Author Name < Back From Sex to Science: The Challenges and Complexity of Consent Matthew Grady I. Abstract Since the beginning of biomedical research on human subjects, the notion of consent has been widely debated and highly contentious. With philosophers and bioethicists focusing on the issue of what constitutes truly informed consent and the proper ethical guidelines for retrieving it, the existing notion of consent in biomedical research fails to fully consider the potentially coercive forces on participants. Consent has also been an issue of import amongst philosophers of sex and feminist scholars. Rallying behind the contemporary idea of a robust version of consent—one that fully encompasses the ways in which agents may be coerced into consenting to a sexual act—these philosophers have argued that societal norms, external pressures, and the nature of consent itself often render consent insufficient to guarantee the moral permissibility of sex. I will argue that these two seemingly distinct concepts of consent in sexual and biomedical spheres face many of the same ethical issues. Borrowing from recent discussions around coercive factors influencing consent in sexual interactions and my own experiences in biomedical research settings, I will draw parallels between these two notions of consent in order to illuminate a more accurate and robust philosophical framework for setting ethical guidelines around obtaining consent in biomedical research settings. II. Introduction As biomedical research has increased exponentially with regard to both enhanced funding for the practice of human-subject experimentation and new research methodologies for promising medical interventions, there is an urgent need for robust ethical guidelines around utilizing human subjects in biomedical research contexts. This paper will focus on the use of human subjects in average biomedical research experiments, which typically recruit and pay individuals to undergo a certain medical procedure, take a specific drug, etc. before approval of the medical intervention for the general population. Across all of the varying perspectives regarding how to best recruit, treat, and compensate human subjects, consent has remained an absolute standard and necessity for conducting ethical biomedical research. While philosophers and bioethicists have contentiously debated over the necessary conditions for obtaining consent, most have widely (if not completely) neglected factors that may wrongfully induce human subjects to consent to biomedical research. Consent has also been a central topic of importance within the philosophy of sex and feminist p hilosophy, yet its development has remained quite distinct from the understanding of consent in the field of biomedical research and subject recruitment. Philosopher and bioethicist Alan Wertheimer has made a connection between the notion of consent in sexual interactions and biomedical research, but my parallels and conclusions will clearly be distinct from his and will primarily focus on developing thoughts inspired by the initial connection made by Quill Kukla in “A Nonideal Theory of Sexual Consent.” In sexual interactions, most philosophers agree that consent is a necessary, but insufficient, element for ensuring the permissibility of sex between p artners. Consent is something to be given freely, and many forces may serve to coerce or influence an individual into granting their consent, thus potentially curtailing the normative goal of “ideal” consent. Traditional discussions of consent are structured around fulfilling the normative goal of obtaining consent that is free from undue influence on one’s agency, autonomy, ability to make rational decisions, etc. Consent, under this view, is either valid or not—anything constraining an agent’s ability to consent automatically invalidates its moral force. Quill Kukla has introduced a “nonideal theory of sexual consent,” which classifies consent as degreed and emphasizes that genuine consent can still be achieved in the presence of potentially coercive factors. Under this conception, agency and autonomy are present in lesser and greater degrees within different sexual interactions, and agents are continually pressured by coercive forces. Thus, consent is not valid or invalid; instead, genuine consent (or robust consent as I will often refer to it) is built when coercive factors are controlled to such a degree that all sexual partners possess sufficient agency to make a fully rational decision to consent. This does not deny our ability to determine whether a sexual act is morally permissible and establish a standard for morally permissible ways to obtain consent. Rather, it allows us to adopt a nuanced view of consent as a nonideal concept, wherein agents can consent under our oft-constrained and coerced statuses. Philosophical inquiries into coercive factors impacting one’s ability to obtain genuine, robust consent in sexual interactions have focused on external pressures, societal norms, and the implications of consent as the dominant framework itself. Yet, bioethicists have neglected this crucial area in their understanding of consent. Much can be gained for our existing notion of consent in biomedical research settings by embracing the approach taken by philosophers of sex. Consent operates in many different facets of life—agreeing to consent forms, consenting to a sexual interaction, consenting to someone entering your home, and many other forms of implicit and explicit acts of consent . However, the nature of consent within sexual interactions and biomedical research settings is distinct from other forms, making them especially morally-laden. Given violations of these kinds of consent are particularly harmful to one’s bodily autonomy, sexual interactions and biomedical research settings are especially deserving of rigid consent guidelines. The genuine robustness of these two forms of consent is also dependent upon the satisfaction of external conditions not always under the control of the agent granting consent (ex. a non-coercive partner in sexual interactions or a biomedical institutional review board that grants approval for a biomedical experiment), opening up the potential for coercive factors to render a certain act morally impermissible. T hese two distinct forms of consent face many of the same ethical issues and should be engaged in a conversation with one another—a conversation that has been neglected thus far. I hope to build a more accurate, encompassing framework in the biomedical sphere by which we can set ethical guidelines for engaging human research subjects in a truly consensual manner based on the progress made by philosophers of sex, like Kukla and others. To conduct this comparative analysis, I will begin by discussing the existing notion of consent within the biomedical research field and detailing the major issues of importance currently debated. I will then proceed to review the ways in which many philosophers of sex have taken a broader approach to defining consent—one that takes into account the coercive factors that may inhibit an agent’s ability to grant consent with full autonomy and agency. I will then draw comparisons b etween these two distinct notions of consent to reveal several coercive factors in biomedical research settings that may render “informed” consent coerced. Finally, I will suggest how we may build a broader philosophical framework to scaffold the agency of human subjects when consenting to potentially dangerous biomedical research experiments. III. The Existing Notion of Consent in Biomedical Research After many instances of harmful treatments being given to vulnerable, often marginalized populations, such as the Tuskegee Syphilis study, bioethicists began to question what truly constitutes informed consent in biomedical research settings. This question has included exploration into both the b est ways to obtain consent, as well as the proper way to interpret the term, “informed.” The p redominant conclusion on how to best define informed consent has overwhelmingly neglected consideration of coercive factors that impact the ability for human subjects to rationally consent to biomedical trials. As will become clear, there are an abundance of underexplored factors that may constrain one’s ability to rationally consent to participate in a biomedical research trial. This paper aims to fill this lacuna in the current understanding of biomedical research consent. There are many interesting debates around the understanding of biomedical consent that will become relevant to my argument later, the first being the therapeutic misconception. This phenomenon occurs quite often in biomedical research settings, where human subjects possess the incorrect belief that they are receiving life-changing or potentially beneficial treatments, despite being told about the potential of receiving a placebo treatment, or the chance that the experimental drug may be ineffective. The implications of the therapeutic misconception for ensuring the genuine nature of a human subject’s consent are vast. Consent hinges upon an agent’s uncoerced ability to make an informed decision, and philosophers of biology have rightfully debated what constitutes truly meeting the informed standard of consent. Can one really be said to have full decision-making agency and possess the needed information to genuinely consent if they wrongly believe, as subjects with the therapeutic misconception do, that they are guaranteed life-saving treatment? This is not to say that consent is in some way unobtainable in biomedical research settings; however, we ought to properly understand the implications of the therapeutic misconception on a subject’s ability to grant their consent in a knowing, informed fashion. In addition to the therapeutic misconception, there is another important debate around whether informed consent requires comprehension in any way. Some argue that full comprehension of what the study entails is the only way to ensure the participant is aware of all of the risks and does not possess the therapeutic misconception. Participants have also been shown to severely misunderstand the actual p rocedures, treatments, etc. they are consenting to, whether that be due to not reading the consent form or not fully understanding the researcher’s explanation of what will occur during the study . By not comprehending both the purpose of the study and the exact particulars involved in it, research subjects may fail to meet the “informed” requirement of informed consent. Regardless of the exact answers to these concerns, it is clear that the current discourse surrounding biomedical consent has yet to satisfactorily explore the intricacies of the coercive factors impacting consent in medical experiments. Participants may be hindered in their ability to grant genuine, uncoerced consent when, as research shows is often the case, they do not understand the purpose or specifics of the research study to which they are consenting. In a way, participants in many biomedical studies consent to a version of the study that does not carry the significant risks of harm they take on when consenting—is this morally permissible? How can we ensure coercive factors, like the therapeutic misconception, do not wrongly influence a human subject to consent to a potentially dangerous experiment? These ethical issues debated within the philosophy of biology can be b etter answered with a revised, robust version of consent—one which thoroughly examines and addresses the coercive factors that unduly encourage someone to grant consent without b eing truly informed and open to participating. IV. Moving Beyond Mere Consent: Philosophy of Sex While consent works to p reserve the agency of a sexual partner, the vast majority of philosophers agree that consent is necessary for sex to be morally permissible, not sufficient. When consenting to a sexual act, a person is utilizing their agency and autonomy—their capacity to make free and independent decisions to meet their own ends—to make a rational choice, so consent both contributes to and draws from one’s agency. We now recognize the ability of rational agents to utilize their agency to consent to sexual acts that may still be morally problematic, whether that consists of morally dubious sexual actions or acts obtained with a coerced notion of consent. Given the importance of sexual consent, we need an understanding of it that can account for any and all factors that may coerce a sexual partner into granting consent when they otherwise would not have. Philosophers have addressed the issue of consensual sex that may be coerced in a variety of fashions. Some feminist scholars, like Catharine MacKinnon, have taken a radical approach, claiming that no consent is truly valid under heteronormative structures. Their understandings of consent highlight the ways in which external societal conditions may render consent insufficient if they constrain one’s options to the point where consent becomes obligatory, rather than freely given. Nicola Gavey provides a compelling account of how heteronormative , oppressive structures may render one’s consent involuntary or obligatory in sexual situations because of societal conditions pressuring women. Women sometimes feel obligated to consent to unwanted sexual advances because of the heteronormative forces that pressure them to enter a subservient, diminutive role within sexual interactions. Other philosophers take a different approach to consent by illuminating varying ways in which traditional consent is not sufficient to guarantee a good moral standard for sex. Power dynamics, a misunderstanding of what will actually take place during sex, the offer of money, socialized b ehaviors, and societal pressures are all examples of coercive factors that may encourage one to say yes, even when one did not originally intend to. A person may not be able to fully, rationally consent to a sexual act if pressured by these sorts of coercive factors. Philosophers operating with this lens focus less on making a valid versus invalid distinction of consent and instead emphasize the way consent can be constrained or limited by oppressive structures and other coercive forces. The moral permissibility of a sexual act depends on the agency and autonomy possessed by all of the sexual partners consenting, which may be constrained by coercive factors. By emphasizing the coercive factors outside of direct threats from a partner that may constrain one’s genuine consent, feminist philosophers have been able to build a more robust understanding of consent—one that accounts for the coercive factors that may wrongfully influence one to consent to a sexual act. To summarize all of this into a more digestible framework, I find Quill Kukla’s non-ideal theory of consent to be particularly illuminating. Essentially, under Kukla’s perspective, consent is a “nonideal concept,” where virtually no sex will turn out to be consensual if consent requires the full autonomy of its participants. Their framework allows for the permissibility of sex and obtaining consent even when coercive forces are present; all agents are constrained in different ways, by different power relations, as a result of different identities, and that does not fully invalidate our ability to consent. Instead, to ensure one’s consent is genuine in the presence of common coercive factors, Kukla argues we must “scaffold” consent by “[being] sensitive to the limits of and possibilities for agency and consent in a given context and [adjusting] accordingly,” to ensure a partner possesses agency and autonomy. Scaffolding can be accomplished socially or interpersonally, where practices, environments, and relationships can help to enable a sexual partner’s agency. Kukla uses the example of a retirement facility embracing guidelines, policies, and management that allow its patients to have sex in such a way that does not threaten their ability to participate safely or diminish their own agency in pursuing sexual relationships. On the interpersonal level, agents can also aid in scaffolding their sexual partner’s (or partners’) agency and autonomy by ensuring their partner feels the, “ability to exit a