intelligence. Perhaps the strongest argument against other life came from Enrico Fermi. He argued that if the Earth is not special in having intelligent life, then civilisations should already have evolved many times in the Galaxy, since there are billions of stars older than the Sun. If any one of these civilisations wanted to colonise the Galaxy, they could have done so by now, even using technology that is almost within humanity’s grasp. So where is everybody?

The discovery of exoplanets highlights again the complex web of arguments of whether we are alone. It also focuses the question of what would be the effect if the Search for Extra-Terrestrial Intelligence (SETI) proved successful. Some have suggested that one consequence would be the demise of religion, as it will no longer be able to maintain the uniqueness of human beings or the special revelation of God, for example in the way the Christian faith sees the life, death, and resurrection of Jesus of Nazareth.

However, just as it would be wrong to jump to conclusions about aliens on the basis of the discovery of exoplanets, it would also be wrong to oversimplify the relationship between religion and SETI. In fact, some of the first scientists to speculate about life on other planets were in part motivated by their Christian faith. Astronomers such as Richard Bentley and Christiaan Huygens in the seventeenth century, impressed by the size of the Universe, speculated about life around the millions of stars and insisted this showed God’s ability to create life anywhere he wished, and that the Universe existed not for the sole benefit of human beings but to exhibit God’s glory.

The images of science fiction, belief in aliens, scientific arguments, and religious understandings all influence one another. As a Christian theologian who spent years as an astrophysicist, my experience is that SETI may not as yet have clear answers but that a consideration of the questions strengthens both my excitement with science and with faith.

David Wilkinson is Principal of St John’s College, and Professor in the Department of Theology and Religion, Durham University. He is the author of Science, Religion, and the Search for Extraterrestrial Intelligence. He is married to Alison and has two teenage children, Adam and Hannah. His background is research in theoretical astrophysics, where he gained a PhD in the study of star formation, the chemical evolution of galaxies and terrestrial mass extinctions. He also holds a PhD in Systematic Theology where he explored the future of the physical universe.

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Image credits: (1) UFO. © mchlhills via iStockphoto. (2) Andromeda galazy (2012) by NASA. Public domain via Wikimedia Commons.

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US Independence Day author Q&A: part two

In honor of Independence Day in the United States, we asked some of our influential American history and politics VSI authors to ask each other some pointed questions related to significant matters in America. Their passionate responses have inspired a four day series leading up to America’s 237th birthday. Today Donald A. Ritchie, author of The US Congress: A Very Short Introduction shares his answers. Yesterday L. Sandy Maisel shared his view and check back tomorrow to hear from Charles O. Jones.

Richard M. Valelly (American Politics VSI) asked: Two prominent political scientists who have long observed Congress, namely Thomas Mann and Norman Ornstein, have forcefully argued that Congress is a broken branch. They point to procedural disorder, inability to complete the required agenda of Congress, and soap-box expressiveness among members as just a few facets of an institution in crisis.  What’s the strongest counter-argument to this view in your opinion?

Donald A. Ritchie: The same criticism could have been made by most Presidents of the United States going back to George Washington. Indicating more continuity than change, the leadership of both parties has operated in similar fashion for the last generation, much to the displeasure of the minority in the House and the majority in the Senate. The constitutional system of division of powers long ago was described as “an invitation to struggle.” Despite more than two centuries of struggle, we tend to forget how divisive and derogatory national politics were in the past.

L. Sandy Maisel (American Political Parties and Elections VSI) asked: Should political leaders be judged by their ability to achieve compromise solutions to divisive issues or by their willingness to stand on principle, rather than to compromise? 

Donald A. Ritchie: Whenever anyone criticized him for compromising too readily, the “Master of the Senate,” Majority Leader Lyndon B. Johnson, invariably replied: “I got the best bill I could with the votes that I had.” Legislative compromise isn’t a goal in itself but a means to achieve consensus, to gather enough votes to get the bill passed in the House and Senate, and pass muster with the president and the courts. If leaders do not seek compromise, it’s difficult to see what they could accomplish. Alternatives to compromise might be a major crisis that forces cooperation, or some groundswell of public opinion one way or the other that registers with members of both parties. Those alternatives have happened–but not often.

L. Sandy Maisel: At other times in our nation’s history when partisan rancor has dominated the policymaking process, what steps have leaders taken to move the national discussion forward?

Donald A. Ritchie: The best example is the person who ranks second only to George Washington in the paintings, statues, and busts throughout the US Capitol. You cannot walk far without encountering some depiction of Henry Clay. Although he was an overtly partisan Speaker of the House and a vigorous party leader in the Senate, and he caused his own share of political mischief, at pivotal moments in both Chambers he stepped forward to forge legislative compromises that surmounted political paralysis and kept the country together. He managed to combine partisanship with pragmatism and persuasion to get things done. Maybe all those likenesses will serve as reminders to his successors.