situation, trust, [and] safety,” among other crucial practices that build and protect one’s ability to genuinely consent. Policies here scaffold consent by examining potential coercive factors and building social practices which are inclusive and protective of sexual agency. Again, philosophers of sex, like Kukla, have explicated external factors, such as power dynamics, money, the traditional, overriding depiction of a woman “giving” consent to a man’s request, and heteronormative structures, that may coerce someone to consent to a sexual act. In identifying these, philosophers can strategically recommend scaffolding structures to ensure the moral permissibility of sexual interactions and to enhance the agency and autonomy of sexual partners. I argue that the bioethicist ought to take on a similar project of identifying coercive factors and scaffolding their designs to preserve agency, autonomy, and genuine consent in biomedical research experiments. This challenge has been neglected thus far, and the current understanding of informed consent fails to fully account for coercive factors; thus, the biomedical research community is in need of a scaffolding strategy to preserve genuine, robust consent. The following section attempts to embrace the approach taken by Kukla and others in developing a more robust theory of consent within biomedical research settings. V. Can Biomedical Research Achieve Genuine, Robust Consent? To curb coercive factors from playing a role in one’s decision to have sex, Kukla proposes a more robust, nonideal theory of consent, which works to scaffold protections for an individual’s autonomy in the process of granting consent. Kukla’s framework understands that agents are constantly influenced by external, coercive factors. I argue that we should embrace this approach in the b iomedical research field, which requires a thorough understanding of the implicit and explicit factors that encourage participants to grant consent to medical experiments and treatments. I will now begin to detail four p rimary coercive factors that have been underexplored by philosophers of biology, highlighting the direct parallels that can be found with the coercive factors that impact sexual consent. In drawing these parallels and embracing a more robust understanding of consent, this paper will aim to demonstrate the need for greater encompassing ethical guidelines around biomedical research experiments. A. Compensation: Fair or Coercive? The standard practice for most biomedical research trials is to compensate their human subjects for their participation and time spent completing the study (and any additional costs incurred, medical expenses, inter alia). To recruit enough human subjects for a statistically valid biomedical study, researchers must offer compensation as an inducement to p articipate. Many ethical questions have been explored by philosophers and bioethicists, including how much to pay human subjects, whether payment for certain kinds of research is morally acceptable, and if payment can truly compensate for the serious risks involved in participating in experimental research. However, most have neglected to explore the role money plays as a coercive factor to participate in potentially dangerous research and its impact from a scaffolding perspective. Participating in biomedical research can be a valuable way to earn both active and p assive income, yet money is known to influence the rational decision-making of moral agents. Might someone “consent” to engaging in a biomedical research study that crosses their ethical and/or physical level of comfort in desperation for money? Philosophers of sex have rightly acknowledged that money can serve as an influential and potentially coercive force for consenting to certain actions because an agent may, in an attempt to earn crucial income for themselves, consent to sex in which they would not normally be comfortable engaging. A very similar ethical dilemma arises in the case of biomedical research. Consider this fictional example: an extremely poor woman who struggles to pay for her basic necessities agrees to take a highly experimental drug that could have damaging, long-term side effects. She would not normally endanger her own health in this way, but she is so desperate for passive income that this compensation is too important to pass up. Under the existing notion of informed consent in b iomedical research, this kind of participation would still be considered fully consensual when, clearly, money played a coercive role in her decision. This is not to say that all sexual interactions and all biomedical research settings involving the exchange of cash are coercive (e.g. sex work depends on the presence of money, but is not necessarily coerced), but we ought to pay crucial attention to these areas because of the morally problematic force money can have on obtaining consent. Money has the potential of encouraging and even forcing one into doing things they would not normally be comfortable with, so compensation is especially deserving of ethical guidelines. See Largent, et. al. for a further discussion of the concerns here. Imagine a case where someone decides to consent to a risky biomedical research trial with full comprehension of the risks and particulars involved with the medical study. They choose to accept all of the accompanying risks with participation because the potential compensation is worth their involvement according to a rational assessment by the agent in question. I concede here that this person may not be making a coerced decision to consent—this person, depending on the background circumstances and personal costs, may be choosing to utilize their agency to make a rational decision to pursue compensation. But, it is equally important for research designers to ask, ‘If this subject were in a greater position of agency and authority, would they still be comfortable with making the same decision?’ This question concerning the potential for coercive influence is neglected and unaddressed in the vast majority of biomedical research settings. Not all cases will reveal coercive factors influencing a subject’s decision, but bioethicists have neglected to fully accept the incredibly powerful and sometimes coercive influence compensation can have on a person’s ability to rationally consent. Furthermore, many research studies design their compensation schedule in a way to coerce participants into completing the entirety of a biomedical experiment by offering a significant “bonus” at the end of the study. Given that consent hinges on the ability for an agent to say “no” at any time to any part of an experiment, compensation can wrongfully be utilized as a tool of coercion, in that a research subject may feel unduly compelled to complete a study in hopes of receiving the bulk of their compensation at the end of the research. Compensation, in this role, can coerce consent and thus render the consent given as less robust, less agential, and likely to be less morally permissible than a more scaffolded version of biomedical consent. B. Underexplored Power Dynamics Furthermore, there exist underexplored power dynamics that may induce individuals to consent to biomedical research that they might not otherwise. It is not uncommon for physicians to offer (or even suggest) participating in an experimental research trial to their ailing patients. The physician here possesses a status of authority and level of power that may wrongfully induce their patient to agree to participate, despite the overwhelming risks, in benefits to their own research or that of their colleagues. This is not to say that all actions by a doctor wrongfully operate on a power dynamic, but recommending someone to consent to a trial with clear and substantial potential for harm rightfully deserves a more critical lens for moral judgments. Another example worth noting is when professors recruit their students to participate in their own b iomedical research. Might a student consent to participate merely because their p rofessor, who is in a position of power, asked them to do so? I argue that both of these cases illuminate a power dynamic that may render the given consent here as below the standard for moral permissibility and fully robust consent. Just as a boss requesting to have sex with their employee possesses an imbalanced power dynamic, so do certain recommendations of research studies by people of authority. By understanding the coercive influence of underexplored power dynamics in biomedical research recruitment, we can begin to build a more robust theory of consent that accounts for this coercive factor. C. The Misunderstanding of Particulars By Research Participants As previously discussed, it has been well documented that human subjects often misunderstand the particular actions and risks involved with their participation in biomedical research trials. While comprehension is difficult to fully impart on human subjects, might some of these knowledge gaps wrongfully encourage one to consent to a research study? As mentioned earlier, if one is under the guise of the therapeutic misconception, they may be more willing to consent to potentially dangerous research in the hope of receiving free treatment; however, there is no guarantee they will receive any sort of efficacious medical intervention. Research participants are also often unaware of the particular procedures, treatments, etc. they will have to undergo, meaning they cannot grant fully informed consent to them. A similar ethical dilemma arises in the case of sexual consent: one may consent to a sexual interaction without knowing the full breadth of what will occur. Biomedical researchers ought to work (or alternatively, “scaffold”) toward ensuring their research participants have full knowledge and comprehension of any factor of the research that might change their decision to consent. Only a more robust consent framework within biomedical research settings can properly protect the autonomy of human subjects to provide truly informed consent. D. Lack of Knowledge Regarding Research Intentions The final factor that I argue merits greater consideration in our ethical guidelines around b iomedical consent concerns the ability of the patient to understand the intentions of the research. Due to the nature of biomedical research, human subjects are often not informed of every detail of the study in order to maintain scientific objectivity and integrity. So, a human subject may be told what the study consists of, while not fully understanding the intentions of the research. What if a human subject consents to participating in a Phase I biomedical trial without knowing that the intention of the research is to produce a drug that only the extremely wealthy will be able to afford (an unfortunately common occurrence in the US)? Or, what if the aim of the research is to reach a conclusion that goes against one’s own morals, like that racial differences are essential rather than constructed? Just as one possesses a right to know the intentions behind their partner asking for consent to have sex, human subjects have a right here as well because the information presented may actively encourage one to not offer consent in the first place. Our existing definition of consent for human subjects in biomedical research experiments does not properly account for preserving, or scaffolding, the full rational decision-making of human subjects. While understanding the need for a certain level of confidentiality, the intentions behind the research itself may serve as a deterrent for someone to grant consent. So, in order to have genuine, robust consent, we must be able to set ethical guidelines that actively inform the participant of any detail that may render their consent below the bar for moral permissibility if unknown. VI. An Argument for a More Robust Consent in Biomedical Experiments I present these four coercive factors not in an attempt to develop a fully-fledged account of proper consent in biomedical research, but rather to demonstrate that our existing notion does not go far enough to protect the autonomy of human subjects. All four of these concerns do not apply equally in every context, but they do merit a greater, more nuanced understanding of consent and how to ethically scaffold against coercive factors. Philosophers of sex, like Kukla, have begun to p opularize the idea of a robust, nonideal theory of consent as a way to scaffold ethical precautions to engaging in sexual acts with a partner. The field of biomedical research ought to embrace a similar strategy and approach, and these four factors can begin to identify the key elements influencing the autonomy and agency of sexual partners. To scaffold a human subject’s ability to grant their uncoerced consent, we need to maximize their knowledge of anything essential to their rational decision-making. This would involve instituting clear and expansive policies to combat the therapeutic misconception and ensure participants understand the potential harms they may undergo. Researchers should also develop pay schedules and formats that work to ensure that the benefit incurred from compensation does not wrongly coerce one into participating or lacking the ability to revoke their participation at any time. Crucially, though, we ought to concurrently reform the issues of capitalism and systemic wealth inequality that force many people in the US to sell their own bodies for lifesaving income. Finally, we should adopt stricter guidelines for participating in biomedical research experiments to both restrict coercive power dynamics and pursue further scaffolding of subjects’ agency and autonomy. It is important to note, though, that this paper is primarily concerned with the philosophical issues that might constrain one’s genuine consent, and I invite bioethicists to create a more concrete and thorough list of ethical guidelines to scaffold agency in experiments. By conducting a rigorous philosophical analysis of coercive factors that influence human subjects, philosophers of biology will be better equipped to develop their own version of robust consent that can account for coercive factors. This new, reinspired lens from a philosopher of sex into scaffolding consent should help to control the damaging effects of coercive factors and grant the human subject greater autonomy in making rational decisions regarding whether and when to participate in biomedical research. Research study designers can utilize the recognition of these coercive forces, scaffold ethical practices to combat their influence on diminishing an agent’s authority and embrace a more robust understanding of consent in biomedical research experiments. VII. Conclusion My aim in this paper has been to draw parallels between the currently distinct notions of consent within sexual interactions and biomedical research to illuminate the similar ethical issues facing both. Many feminist scholars and philosophers of sex have taken an approach of examining the societal conditions, other external pressures, and nature of consent itself to illuminate the ways consent may be unduly coerced in rational agents. In doing so, they have been able to develop a more robust framework around a nonideal theory of consent that socially and interpersonally scaffolds (but not completely) a person’s agency in order to minimize coercive factors in one’s decision to consent to sex. By detailing parallel coercive factors present in the biomedical research field, I hope further philosophical inquiries will be able to develop a similar robust consent framework for biomedical research involving human subjects. On a more practically conclusive note, biomedical research experiments are luring; research designers purposefully advertise their studies to sound like easy, safe ways to make money, despite their risks. As shown by decades of research studies with devastating effects on communities of color, biomedical research experiments target specific populations…populations that are often BIPOC, low-income, young, and most vulnerable to being coerced into consenting in a biomedical research setting (see NIH for more on the crucially important element of structural medical racism). I’ve seen