Charles O. Jones (The American Presidency VSI) asked : Conventional wisdom has it the out-party does not have either a single leader, or even, nationally, a means to integrate policy proposals. Yet today the Republican Party is challenged to have an “agenda” akin to a national platform. Is this a change or merely a media illusion?

Donald A. Ritchie: Parliamentary governments have the advantage of operating with shadow cabinets and alternative party agendas that make it possible for the in-comers to replace the out-goers as soon as the election results are in. In the American system, presidents have acted as national party leader while the opposition has no equivalent. But the party out of power can compensate by responding to shifting national opinions, galvanizing those who are angriest over current events or policies. That has helped the opposition party gain seats in non-presidential election years–most notably in 1994 and 2010, when the party out of power regained the majority by creating national platforms.

Charles O. Jones: What has been the effect on the congressional committees of having outside “gangs” and/or public agenda campaigns by presidents? Immigration being the most recent case, Social Security for Bush 43 (but there are many such).

Donald A. Ritchie: During this Congress there have been wistful calls for a return to “regular order,” partly in reaction to the “gangs” of like-minded legislators drafting bills outside of committees. The advantage of a committee bill, produced by regular order is that it has gone through an exacting review that has achieved some common ground through negotiations. A gang of 12 senators promoted immigration reform in 2007, but faced a barrage of amendments on the floor and ultimately failed to achieve cloture. Senator Arlen Specter regretted that the bill had not gone through a “tough and laborious” committee markup to broaden and shore up its support. But there have also been times when a committee stood as the chief obstacle, particularly in 1964 when the Senate leadership avoided sending Civil Rights legislation to the Judiciary Committee, chaired by Mississippi’s James O. Eastland. The Civil Right Act was worked out by a bipartisan coalition of senators and their staffs, operating in the backrooms of the Senate Republican leader, Everett Dirksen, in close contact with President Lyndon Johnson and Attorney General Robert Kennedy. That gang produced one of the greatest legislative accomplishments of the twentieth century.

Donald A. Ritchie is Historian of the US Senate. His books include The US Congress: A Very Short Introduction; Our Constitution; The Oxford Guide to the United States Government; Press Gallery: Congress and the Washington Correspondents; Reporting from Washington: The History of the Washington Press Corps; and Electing FDR: The New Deal Campaign of 1932.

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday and like Very Short Introductions on Facebook. Read more in the Independence Day Q&A series.

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TV got game? The NBA on NBC and other b-ball tunes

By Ron Rodman

June marks the end of a long season for professional basketball in the US—the National Basketball Association (NBA) playoff finals cap the end of a season that begins in October. American television broadcasts professional basketball games just as it does other major sports, and seeks to draw an audience for sports telecasts by dramatizing broadcasted games. To help draw audiences, many networks use dramatic theme music for the games.

Composers for television music convey drama tap by composing in different  musical styles that convey meanings associated with that style, and to target audiences interested in that particular style of music When I wrote about pro football TV themes last fall, I noted how the styles of music used for televised football games changed historically from a sort of light pop/funk style of music in early (pre-1990s) telecasts to more militant, march-like themes in current football broadcasts. For football, a militant march style is now in vogue, and the music tends to evoke an ethos of “war” or “battle” for the broadcasts, and thus attracts audiences (usually males) interested in the combative aspects of the game.

Basketball by its very nature is different from football. It is not (intentionally) violent, and athletes tend to rely more on their skill sets (shooting, passing, etc.) than on their physicality—Lebron James notwithstanding. The NBA also attracts a different type of fan from NFL fans. A report from Scarborough Sports Marketing in 2010 shows that the overwhelming majority of NBA fans are white (86%), male (64%), tend to be well-educated (25% more likely than average to have a college degree), relatively well-to-do (nearly 22% of NBA fans have an annual income of over $100 K), and of all ages (ages 18-64 nearly evenly distributed).

How does theme music for NBA telecasts attract this audience?

One example of such a theme is The NBA on TNT theme, composed by South African film composer . Rabin’s theme is an upbeat, light rock piece, played by a full orchestra with heavily engineered effects such as reverb. The theme conveys action and excitement, but in a somewhat restrained (and non-combative) style.

Click here to view the embedded video.

ABC/ESPN also broadcasts NBA games, and uses a theme song by Utah native Lisle Moore. The tune is a bit more funky, but still uses an electronically-modified traditional orchestration in a light rock style, not dissimilar to Rabin’s piece.

Click here to view the embedded video.

Perhaps the most famous NBA theme is the NBA on NBC theme composed by John Tesh, the famous “New Age” composer/pianist and former co-host of TV’s gossip show, Entertainment Tonight. Tesh’s theme, which he titled “Roundball Rock,” is also a driving light rock piece that uses electronically manipulated orchestral instruments along with pop music staples like drum set, electric bass, etc. It’s minor-key melody conveys action and excitement, with a touch of the dramatic.

Click here to view the embedded video.

In a recent YouTube post, Tesh recounts how the tune was created:

Click here to view the embedded video.

An avid NBA fan colleague of mine recently told me that the NBA on NBC theme “really means NBA basketball to me.” Indeed, that is the goal of TV theme music: to link the program with the viewer and get them to keep watching.

The interesting aspect of all of these NBA themes is that the light rock style of all three themes seems to cater to the white, middle class audience demographic. What seems at odds in this scenario is that most participants (i.e. players) in the NBA are African American; racial demographics in the NBA show that 76% of NBA players are African American, 20% of players are white, 3% are Latino, and 1% are Asian.

Telecasts of the NBA are obviously catering to the demographics of its audience, while not really reflecting the demographic of the players. One can imagine TV theme music by Prince, Ice T, Ludacris, Wu-Tang Clan, Will Smith, Queen Latifah (yeah, how about a female composer?), or perhaps the great Quincy Jones, who has recently been inducted into the Rock ‘n’ Roll Hall of Fame.

So NBA TV themes offer upbeat styles of music that convey action and excitement, but are relatively stylistically neutral—no heavy metal or country music, but also no rap or hip hop.  This seems to be a rather vanilla approach to an ethnographically rich sport.

Ron Rodman is Dye Family Professor of Music at Carleton College in Northfield, Minnesota. He is the author of Tuning In: American Television Music, published by Oxford University Press in 2010. Read his previous blog posts on music and television.

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10 Questions for Justin Scott

Each summer, Oxford University Press USA and Bryant Park in New York City partner for their summer reading series Word for Word Book Club. The Bryant Park Reading Room offers free copies of book club selections while supply lasts, compliments of Oxford University Press, and guest speakers lead the group in discussion. On Tuesday 2 July 2013, author Justin Scott leads a discussion on Treasure Island by Louis Stevenson.

What was your inspiration for this book?

A writing-improvement exercise that I chose fifteen years into my career led me to translate the first chapter of Treasure Island into modern 1950s prose. Stevenson taught me so, so much in the first chapter about pace, description, and character that I kept on translating all the way to the end.

Where do you do your best writing?

Upon rising, with my first cup of coffee.

Which author do you wish had been your 7th grade English teacher?

What a wonderful question. Patrick O’Brian.

What is your secret talent?

I’ll leave that to my wife.

What is your favorite book?

Hilary Mantel’s Wolf Hall.

Who reads your first draft?

My wife, Amber Edwards, who makes documentary films and is very good at spotting what is missing.

Do you prefer writing on a computer or longhand?

Computer, which serves my habit of re-writing.

What book are you currently reading? (Old school or e-Reader?)

Last Call, The Rise and Fall of Prohibition by Daniel Okrent in trade paperback.

What word or punctuation mark are you most guilty of overusing?

The em dash.

If you weren’t a writer, what would you be?

I do prefer writing. If I were not a writer, I would like to be a sail boat captain, but I am not a natural seaman, so I would settle, happily, for being a gardener.

Did you have an “a-ha!” moment that made you want to be a writer?

The writer Lawrence Block said to me, “You ought to be a writer.” I asked why. He said, “You look like a writer.”

Do you read your books after they’ve been published?

Yes, sometimes immediately, sometimes years later. I’m often left with the feeling that I’m glad I wrote that then, because I couldn’t write it now.

Justin Scott is the author of thirty novels. The most recent of which is The Striker, co-written with Clive Cussler, and the fifth novel in the Isaac Bell series collaboration the two publish together. The Janson Command is the first in a series based on Robert Ludlum’s bestselling book The Janson Directive. He is the creator of the Ben Abbott detective series. A few of the works he’s written as Justin Scott include Normandie Triangle, A Pride of Royals, and The Shipkiller which was reissued in 2012 in a special 30th anniversary edition. In addition to the Ben Abbott series, Scott has penned Red Sky at Morning, Sea Hunter and The Ripple Effect as Paul Garrison.

Read previous interviews with Word for Word Book Club guest speakers.

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Three Attorneys General are wrong

By Edward Zelinsky

On 6 May 2013, the US Senate by a bi-partisan vote of 69-27 approved the Marketplace Fairness Act of 2013. The Act would require large, out-of-state Internet and mail order sellers to collect sales taxes, just as brick-and mortar stores must collect such taxes.