firsthand the consequences of a biomedical research industry that has consistently used advertising to tempt many young people, like myself, to participate in potentially harmful studies—experiments where we may not be in a fully agential capacity due to coercive factors. Money, power relations, a lack of understanding regarding the experiment, and other coercive factors constantly influence the ability for people, especially those of marginalized or fiscally disadvantaged backgrounds, to make a fully rational choice in consenting to biomedical research. This should not detract from the important results found in biomedical research and the necessity for it; instead, I am hoping to emphasize the stakes of and potential harms from coerced consent. We need to scaffold the ability for everyone of every identity to make a fully rational, uncoerced decision on whether and when to consent to a biomedical research experiment. References Beres, M. A. (2016). ‘Spontaneous’ Sexual Consent: An Analysis of Sexual Consent Literature. Http://Dx.Doi.Org/10.1177/0959353507072914 , 17 (1), 93–108. https://doi.org/10.1177/0959353507072914 Booth, S. (2002). A philosophical analysis of informed consent. Nursing Standard (Royal College of Nursing (Great Britain) : 1987) , 16 (39), 43–46. https://doi.org/10.7748/NS2002.06.16.39.43.C3211 Carnegy-Arbuthnott, H. (2020). On a Promise or on the Game: What’s Wrong with Selling Consent? Journal of Applied Philosophy , 37 (3), 408–427. https://doi.org/10.1111/JAPP.12393 Candilis, P. J., & Lidz, C. W. (2010). Advances in Informed Consent Research. The Ethics of Consent : Theory and Practice . https://doi.org/10.1093/acprof:oso/9780195335149.003.0013 Cappelen, H., & Dever, J. (2019). Bad language (1st ed.). Oxford University Press. https://global.oup.com/academic/product/bad-language-9780198839644 Dankar, F. K., Gergely, M., & Dankar, S. K. (2019). Informed Consent in Biomedical Research. Computational and Structural Biotechnology Journal , 17 , 463. https://doi.org/10.1016/J.CSBJ.2019.03.010 Dickert, N., & Grady, C. (1999). What’s the price of a research subject? Approaches to payment for research participation. The New England Journal of Medicine , 341 (3), 198–203. https://doi.org/10.1056/NEJM199907153410312 Eyal, N. (2019). Informed Consent. In Edward N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (2019 Spring Edition). https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=informed-consent Gavey, N. (2016). Technologies and Effects of Heterosexual Coercion. Http://Dx.Doi.Org/10.1177/0959353592023003 , 2 (3), 325–351. https://doi.org/10.1177/0959353592023003 Tilton, E. C. R., Jenkins Ichikawa, J., Albert, S., Anderson, S., Ayars, A., Boonin, D., Bowen, J., Bromwich, D., Caldwell, K., Conrad, K., Cumberbatch, L., Elefson, G., Gilbert, C., Graf, L., Gunkel, J., Haughton, J., Jenkins, C., Jost, L., Kennedy, C., … Woollard, F. (2021). Not What I Agreed To: Content and Consent. Https://Doi.Org/10.1086/715283 , 132 (1), 127–154. https://doi.org/10.1086/715283 Trott, A. M., & Anderson, E. (2019). Women in Philosophy: The Limits of Consent in Sexual Ethics. Blog of the APA . Kukla, Q. R. (2021). A Nonideal Theory of Sexual Consent. Https://Doi.Org/10.1086/711209 , 131(2), 270–292. https://doi.org/10.1086/711209 Largent, E. A., Grady, C., Miller, F. C., & Wertheimer, A. (2012). Money, Coercion, and Undue Inducement: A Survey of Attitudes About Payments to Research Participants. IRB , 34 (1), 1. /pmc/articles/PMC4214066/ Raja, H. (2020). Author and Citation Information for “Sex and Sexuality.” In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Spring 2020 Edition). https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=sex-sexuality Schmidt, T. A. (2003). The legacy of the Tuskegee syphilis experiments for emergency exception from informed consent. Annals of Emergency Medicine , 41 (1), 79–81. https://doi.org/10.1067/mem.2003.17 Shamoo, A. E., & Resnik, D. B. (Eds.). (2016). Responsible conduct of research (3rd ed.). Oxford University Press. https://global.oup.com/academic/product/responsible-conduct-of-research-9780197547090?cc=gb&lang=en& Sreenivasan, G. (2003). Does informed consent to research require comprehension? Lancet (London, England) , 362 (9400), 2016–2018. https://doi.org/10.1016/S0140-6736(03)15025-8 MacKinnon, C. A. (1989). Sexuality, Pornography, and Method: “Pleasure under Patriarchy.” Ethics , 99 (2). Moorthy, G. (2020). Recruiting Psychology Students to Participate in Faculty/Department Research. Voices in Bioethics , 6 . Morgan, S. (2003). Dark Desires. Ethical Theory and Moral Practice 2003 6:4 , 6 (4), 377–410. https://doi.org/10.1023/B:ETTA.0000004638.15926.1A Wertheimer, A. (2010). Rethinking the Ethics of Clinical Research: Widening the Lens. In Rethinking the Ethics of Clinical Research: Widening the Lens . Oxford University Press. https://doi.org/10.1093/ACPROF:OSO/9780199743513.001.0001 West, R. (1995). The Harms of Consensual Sex. The American Philosophical Association Newsletters , 94 (2). West, R. (2020). Consent, Legitimation, and Dysphoria. Georgetown Law Faculty Publications and Other Works , 83 (1), 1–34. https://doi.org/10.1111/1468-2230.12489

Author Name < Back Refuting the Myth of Progressive Secularism: An Analysis of the Legal Frameworks Surrounding Religious Practice in France and Bahrain Bridget McDonald This paper explores the idea that a secular state is inherently more progressive than a religious nation (a country with a designated state religion). Looking through the lens of freedom of religious expression, I argue that having a secular clause in a country’s constitution does not necessitate a higher degree of religious freedom. Decades of Western discourse linking secularism to modernization has created the notion that religious countries cannot foster free and prosperous societies to the level of secular nations. To refute this view, this paper builds on Talal Asad’s critiques of the contemporary secular model as Eurocentric. Additionally, I expand on the policy overlap discussed in John Bowen’s article comparing the French and Indonesian judicial systems. I employ a comparative case study model to evaluate the legal frameworks surrounding religious practice in France (a secular state) and Bahrain (a Muslim state). Findings indicate that although the two countries differ in terms of religion’s place in government, significant overlap exists between their laws impacting religious practice. I argue that in certain cases, Bahrain exhibits a higher degree of tolerance for religious expression than France. I conclude that religious states can value religious identity more than a secular country, therefore enabling select religious nations to foster religious freedom to equal or higher levels than their secular counterparts. However, more comparative research needs to be done to fully evaluate the dimensions of religious freedom in secular and religious countries. Introduction In the 2022 French presidential elections, news coverage of far-right candidate Marine Le Pen’s outlined platform – titled 22 Measures for 2022 – highlighted the second goal on her list: “Eradicate Islamist ideologies and all of their national territory networks.” Le Pen closely tied this sentiment to laïcité (secularism), a French value developed during the Revolution that established the foundation for a formal separation of church and state. Le Pen’s rhetoric has brought forth discussion on the role of secularism in the government and the impact of secular policies on the French Muslim community (Ataman, 2022). Though initially a primarily Western ideology, a clause pertaining to secularism now appears in 71 countries’ constitutions (World Population Review, 2022). These nations, referred to as constitutionally secular countries, are typically associated with higher GDP (Ruck, Bentley & Lawson, 2018), more socially progressive policies, and increased freedom. However, the recent ban on burqas and niqabs in secular countries has brought into question the progressive nature of secularism. France, Switzerland, Belgium, and Bulgaria have fully banned burqas, while various other European countries have banned the burqa to differing degrees. This trend, which has been criticized for discriminating against Muslims, demonstrates the complicated relationship between secularism and minority religious groups. France, the first European country to ban the burqa via a law prohibiting facial coverings (Erlanger, 2011), has taken further steps to target the Muslim community, including fining women for wearing a “burkini”– a full body swimsuit for Muslim women, that, unlike a burqa, does not have a facial covering (The Guardian, 2016). Labeled as a tactic to fight extremism, the burqa ban is one of many laws regulating Muslim practices and expressions of Muslim identity, such as pressuring imams to sign a charter of republican values (Williamson, 2020). The targeting of the Muslim community in France challenges the idea that secularism entails socially progressive policies. If secularism suppresses religious freedom, then perhaps it is not as progressive as many Westerners believe. This paper seeks to refute the idea that a secular country is inherently more progressive than a religious nation. I will evaluate the legal frameworks of a secular state and a religious state, focusing specifically on areas of law that impact religious expression. This study will center on France, a vocal supporter of secular values, and Bahrain, a Muslim state that has placed emphasis on improving religious freedom over the past decade. Ultimately, this paper argues that the inclusion of a secular clause in a nation's constitution does not necessitate a higher degree of religious freedom. Theoretical Framework In 1870, the term “secularism” was coined by British writer George Holyoake to describe a moral code that exists independently from religious doctrine. Today, secularism is defined as “ the principle of separation of the state from religious institutions” (Oxford Languages), though the degree to which secular countries separate church and state varies widely . For example, while Indonesia is constitutionally secular, the Aceh region of the country is under Sharia law. The discrepancies in how secularism manifests in countries’ legal structures necessitates further exploration on how secularism has historically been conceptualized and defined. Though many scholars have addressed secularism, much of the discourse has been from a Western perspective, which led to significant bias in early secular theory. Max Weber and Emile Durkheim’s work hypothesized that secularism and modernity were tied (Cannell, 2010); the authors identified the decline of traditional religious belief in Europe as the result of technological advancements and economic growth. One notable criticism of this theory came from Talcott Parsons, who claimed that the patterns of religious participation in Europe should not serve as an indicator for global secular trends (Cannell, 2010). Parsons further argued that Weber’s essay, The Protestant Work Ethic and the Spirit of Capitalism , exhibited a Eurocentric perspective (Cannell, 2010). Additionally, Protestant Ethic displayed sentiments of Western supremacy and presented capitalism as the ultimate economic system (Weber, 1905). Peter Berger is another critic of the theory that secularism is connected to modernization. He argued that traditional religious beliefs were not being abandoned and were instead evolving, and cited the development and upsurge of evangelism in the United States as evidence (Berger, 1999). Despite criticism, however, Weber and Durkheim’s theory remained prevalent for several decades (Cannell, 2010). This skewed academic perceptions of secularism and linked the concept to a Western and capitalist definition of progress. The absence of an internationally accepted definition of secularism, and varying religious, social, and governmental structures across the world further complicate how secularism is defined. However, newer discourse on secularism has reflected a more comprehensive view of the concept. In his 2003 book, Formations of the Secular, Talal Asad posited that the Western perception of secularism as progressive is inaccurate and underscored the Western European origins of contemporary secularism. Asad emphasized that liberal secularism should not apply to all societies and that it allows for the prohibition of certain religious practices; this paper adopts Asad’s stance and argues that the prohibition of religious practices legitimizes discriminatory policies. Further, Asad states that “the ideology of political representation in liberal democracies makes it difficult if not impossible to represent Muslims as Muslims … Because in theory the citizens who constitute a democratic state belong to a class that is defined only by what is common to all its members and its members only.” Using this lens, this paper asserts that French laws limiting religious practice in the public sphere further isolate religious minority groups. Asad’s contributions to secular discourse and his discussion on belonging and identity in a liberal democratic state lead to the question of whether constitutional secularism offers a higher degree of religious tolerance within a country when compared to a nation that has an established state religion. Through the collection and analysis of laws impacting religious practice in France and Bahrain, this paper seeks to support Asad’s conclusions and determine the degree to which constitutionally secular nations are able to promote religious freedom. Although previous comparative case studies on secular and Muslim countries are extremely limited, John Bowen’s article , Religious Discrimination and Religious Governance Across Secular and Islamic Countries: France and Indonesia as Limiting Cases (2010) offers a selection of preliminary findings and sheds light on areas in need of additional study. In the article, Bowen concluded that there is notable overlap in policy between France and Indonesia. Bowen argued that despite having different governmental structures and views on religion’s place in the public sphere, similar policies appeared in both countries. Additionally, Bowen called for further comparative study on the scope of this phenomenon to expand upon his research into other aspects and applications of secular policy. Building on observations on policy overlap between France and Indonesia, this paper explores the similarities and differences between France’s religious policies and those of Bahrain – a Muslim state. This comparison provides further insight into the legitimacy of the theory that secularism fosters higher levels of religious freedom. A. Measuring Religious Freedom The United Nations guarantees religious freedom in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The UDHR and ICCPR incorporate a number of components into their definition of religious freedom: the freedom to adopt, change, or renounce a religion, freedom from coercion, the right to manifest one’s religion, the freedom to worship, the ability to establish and maintain places of worship, the right to display religious symbols, the ability to observe holidays, and protection from discrimination on the basis of religion. While there is no single, defined approach to measuring religious freedom, the definition provided by the UDHR and ICCPR allows for guidance in evaluation. Additionally, multiple non-governmental organizations (NGOs) have used different metrics to measure religious freedom, which, when combined with international standards for defining religious freedom, aid in understanding how to accurately assess the subject. For example, the Pew Research Center (PRC) measures religious freedom by analyzing both social and governmental restrictions on religious action (2016). Since constitutional secularism exists within the confines of state law, this paper focuses solely on governmental policies surrounding religious expression. The social perception of other religions and religious freedom, while important, does not relate directly to the argument and would be best analyzed in further studies. A second way of measuring religious freedom is through the framework used in