The attorneys general of Oregon, Alaska, and Wyoming recently wrote to their respective states’ U.S. representatives, claiming that the Act is unconstitutional and urging the House to reject the Act. The three attorneys general are wrong. The Marketplace Fairness Act is constitutional and should be passed into law.

Today, as a result of the U.S. Supreme Court’s Quill decision, a state cannot require an Internet or mail order seller to collect sales tax unless that seller has a store, warehouse or other physical presence in the state. This effectively allows out-of-state remote sellers such as Amazon and eBay to sell tax-free and puts brick-and-mortar stores at an unfair competitive disadvantage since such in-state stores must collect sales tax.

I am a Connecticut resident and recently bought an electric razor through Amazon. Because Amazon has no physical presence in the Nutmeg State, Amazon did not collect sales tax on my purchase. On the other hand, if I had purchased this same electric razor at Walmart or at any other brick-and-mortar store, the seller would have been required to collect Connecticut sales tax on my purchase because of the seller’s physical presence in the state.

As a matter of law, Internet and mail order purchasers are obligated to pay the tax which the out-of-state seller fails to collect. In practice, few purchasers report and pay sales tax on the merchandise they buy from out-of-state remote sellers.

The Marketplace Fairness Act would overturn Quill and its physical presence test and would authorize a state to impose sales tax collection responsibilities on a large, out-of-state remote seller when it ships goods into the state. Thus, in a case like mine, the Act would permit Connecticut to require Amazon to collect sales tax on the electric razor I purchased online. The Act would thereby equalize the playing field for out-of-state remote sellers and conventional in-state stores, requiring both to collect sales tax from their purchasers.

The three attorneys general argue that Marketplace Fairness Act would unfairly burden small Internet and mail order sellers by requiring such sellers to collect sales taxes when they ship goods to out-of-state purchasers. In the words of the three attorneys general:

[R]equiring small, brick-and-click remote sales retailers to collect and remit use taxes to upwards of 9,600 taxing jurisdictions will be a costly burden on our small businesses making it more difficult for them to compete in the market.

None of this is persuasive. The Act only applies to sellers with annual remote sales of $1,000,000 or more. Truly small businesses which remain below this remote sales threshold will still be protected by Quill’s physical presence test and thus will not collect sales taxes on their out-of-state sales through the Internet or mail order catalogs.

Moreover, the Act does not require sellers to collect and remit taxes “to upwards of 9,600 taxing jurisdictions.” The Act specifically requires each state to designate for out-of-state remote sellers a single enforcement entity (such as the state’s Department of Revenue) to administer and enforce all state and local sales taxes within the state. This single entity must issue a single tax return which remote sellers will file for their tax obligations throughout the state. In addition, each state must provide free software for use by out-of-state Internet and mail order sellers to facilitate such sellers’ compliance with the state’s sales tax collection responsibilities.

The attorneys general are on more solid ground when they complain that a single sale by a remote seller into a state will trigger the seller’s obligation to collect sales tax in that state. This, the attorneys general tell us, violates the Due Process Clause of the U.S. Constitution.

As a matter of constitutional law, the attorneys general are wrong. As they acknowledge, the relevant tests under the Due Process Clause have been framed by the U.S. Supreme Court in terms of rationality, the existence of minimum contacts between an out-of-state seller and the taxing state, and whether the out-of-state seller has purposefully availed itself of the government benefits provided by the taxing state.

If the Marketplace Fairness Act becomes law, all out-of-state sellers will have formal notice that their first sale into a state will trigger the obligation to collect that state’s sales tax. Such a remote seller must be selling $1,000,000 annually into other states to be subject to the Act and its tax collection mandate. Such a seller will have the option of not making his first sale into a new state. If the seller does make that first sale into a new state, the Act will have put the seller on notice that, by availing himself of the new state’s marketplace, he will henceforth be obligated to collect the new state’s sales tax — just as the seller will have been collecting the sales taxes of the other states into which it is selling on-line or by mail order (or both).

As a Due Process matter, there is nothing irrational about this. The constitutionally-required minimum contact between a state and a remote seller will be established when the seller makes its first sale into that state. That seller will be on notice that its first sale will trigger the obligation to collect tax in that new state.

However, as a matter of tax policy, the three attorneys general raise a fair point which should be addressed in the House of Representatives. While not constitutionally necessary, it would be better for the Marketplace Fairness Act to augment its $1,000,000 sales trigger for collection responsibility with a per state threshold. I have previously suggested that an out-of-state Internet or mail order seller’s obligation to collect sales tax for any particular state only start when the seller ships $10,000 of merchandise annually into that state. The House could easily add such a per state limit to the Act in addition to the requirement that the sellers’ total annual remote sales be $1,000,000 or more.

The bottom line is that the Quill-based status quo is neither fair nor efficient. Under current law, merchandise purchased from conventional brick-and-mortar stores is subject to sales taxation in most states while that same merchandise, purchased on-line or through mail order from an out-of-state seller, is effectively not taxed. This is neither equitable nor economically sound. The stores unfairly disadvantaged by the current situation are not just the Walmarts and other big box retailers, but also the smaller, locally-owned retail stores which must collect sales tax on the same merchandise Amazon and similar Internet and mail order effectively sell tax-free.

The three attorneys general are wrong to oppose the Marketplace Fairness Act and to claim that the Act is unconstitutional. The House of Representatives should follow the large, bi-partisanship majority of the Senate and the pass the Act.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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Ten things you didn’t know about the Battle of Gettysburg

By Kate Pais

The 150th anniversary of the Battle of Gettysburg is upon us. The Civil War and Gettysburg remain one of the most integral and well-documented parts of American history. In hopes of honoring this extra special anniversary, here are ten little known anecdotes about the Battle of Gettysburg, found in the timeless and timely resource The Gettysburg Nobody Knows, an essay collection edited by Gabor S. Boritt.

The U.S. General Hospital at the battlefield in Gettysburg. Photograph by the Tyson Brothers, from the United States Sanitary Commission. Source: NYPL Digital Gallery.

(1) Due to the enormous size of the battle, it was really a battle between the every-soldier, despite military historians thoroughly documenting officer strategy. Even Robert E. Lee acknowledged the limits of planning compared to the execution of battle when he said, “I think and work with all my powers to bring my troops to the right place at the right time. I leave the matter up to God and the subordinate officers.”

(2) Renowned war hero Joshua Lawrence Chamberlain, who is sometimes credited as the most influential figure in the Battle of Gettysburg, wasn’t even going to enlist in the service originally; he hesitated because he was supposed to take a sabbatical from Bowdoin College in Brunswick, Maine to study in Europe for two years. He was struck with a pang of patriotism and instead used his sabbatical to grant leave from the school and become lieutenant colonel in the 20th Maine Infantry.

(3) After Stonewall Jackson was accidentally shot by his own troops in May 1863, Richard Stoddert Ewell was suddenly promoted to lead the Army of Northern Virginia. Because of the hasty restructuring and some confusing correspondence, when the Battle of Gettysburg started on July 1st, most of Ewell’s men were sent to Cashtown, eight miles away from the main fight. The Confederate troops took a significant hit in Cashtown before they were redirected, then weakened, towards Gettysburg.

(4) In a quantitative analysis of Day 2, Gettysburg could have easily gone to either side. While the advantages during the middle of the battle remain a mystery, the Union did have one blunder on their side: Major Daniel Sickles disregarding orders and marching his troops past Cemetery Ridge, leaving them exposed to attacks on all sides. If anything, the Confederacy had a leg up, making the ultimate victory by the Union that much more impressive.

(5) The reason for J.E.B. Stuart’s weak performance at Gettysburg? He took his Confederate troops to more than four major battles for sixteen days before they arrived at Gettysburg, having traveled without appropriate rations or sleep for two and a half days when they arrived.

(6) While Pickett’s Charge may be the famous fight on July 3rd, the Union Army launched an attack at 4:30 a.m., reclaiming the tactical advantage and making the first strike. While the Union strategy was more effective, the foolhardy Confederate attack at 1 p.m. would be more memorable.

(7) During the Battle of Gettysburg, another fight went on; the town of Gettysburg, population 2,400, had to defend itself too. Everyone remembers the battlefield, but the civilians defended their town for three days as well. Notable mentions include elderly John Burns who took a gun to the streets to defend against Confederates and schoolteacher Salome Myers who nursed the various wounded in town.

(8) Gettysburg happened in July 1863, but the campaign that built to it began in the spring. Battles at that time were happening in Tennessee, Arkansas, Virginia, and Mississippi. The Southern strategy was to attack multiple areas at once, as they thought the North tended to engage troops in only one place at a time. When the Confederates discovered this was not the case, they regrouped several armies and the Battle of Gettysburg became a behemoth for both sides.