Freedom House’s annual freedom reports, which ranks countries on a scale of 1 to 4 (1 being the lowest possible score) in a number of categories, including freedom of religious expression. In its 2020 reports, Freedom House asks, “Are individuals free to practice and express their religious faith or nonbelief in public and private?” to determine the level of religious freedom in a country. This paper uses this question, the presence of governmental restriction on religious action (as outlined by the PRC), and the components of religious freedom listed by the UDHR and the ICCPR as a definition of what religious freedom looks like in practice and utilizes the definition for legal analysis. Though there are many laws governing religion in France and Bahrain, this paper focuses on laws that directly impact religious practice. The paper highlights seven categories of law as markers of religious freedom. The groups of law reflect a combination of the approaches used by the Pew Research Center and Freedom House, as well as relevant components of the UDHR and ICCPR’s definition of religious freedom; each section examines an aspect of government restriction imposed on free religious practice (apart from Constitutional Status, which offers critical context on the legal setting in the countries), and categories selected answer whether individuals are free to practice in public and private. III. Background France’s deeply entrenched notion of laïcité, which allows for extreme criticism of religion in the public sphere, is contrasted by Bahrain’s stringent anti-blasphemy policies that protect all registered religions from criticism. Each of these ideologies is rooted in the history and culture of the two nations. This difference in approaching public discourse is one of various examples where France and Bahrain diverge in their policies surrounding religion. To understand policy-making relating to religious practice in France and Bahrain, it is necessary to establish baseline knowledge on the histories of the nations. A. France Religious History and Laïcité — Before the French Revolution, Catholicism was the official religion of France. The conversion of Clovis I in the late 400s tied France to the papacy, and later monarchs enjoyed close relations with the Church. Hundreds of years of Catholic influence on the French monarchy and corruption within both institutions contributed to growing resentment towards the Church, which peaked during the early stages of the French Revolution and subsequent Reign of Terror. Demands for a secular government were followed by the persecution and murder of Catholic clergy members in the late 1700s. Though Napoleon Bonaparte reconciled with the Catholic Church in 1801, France did not reinstate Catholicism as the national religion. Over the next century, France continued to dechristianize the public sphere, culminating in the Loi du 9 décembre 1905 concernant la séparation des Églises et de l'État (1905 law on the separation of churches and state). Since the Revolution, France has developed a unique brand of secularism, laïcité, that goes beyond the separation of church and state, arguing that religious expression should remain outside the view of the public eye. This ideology has manifested itself in laws that prohibit the wearing of religious symbols in public schools and ban face coverings. The concept of laïcité has changed, however, since its original conception. As discussed by Eoin Daly (2012), secularism has moved beyond separating church and state and now acts as a justification to move differing religious identities into a private sphere and promote a French identity embedded in shared national values. A 2020 report by the French government offered clarification on the country’s reasoning surrounding laïcité: The freedom to express one’s religious convictions can be limited for the sake of public order, under conditions defined by the law. Freedom must, however, always be the rule, and the limitations the exception, in view of the constitutional principles enshrined in our Republic and France’s international commitments, with which such legal restrictions must be compatible. An additional outcome of laïcité is the prohibition of data collection pertaining to religious affiliation; this policy makes it somewhat difficult to gain a holistic picture of France’s religious landscape. The Religious Futures Project at the Pew Research Center (2016) estimates that 58.1% of the population is Christian, 8.3% is Muslim, and 31.9% is unaffiliated as of 2020. Notable trends include growth in France’s Muslim population (due to increased immigration from former French colonies in Africa), a consistent decrease in people identifying as Catholic, and increased growth in those identifying as unaffiliated. Of the 12 national holidays in France, 7 celebrate Catholic events, which seemingly contradicts France’s strict separation of national and religious affairs. France is currently scored as 3 out of 4 on freedom of religious expression by Freedom House (2020). Recent Events and Political Climate — Law surrounding religious practice in France has been heavily influenced by numerous terrorist attacks over the past decades. During the 1980s and 90s, France saw various attacks by numerous groups: Hezbollah, an integrist Catholic group, the Armed Islamist Group, and other non-religious groups like Action Directe (Shapiro & Suzan, 2003). The 2000s brought more deadly attacks, the majority of which had connections to Islamist groups. Following a series of bombings, shootings, and stabbings by various Islamist groups in 2014 and 2015, France enacted laws increasing government surveillance (Law Nº 2669, 2015) and anti-terrorism efforts (Law Nº 1353, 2014). Terrorist attacks led to a renewed emphasis on laïcité in the political sphere. Far-right isolationist parties led by politicians like Marine Le Pen incorporated anti-Muslim messaging in their campaigns, promising French voters safety from radical Islam (Fieschi, 2020). In this climate of frequent terror attacks and the rise of far-right parties, France created and amended legislation surrounding religious practice. B. Bahrain History — Bahrain, located off the coast of Saudi Arabia, fell under the control of various empires before declaring independence from the British in 1971 (Gardner, 2017). Known for its pearl beds and freshwater springs, the island was seen as highly desirable by political entities. This caused numerous changes in leadership. From the 1400-1800s, the territory of Bahrain was controlled by the Omanis, Portugal, Persia, the ‘Utub (a Sunni tribal confederation), and the United Kingdom (Gardner, 2017). Throughout the centuries of changing leadership, Bahrain developed a diverse population. The pearl trade brought merchants from all over the world, and the territory was exposed to many ideologies, religions, and cultures as a result of the various empires that had taken control of the island. Though small populations of Jewish, Hindu, and Christian people have lived in Bahrain over past centuries, Islam has been the predominant religion since its introduction to the indigenous population in the 640s (Gardner, 2017). The majority of Muslim Bahraini people identify as Shi’a. However, a smaller Sunni elite has ruled the country since the arrival of the Sunni al-Khalifa family, who came with the ‘Utub. Bahrain was declared a monarchy in 2002, headed by King Hamad bin Isa al-Khalifa, who remains in power today. According to the Religious Futures Project at the Pew Research Center (2016), 69.7% of the population is Muslim, and within that group, roughly 60% is Shi’a and 35-40% is Sunni; 14.1% of the population is Christian, 10.2% is Hindu, and 2% is unaffiliated as of 2020. Bahrain is currently scored as 1 out of 4 on freedom of religious expression by Freedom House (2020). Recent Events and Political Climate — In 2011, Bahrain served as a starting point for the Arab Spring in the Gulf countries. The country saw massive protests from the Shi’a community, who decried unfair treatment by the Sunni government. The government reacted by killing and arresting protestors, destroying Shi’a mosques, and dismantling the traffic circle that had served as the uprising’s epicenter. Following condemnation by the international community and human rights organizations, King Hamad launched an investigation and resolved to enforce policies to improve tensions between the Shi’a and Sunni groups (U.S. Commission on International Religious Freedom Report on Bahrain, 2020). While the initial success of these policies was contested, the government has taken significant steps in the past decade to ameliorate the state of religious freedom in Bahrain (USCIRF, 2020). The government, which had rescinded the citizenships of 1000 Bahrainis (most of whom were Shi’a) due to alleged security threats, reinstated over half of their citizenships in 2020 (USCIRF, 2020). While typically met with government hostility, the Shi'a holiday Ashura remained largely peaceful in 2020 and 2021; discourse concerning Ashura between the Sunni government and Shi’a clerics has eased tensions between the parties to allow for the celebration of the holiday. However, despite improvement, tensions remain between the Sunni and Shi’a communities. In terms of relations with non-Muslim groups, the Bahraini government is notably tolerant of other religions. There are 19 recognized religions in the country, all of which are able to practice their respective beliefs freely. IV. Methodology A. Overview This study aimed to determine whether the legal framework of a secular state fosters higher degrees of religious freedom than that of a religious state. This paper uses a comparative case study approach to ensure a balanced review of France’s domestic policy concerning religious practice. Further, the comparative case study model offers critical insight into the caveats of secular policy when implemented on a national scale. Bahrain was chosen as a comparative subject because it is a Muslim state in which members of various other religious groups reside. The primary goal of data collection was to gain a deeper understanding of the laws impacting religious practice in both countries. To effectively compare the two countries, specific areas of policy were chosen (listed in Table I) following the combined framework of Freedom House and the Pew Research Center described in the Theoretical Framework section. Primary qualitative data concerning policy was taken from law databases published by the French government. Secondary qualitative data was extracted from reports on Bahrain and France by the United States Commission for Religious Freedom (USCIRF), the United States embassy, and Freedom House country reports. The search process yielded a number of pertinent laws surrounding religious practices in France and Bahrain. B. Comparing Policy on Domestic Religious Practice Information on France’s laws was sourced from the government. Translations were provided by the author unless indicated otherwise. The United States State Department reports informed general knowledge on the legal framework surrounding religious practice. Due to the general inaccessibility of translated laws from a Bahraini government source, information about religious laws in Bahrain was obtained from United States government reports. Recognizing the potential bias of the United States government, only objective data (such as the description of laws) was used in this paper. Areas of crucial law were chosen after general study on legal frameworks surrounding religious practice; the categories of policy listed in Table I were selected because they represent the most direct interaction between the government and religious groups and reflect international standards for religious freedom as expressed by UDHR and ICCPR documents. It was imperative that both countries had laws falling under each assigned category, otherwise, policies could not be compared. Laws were evaluated based on the level to which they promoted or inhibited freedom of religious expression, and a compare and contrast approach was used, reflecting the style of Bowen. Larger implications and enforcement of the laws were not considered, as the repercussions of policy were too far-reaching to effectively encompass in this comparative case study. Instead, analysis of laws consisted of identifying common themes and key similarities and differences between the legal frameworks of France and Bahrain. Other peripheral areas of law could be colored by religious or secular ideologies, such as marriage laws. However, to keep the scope of this study appropriately narrow, peripheral policies were not considered. V. Results: Analysis of Legal Frameworks of France and Bahrain A. Constitutional Status The constitutional statutes of France and Bahrain are, as discussed earlier, on opposite sides of the ideological spectrum. These religious designations are detailed below for context. (i) France Article 1 of the French constitution states “France shall be an indivisible, secular, democratic and social Republic.” (ii) Bahrain Article 2 of the Bahraini constitution states “The religion of the State is Islam. The Islamic Shari’a is a principal source for legislation.” B. Anti-Discrimination Laws (In Reference to Religion) Both France and Bahrain have clauses in their constitutions prohibiting discrimination against others on the basis of faith. Beyond their respective constitutions, both countries have enacted laws forbidding hiring and workplace discrimination in relation to religious affiliations, as listed below. (i) France [The internal regulation] may not contain provisions which would prejudice the employees because of their sex, morals, sexual orientation, age, family situation, origins, opinions, religious beliefs, physical appearance, name, or disability, when they have equal professional capacity capability (L. 122-35, 2008). (ii) Bahrain The labor law prohibits discrimination in the public sector on grounds of religion or faith. The law also stipulates recourse through a complaint process to the Ministry of Labor and Social Development to legal bodies in the event of discrimination or dismissal in the work place on the basis of religion (U.S. Commission on International Religious Freedom, Bahrain, 2019). Analysis — The anti-discrimination clauses in both the countries’ constitutions have been further developed into active laws. The overlap of anti-discrimination policy in France and Bahrain shows that, in this case, a secular country and a religious state are able to promote religious freedom in the same capacity. C. Registration with the Government and Government Funding Both the French and Bahraini governments have registration processes in place for religious organizations. Recognition of a religious group by the respective governments allows for financial support, whether that comes in the form of subsidization or tax-exempt status. As government registration is tied to financial support in each country, the process allows the state to maintain relative control over the religious makeup of the nation; this is achieved to varying degrees in accordance with the requirements of the law. (i) France According to the 2019 USCIRF report on France: In France, religions are not required to register with the government. However, in order to receive official recognition, tax-exempt status or financial aid, religious groups must go through a number of processes. To receive tax-exempt status and official recognition as a religion, groups must apply as associations of worship, and to receive government funding, groups can apply as cultural associations. Religious organizations are able to qualify as both an association of worship and a cultural association, thus receiving tax-exempt status and government funding. It should be noted, however, that government funding is permitted only to go towards non-religious activities hosted by a religious group, such as educational programming. Despite Article 2 of the Law of 1905 Concerning the Separation of Church and State stating “ The Republic does not recognize, pay or subsidize any religion”, the French government owns and operates religious buildings built before 1905. Approximately 