(9) These rare quotations from Elisha Hunt Rhodes of the Second Rhode Island Volunteer Infantry capture how shocking the victory was, and how much it revitalized the Union spirit:

“Was ever the Nation’s Birthday celebrated in such a way before [?]” –4 July 1863

“But what a scene it was. Oh the dead and the dying on this bloody field.” –8 July 1863

“Again I thank God that the Army of the Potomac has at last gained a victory. I wonder what the South thinks of us Yankees now. I think Gettysburg will cure the Rebels of any desire to invade the North again.” –9 July 1863

(10) For two years the Civil War was largely concentrated in Virginia. When plans for a northern battle were formulated, Maryland was considered. Maryland was a gray area, still loyal to the original Union but associated with the Confederacy because of its ties to slavery. Lee decided to attack a location where it would be more of a statement. Pennsylvania was indisputably Northern territory.

Kate Pais joined Oxford University Press in April 2013. She works as a marketing assistant for the history, religion and theology, and bibles lists.

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Moralizing states: intervening in Syria

By Kathleen A. Cavanaugh

The narrative that underpins humanitarian intervention has been reframed from a narrow focus of intervention to a broader notion of responsibility to protect. While the concept of responsibility to protect is clearly best placed in an international framework, one key aspect of the question of intervention is the proposition of legal authority. It may be possible to frame some of the debate about intervention within law, but as Adam Roberts suggests:

[…]there are some hazards in discussing burning political issues in legal terms […] while most international lawyers are, quite properly, cautious in their application of rules and principles to particular cases, sometimes law may get misused. The language of law can easily become a language of right and wrong, of moralistic reproach, of the clothing of interest in the garments of rectitude, of the concealment of factual changes with legal fictions, of refined scholasticism in the face of urgent practical problems, and of the facile application of general rules without a deep understanding of situations that are unique. Such approaches are hardly the highest expressions of law; nor are they necessarily the best way of addressing complex and multilayered international problems.

Despite the limitations of employing legal language to address what is essentially a political problem, the language of intervention currently dominates the international community thinking on Syria. Against this backdrop, it is worth interrogating some of the key aspects of the intervention discourse and asking how these might map on to the Syrian case.

As the various disciplinary lenses compete for the hegemonic control of how we understand what is happening and, it follows, what we should be doing in Syria, we are left with an often clouded, rarely consistent analysis.  Yet whether situated in a protection (or humanitarian) justification or a more overt political agenda to ensure that whatever political leadership emerges in Syria will be compliant with the US and its allies, the calls for intervention are growing. Failure to understand the complex political terrain in Syria (replicated in a broader regional context) coupled with (flawed) predictions of Assad’s imminent exit may lead to military initiatives that are counterproductive at best.

If the sectarian divide that now characterizes the pro- and anti-regime divide was at an earlier stage of the conflict less fixed, the sectarian entrepreneurship (“exploit[ation] of the political vacuum created by an absent state”) of the Assad regime has been devastatingly effective. Similarly, if this was once an internal conflict, it has now bled in to neighboring states. Layered to this already complex landscape is the heavy presence of other interveners. Russia and Iran have provided support to the Assad regime; the United States and its allies have sided with the opposition. Recent Israeli involvement (ostensibly as a foil to Hezbollah) contributes to an already crowded and morally corrupt space. Much like Iraq, Syria has become the surface over which ideological struggles are being waged. The number of strategic competitors has served to diffuse, rather than consolidate the power base in Syria so that even if there is direct military intervention, it is highly unlikely that a clear ‘victor’ would emerge. Despite this, the rhetoric and (increasingly likely) prospect of intervention hangs heavy, which some commentators argue has underpinned, rather than dampened the conflict.

Since the conflict began in March 2011, the UN reports that over 70,000 civilians have died, and approximately 1.5 million have become refugees or are internally displaced persons. The burden of the gross and systematic human rights violations is attributed to al-Assad regime, but the civilian casualty rate has soared since the international community ‘intervened’ in late 2011. Given the already complex socio-political landscape, finding the ‘right intention’ for potential interveners raises a number of critical questions.

First, we must decide whether it is desirable (therefore non-essential) or mandated to know the motive of the intervener. Second (and regardless of how we answer the first), can we ever forensically know whether a state intervenes with the ‘right intention’? Whether we evaluate humanitarian intervention or the newer model of duty to protect, the primary purpose of the intervener must be to halt or avert suffering.  The question is: can we arrive at this conclusion?

Trying to argue a moral imperative underpinned by a liberal case for humanitarian intervention (as Fernando Tesón has endeavored to do in his thesis) is to argue that a state can be a moral agent. The moral imperative, to which Tesón compellingly addresses, does indeed exist. As he has argued, “sovereignty is dependent on justice and we have a right to assist victims of injustice.” Both camps — the interventionists and non-interventionists — are not likely to disagree on this point.

What is contested however is twofold. Firstly, “interventionists claim that foreigners may help to stop the injustice and non-interventionists claim that they may not.” This is a debate that lends itself to some degree of empirical assessment-based either on precedent or existing political conditions. Secondly, interventionists understand the dangers of suggesting that a state can be a moral actor but, like Michael Waltzer, they tend to accept there can be no purity of motive, that states can and should be attentive to their own state interests, and that it is still possible for the state to assume both strategic and moral armour. No matter where the arguments go we find ourselves at the same intersection.

So how to divest the moral imperative from the proposition? As Noam Chomsky has argued, we can, “[…] ask whether the pursuit of self-interest might happen to benefit others in particular cases, or whether unremitting public pressure might overcome the demands of the “principal architects” of policy and the interests they serve.” As we move Syria back in to our frame, the answer to this question is far from clear.  Sectarianism has yet again served the Assad regime well, leaving Syria fragmented—territorially, socially, politically, and militarily. Imagining a cohesive public voice to emerge from this space and have the sufficient leverage to push back against the multiple stakeholders jockeying for control is difficult. The forensics of this analysis may sit uneasily in the public conscience where the horrors of the war in Syria continue to play out. Bringing an end to the conflict requires that the international community not only accept, but demand a diplomatic, not military, solution.

Kathleen Cavanaugh is currently a Lecturer of International Law in the Faculty of Law, Irish Centre for Human Rights (ICHR), National University of Ireland, Galway. She has recently co-authored Minority Rights in the Middle East with Joshua Castellino (OUP 2013).

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US Independence Day author Q&A: part one

In honor of Independence Day in the United States, we asked some of our influential American history and politics VSI authors to ask each other some pointed questions related to significant matters in America. Their passionate responses have inspired a four day series leading up to America’s 237th birthday. Today L. Sandy Maisel, author of American Political Parties and Elections: A Very Short Introduction shares his answers. Check back tomorrow for part two.

Richard M. Valelly (American Politics VSI) asked: Political scientists used to worry that American parties were not “responsible parties,” that is, internally cohesive and responsive to their electoral bases. Now that we have political parties that are responsible, political scientists have become worried about an excess of partisanship and the dangers of partisan rancor. From your point of view, what would be the ideal kind of national party system?

L. Sandy Maisel: Given our system of government, with separation of powers and checks and balances, I think a two-party system, with at least semi-responsible parties, is preferable. Indeed, I think it is also inevitable. The problem comes when each party is dominated by an extreme group and when compromise becomes a “dirty word.” Governance in a system like ours requires negotiation and compromise, finding proximate solutions to intractable problems. That does not mean that parties are without principle; rather it implies that most of the day-to-day issues of government do not involve those basic principles.

Charles O. Jones (The American Presidency VSI) asked : Conventional wisdom has it the out-party does not have either a single leader, or even, nationally, a means to integrate policy proposals. Yet today the Republican Party is challenged to have an “agenda” akin to a national platform. Is this a change or merely a media illusion?

L. Sandy Maisel: I believe it is a media illusion. The Republican Party today, at least before recent efforts to find bipartisan solutions on gun control and immigration policy, seems intent on opposing whatever President Obama proposes. Opposition to any legislation is not a winning strategy electorally and it is not how our government works best. However, working with the party in power does not mean giving up on one’s own ideas. Republicans can do both, without the need to have a competing agenda or to be totally negative.

Charles O. Jones: What has been the effect on the congressional committees of having outside “gangs” and/or public agenda campaigns by presidents? Immigration being the most recent case, Social Security for Bush 43 (but there are many such).

L. Sandy Maisel: This question is a fascinating one, one that is broader in its implications than it is possible to address in a brief answer.  Congressional committees have been hamstrung in their ability to handle broad over-arching issues for some time. Think about energy policy under President Carter, one of his few legislative initiatives. Today’s highly partisan Congress, with Republican committee positions determined at least in part by Members’ commitment to specific views on the issues under the committees’ jurisdictions, means that in those areas committees cannot legislate as they once did. As a result, key legislation is often handled by “gangs,” or nothing will get done.

Donald A. Ritchie ( The US Congress VSI) asked : The US Congress has been called a “broken branch.”  If that’s so, whose fault is it: the institution, the political parties, or the voters?

L. Sandy Maisel: Congress has been called the “broken branch” for many years. I believe Ralph Nader used that characterization nearly half a century ago.  But the public’s evaluation of Congress is now at an all-time low, so the “broken branch” metaphor may be more apt than ever.  The fault, in my view, lies with the electoral system and the Congressmen and Senators that system produces.

Redistricting of House districts has created a system in which the vast majority of seats are safe for one party or the other; as a result any competition that exists is within the majority party in the district and nominees tend to come from party extremes.  That has led to a House in which compromise is very hard to reach.  The public sees an institution incapable of addressing, much less solving, pressing problems.