90% of Catholic buildings in France are subsidized by the government, while 12% of Protestant churches and 3% of Jewish temples are subsidized as a result of the law. There are no Buddhist or Muslim centers of worship subsidized by the government (French Senate report, 2015). (ii) Bahrain According to the 2019 USCIRF report on Bahrain: Bahrain’s government requires that religions register in accordance with their faith. Sunni and Shi’a organizations register with the Ministry of Justice and Islamic Affairs and Endowments and register further with the Sunni and Shi’a Waqfs to receive funding. Non-Muslim groups must register with the Ministry of Labor and Social Development, during which they must provide a number of details (including minutes from meetings, personal information on founders and the group’s bylaws). Religious groups (Muslim and non-Muslim) are not allowed to receive funding from foreign donors, and money collection is monitored by the government. Analysis — Bahrain’s laws surrounding the funding of religious groups and registration with the government are more stringent than France’s. However, while France does not require registration, restrictions from funding and tax-exempt status for non-registered groups act as significant incentives in pushing organizations to submit an application to the government. In both cases, the government seeks access to information on religious groups, though Bahrain attempts to monitor activities to a more extreme extent than France. While this does not necessarily infringe on the status of religious freedom, the laws in both countries allow significant room for discriminatory funding. An example of this was displayed in a 2015 French Senate report that noted the vast majority of France’s 2,500 mosques receive little to no public funding while Catholic institutions are almost entirely subsidized, but pointed to Muslims’ inability to organize and register with the government as the reason for funding inequality (2015 French Senate report, 23). As this claim is difficult to quantifiably prove, it allowed the government plausible deniability on the lack of funding for Muslim organizations. In Bahrain, disproportionate funding for Muslim organizations is enshrined in the country’s laws. While France’s legal framework surrounding registration is not as strict as Bahrain’s in this case, policies in both countries enable an unequal distribution of funding. D. Religion in the Public Sphere: Freedom of Speech and Religious Symbols The French and Bahraini approaches to religion in the public sphere offer vastly different interpretations of the promotion of religious freedom. Nevertheless, both countries are stringent in their application of the law. (i) France France has various laws protecting freedom of speech. In reference to religion, Article 10 of the 1789 Declaration of Human and Civic Rights states that “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” According to the 2019 USCIRF France report: In accordance with secular law, people employed by the government are not allowed to wear signs of religious affiliation in the workplace or in public spaces. A 2010 law prohibits face coverings in public places, including the wearing of a niqab or burqa; refusing to remove the face covering can result in a 150 euro fine. (ii)Bahrain Bahrain has anti-blasphemy laws that apply to all religions. The penal code calls for punishment of up to one year’s imprisonment or a fine of up to 100 dinars ($270) for offending one of the recognized religious groups or their practices, or for openly defaming a religious figure considered sacred to members of a particular group. The law stipulates fines or imprisonment for insulting an institution, announcing false or malicious news, spreading rumors, encouraging others to show contempt for a different religious denomination or sect, illegally gathering, and advocating for a change of government, among other offenses. The law prohibits anti-Islamic publications and broadcast media programs and mandates imprisonment of no less than six months for ‘exposing the state’s official religion to offense and criticism (USCIRF, Bahrain, 2019). Non-Muslims are not required to wear traditional Muslim clothing. The law allows non-Muslim places of worship to display religious symbols. Analysis — In summary, French law allows for extensive freedom of speech in reference to religion while Bahrain maintains strict laws on speech in reference to religion. Both of these policies purport to uphold religious equality; in France, one may critique any religion, while in Bahrain there is no tolerance for criticism of any religion. These laws are a clear example of where France and Bahrain diverge ideologically, but the difference in approach does not mean one policy is more effective than the other in promoting equal access to religious expression. In France, varying definitions of hate speech and the government’s high tolerance for criticism of religion can be exploited to target minority religions. In Bahrain, anti-blasphemy laws protect all religious groups from hate speech, but policy blatantly favors the interests of Muslim groups. While the laws in France and Bahrain are opposites in intention, they both result in bias towards the dominant religious group. When comparing the two countries, Bahrain allows for more freedom in expressing religious affiliation in public spaces. French laws prohibiting face coverings directly infringe on Muslim women’s abilities to fulfill religious duties, and the ban of ostentatious religious symbols in public settings does not allow citizens to express their religion freely. Religious dress is a significant aspect of many traditions, including Christianity, Islam, and Judaism. The prohibition of wearing religious garments violates an adherent’s beliefs and negates religious freedom. Bahrain does not have specific laws regarding religious dress, though it should be noted that societal norms dictate a culture of modesty. That being said, as this paper is reviewing formal law, Bahrain is significantly less stringent in the ruling of religious dress from a policy perspective. E. Religion in Education (i) France France’s attempts to keep religion out of the public sphere are clearly reflected in policies surrounding religion in the public school system. Public schools are secular. The law prohibits public school employees from wearing visible signs of religious affiliation and students from wearing “conspicuous religious symbols,” including the Muslim headscarf, Jewish skullcap, Sikh turban, and large Christian crosses (USCIRF, France, 2019). In terms of private education: By law, the government subsidizes private schools, including those affiliated with religious organizations. In 98 percent of private schools, in accordance with the law, the government pays the teachers’ salaries, provided the school accepts all children regardless of their religious affiliation. The law does not address the issue of religious instruction in government-subsidized private schools or whether students must be allowed to opt out of such instruction (USCIRF, France, 2019). (ii) Bahrain Because Bahrain is a Muslim state, religious instruction is heavily incorporated in the school system. The law regulates Islamic religious instruction at all levels of the education system. The government funds public schools for grades 1-12; Islamic studies are mandatory for all Muslim students and are optional for non-Muslims. Private schools must register with the government and, with a few exceptions (for example, a foreign funded and foreign operated school), are also required to provide Islamic religious education for Muslim students. Private schools wishing to provide non-Islamic religious education to non-Muslims must receive permission from the Ministry of Education (USCIRF, Bahrain, 2019). In terms of private education: The government also permits non-Muslim groups to offer religious instruction to their adherents in private schools (USCIRF, Bahrain, 2019). Analysis — While France maintains secularism within the educational system, the banning of religious symbols in schools infringes on religious freedom. As addressed earlier, the prohibition of religious garb violates the ability of an individual to freely practice their belief. Although Bahrain emphasizes Islam in education, the ability for non-Muslim students to opt out maintains religious freedom. Therefore, Bahrain allows for a higher degree of religious expression within the education system. F. Anti-Terrorism Policy The other sections of law described above have direct influence on the ability of religious adherents to practice their belief in the public and private spheres. Though anti-terrorism policy may not initially appear as an area of law that has an impact on religious freedom, both France and Bahrain have employed discriminatory practices labeled as tactics to fight extremism. (i) France The French perception of religion’s ties to terrorism is demonstrated by legislation that specifically targets religious institutions. Counterterrorism legislation grants prefects in each department the authority to close a place of worship for a maximum of six months if they find comments, writings, or activities in the place of worship “provoke violence, hatred or discrimination or the commission of acts of terrorism or praise such acts of terrorism.” The management of the place of worship has 48 hours to appeal the closure decision to an administrative court. Noncompliance with a closure decision carries a six-month prison sentence and a fine of 7,500 euros ($8,400) (USCIRF, France, 2019). In March 2021, a bill aimed at combating radicalism and separatism (titled Supporting Respect for the Principles of the Republic) was passed through the lower house of Parliament and went to the Senate. On April 13th, 2021, the Senate added stipulations to the bill that were viewed as harsher than the initial proposals (Woods, 2021). The original bill would, among other things, restrict people from home-schooling their children, crack down on polygamy and forced marriages, and make the sharing of someone’s private life and location illegal (N° 3649 rectifié, 2021). Excerpts from the edited bill are detailed below: If passed, the bill would, among other things, prohibit the wearing of the veil and other ostentatious religious symbols to persons accompanying school trips, allow the internal regulations of swimming pools and public bathing areas to prohibit the wearing of the burkini, and prevent the issuance and renewal of residence permits for individuals who are found to have expressed a rejection of the principles of the Republic (Loi confortant le respect des principes de la République, 2021). (ii) Bahrain There are penalties of up to five years in prison for encouraging or possessing materials that support “terrorist activities.” Bahrain imposed one round of sanctions against individuals and entities affiliated with the Iranian regime’s terror-support networks in the region. The government is also able to expel individuals who are suspected of terrorist activity (U.S. State Department, Report on Terrorism, Bahrain, 2019). In terms of reconciliation efforts between the Sunni and Shi’a communities: In coordination with the Supreme Council for Islamic Affairs, a team of Ministry of Education-appointed experts routinely reviews and develops the Islamic studies of the public school curriculum to emphasize shared Islamic values between different Sunni and Shi’a schools of thought, reject extremism, and promote tolerance and coexistence (USCIRF, Bahrain, 2019). Analysis — In both countries, many of the laws surrounding anti-terrorism efforts can be easily exploited to target specific groups of people. In France, the closing of worship centers has solely impacted mosques, while Bahrain’s expulsion policy has primarily impacted leaders of the Shi’a community. France’s new bill comes on the heels of a speech by President Macron condemning separatism in the country. While the legislative language does not name any religion directly, the explanatory statement preceding the bill states the following: An insidious but powerful communitarian entryism is slowly destroying the foundations of our society in certain areas. This entryism is essentially of Islamist inspiration. It is the manifestation of a conscious, theorized, politico-religious political project, the ambition of which is to make religious norms prevail over the common law that we have freely given ourselves (Loi nº 3649, 2021). Because the bill refers to Islamism as the reason for the legislation, much of the proposal is aimed directly at Muslim communities. The recently added stipulations show a harsher, more direct targeting of the Muslim community in France. Anti-terrorism policy in Bahrain targets members of the Shi’a community who are seen as causing separatism. This was prevalently displayed when the kingdom expelled a number of Shi’a individuals, who were eventually granted re-entry when no evidence of terrorist activity was found. In this sense, Bahrain and France are notably similar in their reasoning and justification for anti-extremist laws. VI. Discussion The results support the argument that a constitutionally secular country does not necessarily foster a higher degree of religious freedom than a religious state. Despite being ideologically opposed in reference to religion in government, France and Bahrain share overlaps in policy, as seen in the Anti-Discrimination Laws, Registration with Government and Government Funding, and Anti-Terrorism Policy sections of the analysis. Beyond policies that target or disproportionately impact a specific religious group, France and Bahrain employ inclusive anti-discrimination laws in their labor codes. In this case, both countries pledge to condemn religious discrimination in the hiring process or workplace. The countries employ similar registration policies for religious groups, directly tying legal access to practice and tax incentives to cooperation with state entities. A third overlap is in anti-terrorism efforts, often labeled as anti-extremist policies. France and Bahrain have enacted a number of alarming anti-extremism laws, often using vague wording (such as “terrorist activities” or “rejection to the principles of the Republic”) that hand significant power to the government’s interpretations of actions or words; the wording of laws allows for exploitation of the policies to fulfill specific agendas, as seen by Bahrain’s expulsion of Shi’a individuals and French policymakers’ justification for the “Supporting Respect for the Principles of the Republic” bill. While not all of the measures taken to combat extremism negatively impact specific religious communities, both countries have used anti-terrorism policies to target religious groups perceived as threatening to the state. A clear demonstration of the negative impacts of legislative rhetoric is reflected in the interchangeability of anti-terrorist and anti-extremist policies; in both countries, the targeted religious groups have become synonymous with terrorism. The similarities in the justifications and immediate outcomes of laws surrounding religious practice in France and Bahrain aid in showing that the label of “constitutionally secular” does not equate to increased levels of religious freedom, as both states are equally capable of implementing policies that positively and negatively impact religious expression. In the sections Religion in Education and Religion in the Public Sphere , France and Bahrain display significant differences in approach. In both cases, Bahrain exhibited higher degrees of tolerance for religious practice in public and for minority religious groups in general. France’s policies on wearing ostentatious religious symbols in public spaces disproportionately impact the Muslim and Jewish communities, all of whom have integrated religious garb into their belief systems. Further, while Bahrain emphasizes Islam in education, the country allows for non-Muslim students to opt out of those classes and does not prohibit students from wearing alternative religious symbols. France has yet to create laws around the ability of students to opt out of religious instruction at private schools, despite most private schools being funded by the government. France’s integration of discriminatory secular policy into the public sphere and the education system strengthens the argument that states with official religions, like Bahrain, can allow for higher levels of religious freedom in some areas of society. A potential explanation for this is how France and Bahrain approach religious identity. At its core, France’s secular ideology attempts to ignore religious identity altogether. Nonetheless, the rise of radical Islam in the country, a Christian-majority population, and the dynamics between France and Muslim-majority former colonial countries led to the French Muslim community becoming an easily-targeted scapegoat. In Bahrain, however, the historical presence of non-Muslim religions and a national understanding of the importance of spiritual affiliation have allowed for a legal framework cognizant of religious identity. This is not to say that Bahrain has created the ideal legal structure, but instead that the recognition of religious affiliation’s significance allows for development in the realm of religious freedom. France has shown regression in freedom of religious expression where Bahrain has displayed consistent progress; this trend further supports the theory that some religious states are appropriately situated to cultivate a society that offers higher degrees of religious freedom. The findings of this paper are consistent with Asad’s theory on secularism’s potential to be discriminatory and builds on Bowen’s observations of the French and Indonesian judicial systems. As showcased by secular laws in France disproportionately targeting and impacting Muslim individuals, the label of laïcité creates a wall of Western liberal ideology for policymakers to hide behind. Bowen argues that France and Indonesia, despite opposing views on the role of religion in the judicial system, adopt very similar policy positions. Bowen’s focus on how each of the countries deals with religious discrimination in the courts yields primarily positive observations, and he notes that the foundations of both systems attempt to promote fairness and equality. Bowen’s findings differ from the analysis of laws in this paper, which is likely because this paper focused on policy reaching beyond anti-discrimination laws and did not note the outcomes in judicial proceedings concerning religious discrimination. Even with the differences in tone between Bowen’s findings and the analyses in this paper, the outcomes of the study are in alignment with Bowen’s conclusion; despite being on different ends of the ideological spectrum, a secular state and a religious state bear significant resemblance to each other in terms of the legal framework. A. Addressing Inconsistencies with Freedom House The laws explored in this study paint a picture of France and Bahrain as both employing policies that negatively impact a specific religious group. In some instances, Bahrain displayed higher degrees of religious tolerance, despite the West’s view of secularism as more progressive. However, the findings of this paper are not reflected in Freedom House’s scoring of France and Bahrain on religious freedom in their respective 2020 reports. As discussed earlier, the NGO ranked France a 3 out of 4 and Bahrain a 1 out of 4 in response to the following question: “Are individuals free to practice and express their religious faith or nonbelief in public and private?” The laws discussed in the analysis portion of this paper display France’s various policies against public displays of religious affiliation; these laws blatantly interfere with expression of religious faith in public, implying that France should be scored lower than a 3 within the Freedom House framework. In the case of Bahrain, while there have been numerous infringements on religious freedom (specifically to target the Shi’a community), the report did not provide sufficient evidence to rank the country significantly below France. The report even notes that “non-Muslim minorities are generally free to practice their faiths.” Freedom House then discusses government discrimination against the Shi’a population by citing the events of the Arab Spring in 2011 (a reference that does not reflect the contemporary political atmosphere in Bahrain) and the arrest of Shi’a clerics accused of spreading messages of separatism. However, the report also states that “Shiite communities are free to carry out religious observances, such as the annual Ashura processions,” which exhibits a governmental commitment to religious freedom. Conversely, the 2020 French report describes current tensions saying, “Islamophobic rhetoric from prominent politicians and public figures on both the left and right is not uncommon. Multiple attacks at mosques throughout the country occurred in 2019.” After a review of the 2020 Freedom Reports for France and Bahrain, it appears that there is inconsistency in the way Freedom House scores religious freedom. While there are numerous valid criticisms of the state of religious freedom in both countries, Freedom House ignored many laws in both France and Bahrain when scoring, resulting in a potentially skewed and inaccurate representation of the legal frameworks that unjustifiably favors France. B. Limitations of Study This was a limited case study, so these findings are merely a reflection of the laws and policies addressing religious practice in France and Bahrain. While the framework used in this study could be applied to comparing religious freedom in other nations, other cases were not considered in this paper. Further limitations include the scope of the study, which consisted of governmental restrictions and focused on legal frameworks but did not address political rhetoric involvement in international treaties or agreements, or relations with secular and religious states. Further, this paper did not consider societal restrictions, which include the presence of anti-religious attacks, non-governmental groups that target religious communities, online rhetoric, and general hostility towards certain religious groups. Studies that explore these factors are necessary to gain a holistic understanding of the differing degrees of religious freedom in secular and religious countries. VII. Conclusion Comparing seven key areas of law within the French and Bahraini legal frameworks shows that there is significant overlap in legislation, intention, and policy outcomes. But how does this comparison link to the larger discussion around religious freedom and the validity of secularism? France, a country that prides itself on the value of laïcité, implements a number of discriminatory policies that predominantly impact Muslim citizens. In the public sphere, individuals who belong to faiths that utilize clothing as an expression of affiliation cannot practice their religions to the full extent. The idea of separating the religious self from the public self displays an understanding of religious belief as a secondary identity. For many, spiritual affiliation is a primary identity. Therefore, French laws surrounding religious practice are not applicable in a universal sense, nor do they foster a wide breadth of religious freedom for all faiths. Religious states, who are typically viewed as unable to foster high degrees of religious freedom, have equal opportunity to promote a religiously pluralistic society through legislation. While not all religious states choose to foster a space for minority religious groups, nations like Bahrain have made significant efforts to advance religious freedom. Though this study was limited to France and Bahrain, the countries are not outliers. While Bahrain deviates somewhat from other Gulf nations, Qatar, and to a lesser extent Oman, have legal frameworks in place to support spiritual pluralism and religious freedom. Other countries, such as Bhutan, Liechtenstein, Thailand, Andorra, and Brunei, are religious states viewed as fostering religious freedom. While there are religious states that suppress religious freedom, the analysis suggests that religious countries may be uniquely positioned to create legal frameworks inclusive of a population that views religious affiliation as a primary identity. Although Bahrain has not yet reached the point of fostering equal religious freedom for all groups, national policies show an understanding of the importance of ritual practice and religious identity. Beyond supporting the hypothesis, the findings of this paper suggest the need for a shift in thinking when evaluating secular and religious states. As displayed by the inconsistencies in scoring throughout the Freedom House annual reports on France and Bahrain, the West remains biased in favor of secular European systems of government. Moving forward, Western NGOs and government agencies should consider viewing religious affiliation as a primary identity when assessing legal frameworks and government policies instead of using a secular lens as the default perspective. Further research on the capacities of religious states to promote religious freedom is necessary to coherently refute the notion of inherently progressive secularism and change the Western interpretation of which ideologies possess the ability to foster a free and prosperous society. References Legal Sources Government of the French Republic Government of the French Republic. “Article L122-35 - Code Du Travail.” Legifrance.gouv.fr , 2008. https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006646821/2021-04-25/ . Government of the French Republic. Nationale, Assemblée. “Projet De Loi Nº 3649 Confortant Le Respect Des Principes De La République.” Assemblée nationale, 2020. https://www.assemblee-nationale.fr/dyn/15/textes/l15b3649_projet-loi . Government of the French Republic. “Declaration of the Rights of Man.” 1789. https://avalon.law.yale.edu/18th_century/rightsof.asp . Government of the French Republic. “Loi du 9 décembre 1905 concernant la séparation des Églises et de l'État.” 1905. https://www.legifrance.gouv.fr/loda/id/LEGITEXT000006070169/ . Government of the French Republic. “Loi n°1353 du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme (1).” 2014. https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000029754374 . Government of the French Republic. “Loi n° 2669, Projet de loi relatif au renseignement.” 2015. https://www.assemblee-nationale.fr/14/projets/pl2669.asp . Government of the French Republic. “Freedoms and Prohibitions in the Context of “Laïcité” (Constitutional Secularism).” 2020. https://www.gouvernement.fr/sites/default/files/contenu/piece-jointe/2017/02/libertes_et_ interdits_eng.pdf . Senate of the French Republic. “Rapport d’information fait au nom de la délégation aux collectivités territoriales et à la décentralisation (1) sur le financement des lieux de culte.” 2015. https://www.senat.fr/rap/r14-345/r14-3451.pdf . Government of the Kingdom of Bahrain The Kingdom of Bahrain. “The Constitution of Bahrain.” 2002. https://www.constituteproject.org/constitution/Bahrain_2002.pdf . Government of the United States of America United States Commission for International Religious Freedom. “International Religious Freedom Report: Bahrain.” 2019. https://www.state.gov/report/custom/ca86c87b9c/ . United States Commission for International Religious Freedom. “International Religious Freedom Report: France.” 2019. https://www.state.gov/reports/2019-report-on-international-religious-freedom/france/ . U.S. State Department, Bureau of Counterterrorism. “Country Report on Terrorism, Bahrain.” 2019. https://www.state.gov/reports/country-reports-on-terrorism-2019/bahrain/ . The United Nations Office of the High Commissioner of Human Rights. “International Standards- Special Rapporteur on freedom of religion or belief.” 2022. https://www.ohchr.org/en/special-procedures/sr-religion-or-belief/international-standards . Other Sources Asad, Talal. Formations of the secular: Christianity, islam, modernity . Stanford University Press. 2003. Ataman, Joseph. “A vitriolic election campaign marked by anti-Islam narratives has left many French Muslims feeling marginalized.” CNN. April 22, 2022. https://www.cnn.com/2022/04/22/europe/french-muslim-voters-2022-election-intl-cmd/index.html . “Bahrain: Freedom in the World 2020 Country Report.” Freedom House. 2020. https://freedomhouse.org/country/bahrain/freedom-world/2020 . Berger, Peter L. The desecularization of the world: Resurgent religion and world politics . Ethics and Public Policy Center, 2008. Bowen, J. R. “Religious Discrimination and Religious Governance Across Secular and Islamic Countries: France and Indonesia as Limiting Cases.” American Behavioral Scientist, 53 (2010): 1749-1762. doi:10.1177/0002764210368095. Cannell, Fenella. “The Anthropology of Secularism.” Annual Review of Anthropology 39, no. 1 (2010): 85-100. https://doi.org/10.1146/annurev.anthro.012809.105039 . Daly, E. “The Ambiguous Reach of Constitutional Secularism in Republican France: Revisiting the Idea of Laicite and Political Liberalism as Alternatives.” Oxford Journal of Legal Studies, 32 (2012): 583-608. doi:10.1093/ojls/gqs011. Erlanger, Steven. “France Enforces Ban on Full-Face Veils in Public.” The New York Times. April 11, 2011. https://www.nytimes.com/2011/04/12/world/europe/12france.html . Fieschi, Catherine. “Muslims and the secular city: How right-wing populists shape the French debate over Islam.” Brookings. March 09, 2022. https://www.brookings.edu/research/muslims-and-the-secular-city-how-right-wing-populi sts-shape-the-french-debate-over-islam/ . “France: Freedom in the World 2020 Country Report.” Freedom House 2020. https://freedomhouse.org/country/france/freedom-world/2020 “French police make woman remove clothing on Nice beach following burkini ban.” The Guardian. August 23, 2016. https://www.theguardian.com/world/2016/aug/24/french-police-make-woman-remove-burkini-on-nice-beach Gardner, Andrew M. City of Strangers: Gulf Migration and the Indian Community in Bahrain . Cornell University Press, 2017. Holyoake, George Jacob. Principles of Secularism , Chapter 2. Project Gutenberg, 1870. Le Pen, Marine. “22 Mesures Pour 2022”. 2022. https://mlafrance.fr/pdfs/22-mesures-pour-2022.pdf . “Religions in France: French Religion Data: GRF.” Pew-Templeton Global Religious Futures Project. http://www.globalreligiousfutures.org/countries/france#/?affiliations_religion_id=0&affiliations_year=2010®ion_name=All%20Countries&restrictions_year=2016 . “Religions in Bahrain: Bahrain Religion Data: GRF.” Pew-Templeton Global Religious Futures Project. http://www.globalreligiousfutures.org/countries/bahrain/religious_restrictions#/?region_name=All Countries&restrictions_year=2016. Ruck, Damien J., Bentley, Alexander R., & Lawson, Daniel. “Religious change preceded economic change in the 20th century.” Science Advances, 4 (2018). doi:10.1126/sciadv.aar8680. “Secular Countries.” World Population Review. 2020. https://worldpopulationreview.com/country-rankings/secular-countries . Shapiro, Jeremy, Suzan, Benedicte. “The French Experience of Counter-terrorism.” Survival, 45 (2003): 67-98. doi:10.1093/survival/45.1.67. Weber, Max. The Protestant ethic and the spirit of capitalism. Scribner/Simon & Schuster, 1905. Williamson, Lucy. “France Islam: Muslims under pressure to sign French values charter.” BBC News. December 01, 2020. https://www.bbc.com/news/world-europe-55132098 . Woods, Mike. “French Senate approves toughened version of bill accused of stigmatising Islam.” RFI. April 13, 2021. https://www.rfi.fr/en/france/20210413-french-senate-approves-toughened-version-of-bill- accused-of-stigmatising-islam-religion-muslims .