The Senate is hampered by its own rules, particularly the filibuster rule and the necessity of gaining a super majority to pass any important bills or to vote on many confirmations (action further restrained by “holds” on nominations placed by individual Senators).  The result is similar:  a legislative body incapable of action and held in low regard by the public because of its inaction.

In other eras strong House and Senate leaders have brought the Congress back from periods in which the institution was held in low regard, but none of today’s leaders seem capable of taking the long-term institutional view rather than seeking short-term political gain.

L. Sandy Maisel is the Chair of the Department of Government at Colby College. A former candidate for Congress, Maisel wrote American Political Parties and Elections: A Very Short Introduction, is the author or editor of 15 books on political parties and elections, and is a frequent commentator on contemporary politics.

The Very Short Introductions (VSI) series combines a small format with authoritative analysis and big ideas for hundreds of topic areas. Written by our expert authors, these books can change the way you think about the things that interest you and are the perfect introduction to subjects you previously knew nothing about. Grow your knowledge with OUPblog and the VSI series every Friday and like Very Short Introductions on Facebook.

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These days do we really need a Man of Steel?

By Arthur P. Shimamura

As a child, I encountered the Man of Steel in the Adventures of Superman, the 1950s TV series that I watched as morning reruns a decade later. My Superman was “faster than a speeding bullet” and fought for “truth, justice and the American way.” My 26-year-old son, Thomas, encountered a similarly invincible superhero in Superman: The Movie, the 1978 blockbuster which starred Christopher Reeve. Truth be told, neither of us are avid readers of the Superman comics, in which his backstory and demeanor has been remodeled over the years to align more closely with a changing culture. As we watched this year’s reboot, Man of Steel, in glowing IMAX 3D there was certainly delight in seeing a familiar action hero, though we both left the theater trying to figure out why the movie was so disappointing.

Henry Cavill as Superman in Man of Steel. (c) Warner Bros / DC Comics.

The problem with Superman is that he is too powerful, too righteous. These days we tend to prefer our heroes with a troubled past who must overcome their dark side for the greater good. Can we identify with an omnipotent, squeaky clean, patriotic superhero after having been through decades in which our political and sports heroes have been guilty of illegal activities, sex scandals, and other gross moral ineptitudes? Hollywood’s answer is to endow this new Superman with significant angst. In fact, a considerable amount of the movie is devoted to detailing a backstory which first introduces an antagonist, General Zod, who himself is not all bad (his prime motive is to secure a place where he can resurrect the people of planet Krypton by cloning the genetic material that Superman holds). We are then presented with flashbacks of Clark Kent’s childhood, which is filled with anxiety about the way humans might react if they find out that he’s an alien, perhaps locking him up out of fear (in this way we have a reconstitution of Spielberg’s E.T. storyline). Worried each time he displays his superpowers, Clark Kent wanders from job to job not knowing exactly what to do with his life.

This setup is entertaining as it gives some depth to the young Superman. We have a troubled superhero who doesn’t feel comfortable about his powers. We are also introduced to a modern day Lois Lane, as well as our villain who wants to create a new Krypton society on Earth, albeit by way of removing all traces of the human race (interestingly, one could make an analogy between General Zod’s evil quest and manifest destiny or any other imperialist venture). The rest of the movie boils down to a rather boring battle between Superman and Zod. The problem is that the two are virtually indestructible. They end up merely pushing each other around, thus destroying in their wake everything around them, which includes skyscrapers, cars, trains, and an unfortunately situated IHOP. We don’t see anyone severely hurt, but from the material devastation it is clear that many have died just by having been in the wrong place at the wrong time. In fact, this is the problem: it is not our fight. Just as those poor souls in the cars, trains, and skyscrapers, we are just unwilling observers.

In the end, the movie is somewhat successful in creating a more personable, more vulnerable Superman. The problem is not Superman’s overpowering strength but instead our complete impotence. For a movie to work psychologically, we need to feel a part of the story, we need the issues to be relevant, and we need to rally behind our hero. During the long, drawn-out brawl between Superman and Zod, rather than identifying with our hero, I felt as if I were at a bar where two guys argue and start pushing each other around. I kept wanting to say, “Why don’t you two take your fight to some desolate planet and leave us alone?”

Art Shimamura is Professor of Psychology at the University of California, Berkeley and faculty member of the Helen Wills Neuroscience Institute. He studies the psychological and biological underpinnings of memory and movies. He was awarded a John Simon Guggenheim Fellowship in 2008 which led him to study links between art, mind, and brain. He is editor of Psychocinematics: Exploring Cognition at the Movies, and the author of Experiencing Art: In the Brain of the Beholder. Further musings can be found on his Psychocinematics blog.

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