Rewriting the Antitrust Setlist: Examining the Live Nation-Ticketmaster Lawsuit and its Implications for Modern Antitrust Law Katya Tolunsky Author Malcolm Furman Arjun Ray Editors I. Introduction On November 15, 2022, the music industry witnessed an unprecedented event that would become a turning point in discussions about ticketing practices and market dominance. Millions of devoted Taylor Swift fans were devastated when they failed to secure tickets for the highly anticipated Eras Tour. The ticket release sparked chaos, with fans enduring hours–even days–on Ticketmaster’s website, battling extended delays, technical glitches, and unpredictable price fluctuations. Despite their unwavering persistence, many “Swifties” were left empty-handed. This high-profile debacle ignited a firestorm of criticism from politicians and consumers alike, who questioned Ticketmaster’s apparent lack of preparedness for the overwhelming demand. While not an isolated incident of consumer dissatisfaction, the scale of this event and the passionate outcry from Swift’s fan base catapulted long-standing issues with ticket availability, pricing, and fees into the national spotlight. The “Swift ticket fiasco” became a catalyst for broader scrutiny of Ticketmaster’s business practices. Lawmakers and consumer advocacy groups called for investigations into the company’s business model, while accusations circulated about Ticketmaster leveraging its market power to stifle competition and maintain high fees. This perfect storm of events set the stage for a renewed examination of antitrust concerns in the live entertainment industry, bringing the anticompetitive practices of Live Nation-Ticketmaster into the public political and legal spotlight. On May 23, 2024, the U.S. Department of Justice (DOJ) filed a civil antitrust lawsuit against Live Nation Entertainment (the merged company) for allegedly violating the terms of a 2010 settlement, which required Ticketmaster to license its software to competitors and prohibited Live Nation from retaliating against venues that use competing ticketing services, and engaging in anticompetitive practices. The DOJ’s complaint argues that Live Nation has used its control over concert venues and artists to pressure venues into using Ticketmaster and to punish those that don’t, effectively excluding rival ticketing services from the market. the DOJ is suing Live Nation-Ticketmaster for violating Section 2 of the Sherman Antitrust Act and monopolizing markets across the live concert industry. This suit raises important questions about the application of the Sherman Act and the evolving approach to antitrust enforcement in the United States. At the heart of this case lies a fundamental clash between two competing philosophies of antitrust enforcement. For decades, the Chicago School approach has dominated American antitrust law, focusing narrowly on consumer welfare through the lens of prices and economic efficiency. However, a new perspective has emerged to challenge this framework. The “New Brandeis” movement, named after Supreme Court Justice Louis Brandeis and championed by current FTC Chair Lina Khan, advocates for a broader understanding of competition law that considers market structure, concentration of economic power, and impacts on democracy—not just consumer prices. As this movement antitrust movement gains prominence and momentum, the Live Nation-Ticketmaster case represents a critical test for the application of Section 2 of the Sherman Act in the digital age. The outcome of this case will set important precedents for how antitrust law is applied to companies that dominate multiple interconnected markets. This paper seeks to analyze the evolution of antitrust law in the context of this Live Nation-Ticketmaster lawsuit. First, this paper details the 2010 LiveNation/Ticketmaster merger, the extensive criticism of this merger, and the terms of the merger. Second, this paper delves into the relevant history of the Sherman Antitrust Act and the evolution and enforcement of antitrust and monopoly law in the last one hundred years. Additionally, to illustrate the scope of anticompetitive behavior and ways in which past antitrust cases have been prosecuted, the paper examines several notable cases concerning Section 2 of the Sherman Act. Third, this paper explores the recent shift in approach, characterized by the New Brandeis movement, to antitrust law and the broader debate surrounding the purpose and scope of antitrust enforcement. Lastly, this paper seeks to situate the Live Nation-Ticketmaster lawsuit in the context of this debate and analyze the implications and potential outcomes of this suit. Ultimately, this paper seeks to show that the DOJ’s original approval of the Live Nation-Ticketmaster merger in 2010 with behavioral remedies was inadequate in preventing anticompetitive practices and protecting consumer interests, and that structural remedies (such as breaking up the company) are necessary to restore effective competition in the live entertainment industry. The Live Nation-Ticketmaster merger in 2010 and its subsequent negative impact on consumers and the live entertainment industry serve as an excellent example to illustrate the insufficient nature of the traditional consumer welfare-focused antitrust enforcement in addressing the complexities of modern markets, particularly in industries like live entertainment where vertical integration can lead to subtle forms of anticompetitive behavior. By examining how Live Nation's market power is reinforced through its data advantages and “flywheel” business model, this paper demonstrates why traditional antitrust frameworks struggle to address such modern competitive dynamics. Ultimately, this paper argues that the Live Nation-Ticketmaster case demonstrates the need for a broader interpretation and more aggressive enforcement approach of antitrust law, aligning with the New Brandeis approach. II. The Live Nation-Ticketmaster Merger: Antitrust Considerations and Regulatory Response In 2010, Live Nation, the world’s largest concert promoter, merged with Ticketmaster, the world’s dominant ticketing platform. At the time of the merger, Ticketmaster held an effective monopoly in the ticket sales market, with an estimated 80% market share for concerts in large venues. In 2008, Live Nation launched its own ticketing platform, positioning itself as a rival to Ticketmaster by offering competitive pricing, leveraging its existing relationships with venues and artists, and promising to reduce service fees. This direct competition in ticketing, combined with Live Nation's dominant position in concert promotion, posed a significant threat to Ticketmaster's monopoly, which the merger would eliminate. Critics argued that the merger would lead to higher ticket prices, reduced competition, and a worse experience for consumers. In his 2009 testimony before the Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, Senior Fellow for the American Progress Action Fund David Balto said, “Eliminating a nascent competitor by acquisition raises the most serious antitrust concerns…By acquiring Ticketmaster, Live Nation will cut off the air supply for any future rival to challenge its monopoly in the ticket distribution market.” Despite this widespread criticism of the proposed merger and its potential consequences, the DOJ approved the merger. However, the DOJ still recognized the potential threats and consumer criticism of the merger. In response to these concerns, the DOJ referred to the limits of antitrust enforcement, noting that the DOJ’s role is to prevent anticompetitive harms from mergers, not to remake industries or address all consumer complaints. In a speech delivered on March 18th, 2010, titled “The Ticketmaster/Live Nation Merger Review and Consent Decree in Perspective,” Assistant Attorney General for the Antitrust Division Christine A Varney said: “Our concern is with competitive market structure, so our job is to prevent the anticompetitive harms that a merger presents. That is a limited role: whatever we might want a particular market to look like, a merger does not provide us an open invitation to remake an industry or a firm’s business model to make it more consumer friendly…In the course of investigating this merger, we heard many complaints about trends in the live music industry, and many complaints from consumers about Ticketmaster. I understand that people view Ticketmaster’s charges, and perhaps all ticketing fees in general, as unfair, too high, inescapable, and confusing. We heard that it is impossible to understand the litany of fees and why those fees have proliferated. I also understand that consolidation has been going on in the industry for some time and the resultant economic pressures facing local management companies and promoters. Those are meaningful concerns, but many of them are not antitrust concerns. If they come from a lack of effective competition, then we hope to treat them as symptoms as we seek to cure the underlying disease. Where such issues concern consumer fairness, however, they are better addressed by other federal agencies.” Varney’s statement delineates a narrow view of the DOJ's role in merger review, focusing primarily on preventing specific antitrust violations rather than addressing broader consumer concerns or industry trends. This approach suggests that the DOJ saw its mandate as limited to addressing anticompetitive harms directly related to the merger, rather than using the merger review process to address wider industry problems or consumer dissatisfaction that fall outside the scope of antitrust law. The merger itself included both horizontal (direct competitors merging) and vertical (different levels of supply chain merging) integration concerns. The DOJ approved the merger with certain conditions: Ticketmaster had to sell Paciolan (its self-ticketing company), Ticketmaster had to license its software to Anschutz Entertainment Group (AEG), and most importantly, LiveNation was prohibited from retaliating against venues that use competing ticketing services. In the merger settlement, the DOJ stated that they would monitor compliance with the agreement for ten years and establish an Order Compliance Committee to receive reports of concerning behavior from industry players. The DOJ also emphasized the importance of industry participation in monitoring and reporting potential violations of the agreement or antitrust laws. These conditions were intended to address the most immediate competitive concerns raised by the merger. Thus, the DOJ primarily relied on behavioral remedies rather than structural changes, an approach that would later be criticized as insufficient to prevent anticompetitive practices. Structural changes, in contrast, could have involved more drastic measures such as requiring the divestiture of certain business units, breaking up the merged entity into separate companies, or imposing limitations on the company's ability to operate in multiple segments of the live entertainment industry. These types of structural remedies aim to fundamentally alter the company's market position and capabilities, rather than merely regulating its behavior. In addition, the reliance on industry self-reporting and time-limited monitoring also raised questions about the long-term effectiveness of these measures. In retrospect, the DOJ’s approach to the Live Nation-Ticketmaster merger exemplifies the limitations of traditional antitrust enforcement in addressing complex, vertically integrated industries. By focusing on narrow, immediate competitive effects and relying heavily on behavioral remedies, the DOJ underestimated the long-term impact of the merger on market dynamics in the live entertainment industry. This case would later become a touchstone in debates about the adequacy of existing antitrust frameworks and the need for more comprehensive approaches to merger review and enforcement. III. The Sherman Act and the Evolution of Antitrust Jurisprudence The Sherman Antitrust Act, passed in 1890, was a landmark piece of legislation that emerged from the economic and political turmoil of the late 19th century’s Gilded Age. This era saw rapid industrialization and the rise of powerful trusts and monopolies that dominated key industries such as oil, steel, and railroads. These business entities, through their immense economic power, were able to stifle competition, manipulate prices, and exert immense influence on the political process. Public outcry against these practices grew, with farmers, small business owners, and laborers demanding government action to curb corporate excess. In response to these concerns, the Sherman Act became the first federal legislation to outlaw monopolistic business practices, particularly by prohibiting trusts. A trust in this context was an arrangement by which stockholders in several companies would transfer their shares to a single set of trustees, receiving in exchange a certificate entitling them to a specified share of the consolidated earnings of the jointly managed companies. This structure allowed for the concentration of economic power that the Act sought to prevent. The Sherman Act outlawed all contracts and conspiracies that unreasonably restrained interstate and foreign trade. Its authors believed that an efficient free market system was only possible with robust competition. While the Act targeted trusts, it also addressed monopolies – markets where a single company controls an entire industry. While the Sherman Act broadly addresses anticompetitive practices, Section 2 is particularly relevant to analyze the Live Nation-Ticketmaster case as it directly pertains to monopolization. Section 2 of the Sherman Act specifically prohibits monopolization, attempted monopolization, and conspiracies to monopolize. Essentially, it outlaws the acquisition or maintenance of monopoly power through unfair practices. However, it’s important to note that the purpose of Section 2 is not to eliminate monopolies entirely, but rather to promote a market-based economy and preserve competition. This nuanced approach taken by Section 2 recognizes that some monopolies may arise from superior business acumen or innovation, and only seeks to prevent those achieved or maintained through anticompetitive means. The Sherman Act laid the foundation for antitrust law in the United States, reflecting a societal commitment to maintaining competitive markets and limiting the concentration of economic power. Its passage marked a significant shift in the government’s role in regulating business practices and shaping the economic landscape. While the Sherman Act laid the groundwork for antitrust law in the United States, it was supplemented by two important pieces of legislation in 1914: the Clayton Antitrust Act and the Federal Trade Commission Act. The Clayton Act expanded on the Sherman Act by prohibiting specific anticompetitive practices such as price discrimination, exclusive dealing contracts, tying arrangements, and mergers that substantially lessen competition. The Federal Trade Commission Act created the Federal Trade Commission (FTC) as an independent regulatory agency to prevent unfair methods of competition and deceptive acts or practices in commerce. Together, these Acts addressed some of the Sherman Act’s limitations and provided more specific guidelines for antitrust enforcement, further solidifying the government’s commitment to maintaining competitive markets. The distinction between the Clayton Act and Sherman Act is particularly relevant to understanding the Live Nation-Ticketmaster case. Section 7 of the Clayton Act governs merger review, requiring pre-emptive intervention to prevent mergers that may substantially lessen competition. In contrast, Section 2 of the Sherman Act addresses anticompetitive conduct by existing monopolists. The 2010 Live Nation-Ticketmaster merger was reviewed under Clayton Act Section 7’s forward-looking standard, while the 2024 case challenges ongoing anticompetitive conduct under Sherman Act Section 2. This dual application of antitrust law to the same company highlights the complementary yet distinct roles of merger review and monopolization enforcement. The early enforcement and interpretation of the Sherman Act were shaped by landmark cases that helped define the scope and application of antitrust law. In Standard Oil Co. of New Jersey v. United States (1911), the Supreme Court established the “rule of reason” approach to analyzing antitrust violations. This case resulted in the breakup of Standard Oil, demonstrating the Act’s power to dismantle monopolies. The Court held that only “unreasonable” restraints of trade were prohibited, introducing a more limited interpretation of the Act. The “rule of reason” approach meant that the Court would consider the specific facts and circumstances of each case to determine whether a particular restraint of trade was unreasonable. The case also established that the Sherman Act should be interpreted in light of its broad policy goals rather than strictly construed. This approach had a significant impact on future antitrust enforcement. It allowed for a more flexible and adaptive application of the Act, enabling courts and regulators to address new forms of anticompetitive behavior as markets evolved. This interpretive framework empowered enforcers to look beyond the literal text of the Act and consider the overarching aims of promoting competition and protecting consumer welfare. As a result, antitrust enforcement could more effectively respond to changing economic conditions and business practices, particularly as industries became more complex and interconnected in the 20th century. Later, in United States v. Alcoa (1945), the Court of Appeals for the Second Circuit further refined the interpretation of the Sherman Act. Judge Learned Hand’s opinion clarified that merely possessing monopoly power is not illegal; rather, the Act prohibits the deliberate acquisition or maintenance of that power through exclusionary practices. Alcoa thus established an important distinction between achieving monopoly through superior skill, foresight, and industry, which is lawful, and maintaining it through anticompetitive conduct, which violates the Act. These cases illustrate the evolving understanding of the Sherman Act, moving from a strict interpretation to a more nuanced approach that considered market dynamics and the effects of business practices on competition. The mid-20th century saw a significant shift in antitrust enforcement characterized by a structural approach that focused on market concentration and firm size. This era, roughly spanning from the late 1930s to the early 1960s, was characterized by a prevailing view among federal antitrust authorities, economists, and policymakers that high market concentration was inherently harmful to competition. The passage of the Celler-Kefauver Act in 1950, which strengthened merger control, exemplified this approach. Influenced by economists from the Harvard School of industrial organization, particularly Joe Bain, antitrust authorities presumed that market structure determined conduct and performance. This “structure-conduct-performance” paradigm, central to the Harvard School's approach, posited that industry structure (like concentration levels) directly influenced firm behavior and market outcomes. This led to aggressive enforcement actions, including the breakup of large firms and the blocking of mergers that would have significantly increased market concentration. However, by the mid-1960s, antitrust thinking began to evolve, considering both market structure and firm conduct. This shift was reflected in the landmark 1966 Supreme Court case United States v. Grinnell Corp. , which established the modern two-part test for monopolization. The Grinnell test requires proof of both “the possession of monopoly power in the relevant market” and “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” This test, while still considering market power, introduced a focus on how that power was obtained or maintained. While the earlier era did consider power acquisition to some extent, the Grinnell test formalized and emphasized this aspect. It required a more comprehensive examination of a firm’s conduct and its effects on competition, moving beyond the primarily structural approach that often presumed anticompetitive effects from high market concentration alone. The Grinnell test has since been widely applied in monopolization cases under Section 2 of the Sherman Act, reflecting a more nuanced approach that aims to preserve competition without necessarily eliminating all monopolies. This evolution in antitrust enforcement demonstrates a move towards balancing concerns about market structure with considerations of firm conduct and efficiency. However, this balanced approach would soon give way to a more dramatic shift in antitrust philosophy that prioritized economic efficiency above other considerations. During the 1970s and 1980s, the Chicago School of Economics profoundly influenced the trajectory and scope of antitrust law and policy in the United States. This approach, led by economists and legal scholars such as Robert Bork, Richard Posner, and George Stigler, represented a significant shift in antitrust thinking. The Chicago School advocated for the “consumer welfare” standard as the primary goal of antitrust policy. This approach focused on economic efficiency and lower prices for consumers, rather than protecting competitors or maintaining a particular market structure. They argued that many practices previously considered anticompetitive could actually benefit consumers through increased efficiency. For example, Chicago School theorists argued that many mergers, even those that increased market concentration, could lead to efficiencies that benefit consumers. These efficiencies could manifest in several ways: through economies of scale that reduce production costs and potentially lower prices; through improved resource allocation that enhances product quality or variety; or through increased innovation. The Chicago School contended that these efficiency gains could outweigh potential negative effects of increased market concentration, ultimately resulting in net benefits for consumers in the form of lower prices, better products, or increased innovation. This led to a more lenient approach to DOJ merger review, with a higher bar for proving that a merger would harm competition. Vertical mergers (between companies at different levels of the supply chain) were viewed particularly favorably, as they were seen as potentially efficiency-enhancing. The Chicago School was skeptical of claims that vertical integration or vertical restraints (like exclusive dealing arrangements) were inherently anticompetitive. They argued that these practices often had pro-competitive justifications and should be judged based on their economic effects rather than per se rules. The Chicago School was driven by a strong belief in the self-correcting nature of markets. This thinking greatly influenced antitrust enforcement agencies and courts during the Reagan administration and beyond. It led to a significant reduction in antitrust enforcement actions and a higher bar for proving anticompetitive harm. This shift represented a move away from the structural approach of the mid-20th century towards a more economics-focused, effects-based analysis of competitive harm. Antitrust attorney William Markham offers a scathing critique of the consumer welfare standard’s impact on antitrust enforcement. He argues that since the late 1970s, courts have adopted increasingly restrictive antitrust doctrines based on this standard, which he views as misnamed and harmful to consumers. Markham contends that these doctrines have allowed various forms of monopolistic and anticompetitive practices to flourish unchecked. He states that the standard permits such practices “so long as the offenders take care not to charge prices that are demonstrably and provably supracompetitive.” This critique highlights how the narrow focus on consumer prices under the consumer welfare standard may overlook other forms of competitive harm. It’s important to understand this context when examining more recent developments and debates in antitrust law, including the challenges posed by digital markets and the arguments of the New Brandeis movement. IV. Judicial Interpretation of Section 2: Key Cases and Anticompetitive Practices To better understand how Section 2 of the Sherman Act has been applied in practice, it’s important to examine key antitrust cases that have shaped its interpretation and enforcement. These cases not only illustrate various types of anti-competitive practices but also demonstrate the evolution of antitrust thinking, particularly the rising influence of the Chicago School’s consumer welfare standard and subsequent challenges to this approach. Anticompetitive practices can take many forms, including refusals to deal, predatory pricing, tying, and exclusive dealing arrangements. Their legality often depends on specific facts, market conditions, and the prevailing economic theories of the time. This section examines several landmark cases that highlight these practices and trace the trajectory of antitrust law from the mid-1980s through the early 2000s, a period marked by significant shifts in antitrust philosophy and enforcement approaches. The 1985 Supreme Court case Aspen Skiing Co. v. Aspen Highlands Skiing Corp. marked a significant development in antitrust law’s approach to refusal to deal practices, a type of anticompetitive behavior where a firm with market power declines to do business with a competitor. The case involved Aspen Skiing Company, which owned three of four ski areas in Aspen, CO, discontinuing a long-standing joint lift ticket program with Aspen Highlands, the owner of the fourth area. While the Chicago School approachgenerally viewed refusals to deal as permissible, the Court in this case took a different stance. It ruled that this refusal to continue a voluntary cooperative venture could violate Section 2 of the Sherman Act, as it lacked any normal business justification and appeared designed to eliminate competition. This decision, occurring early in the ascendancy of the Chicago School, demonstrated a willingness to consider factors beyond short-term consumer welfare in antitrust analysis. Justice Stevens’ opinion emphasized the importance of intent in determining whether conduct is “exclusionary,” “anticompetitive,” or “predatory,” introducing a more contextualized approach to assessing market behavior. While not fully embracing the consumer welfare standard, the Court did consider the impact on consumers, noting that the joint ticket was popular and its elimination inconvenienced skiers. This case thus represents a crucial step in the evolution of antitrust law, bridging the gap between earlier, more aggressive interpretations of the Sherman Act and the more economics-focused analyses that would follow. It expanded the scope of antitrust enforcement by establishing that, in some cases, even a unilateral refusal to deal could be considered anticompetitive. Aspen Skiing set the stage for later cases dealing with complex market dynamics, particularly in industries where control over key resources or platforms can significantly impact competition – a concept that becomes increasingly relevant in the digital age and in cases like the Live Nation-Ticketmaster merger. As antitrust thinking continued to evolve, the influence of the Chicago School became more pronounced, as evidenced in subsequent landmark cases. This shift was reinforced by changes in the Supreme Court’s composition during the 1970s and 1980s, with appointments by Presidents Nixon and Reagan bringing more conservative justices to the bench who were often sympathetic to Chicago School economic theories. This changing court composition, coupled with the growing academic influence of the Chicago School, contributed to the changes in antitrust jurisprudence. The 1993 Supreme Court case Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. marked a significant move in the treatment of predatory pricing claims, reflecting the growing dominance of the Chicago School’s consumer welfare standard. Predatory pricing occurs when a firm prices its products below cost with the intention of driving competitors out of the market, allowing the predator to later raise prices and recoup its losses. In this case, the Brooke Group accused Brown & Williamson of predatory pricing in the generic cigarette market. The Court established a two-pronged test for predatory pricing: (1) the plaintiff must prove that the prices are below an appropriate measure of cost, and (2) the plaintiff must demonstrate that the predator had a “reasonable prospect” of recouping its losses. This stringent standard, making predatory pricing claims extremely difficult to prove, clearly reflects the Chicago School’s skepticism towards such claims against firms. The Court’s reasoning prioritized short-term consumer benefits (lower prices) over long-term competitive concerns, embodying the consumer welfare standard. Justice Kennedy’s majority opinion explicitly cited Chicago School scholars, demonstrating how economic theory had come to dominate antitrust jurisprudence. This case illustrates how the Chicago School approach narrowed the scope of antitrust enforcement, potentially allowing some anticompetitive practices to escape scrutiny if they resulted in short-term consumer benefits. In the context of cases like Live Nation-Ticketmaster, this ruling underscores the challenges in proving anticompetitive behavior when short-term consumer benefits are present. The rise of the digital economy in the late 1990s and early 2000s presented new challenges to antitrust enforcement, leading to a reconsideration of established doctrines. While the Chicago School’s influence remained strong, the emergence of new technologies and business models began to test the limits of its consumer welfare-focused approach. The United States v. Microsoft Corp. (2001) case marked a pivotal moment in antitrust law’s application to the emerging digital economy, introducing new considerations for tying and monopoly maintenance in software markets. Tying occurs when a company requires customers who purchase one product to also purchase a separate product, potentially leveraging dominance in one market to gain advantage in another. The U.S. government accused Microsoft of illegally maintaining its monopoly in the PC operating systems market by tying its Internet Explorer browser to the Windows operating system and engaging in exclusionary contracts with PC manufacturers and Internet service providers. This case challenged the Chicago School's typically permissive view of tying arrangements, which often saw them as enhancing efficiency from a consumer welfare standpoint. The Court of Appeals for the D.C. Circuit ruled that Microsoft had violated Section 2 of the Sherman Act, finding that Microsoft’s practices, in aggregate, served to maintain its monopoly power by stifling competition from potential disruptors like Netscape’s browser and Sun’s Java technologies. While the court’s analysis still employed the consumer welfare standard, it showed a willingness to consider a broader range of anticompetitive effects, including harm to innovation and potential future competition. This approach reflected a nuanced evolution of antitrust thinking, acknowledging the unique characteristics of software markets and the rapid pace of technological change. Microsoft set important precedents for how antitrust law could be applied to fast-moving technology markets and platform economies, influencing later cases involving tech giants and potentially informing the analysis of platform-based businesses like Live Nation-Ticketmaster. It demonstrated that even in the era of Chicago School dominance, courts could adapt antitrust principles to address new forms of market power in the digital age. The resulting settlement, which imposed behavioral remedies rather than structural ones, sparked ongoing debates about the adequacy of traditional antitrust tools in addressing the unique characteristics of digital markets. Despite the more comprehensive and context-specific approach in Microsoft , the influence of the Chicago School remained strong, as demonstrated in the next significant case. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP (2004) significantly narrowed the scope of antitrust liability for refusal to deal, revisiting and limiting the principles established in Aspen Skiing . In this case, Trinko, a law firm and Verizon customer, alleged that Verizon had violated Section 2 of the Sherman Act by providing insufficient assistance to new competitors in the local telephone service market, as required by the 1996 Telecommunications Act. The Court, in a unanimous decision authored by Justice Antonin Scalia, ruled in favor of Verizon, significantly limiting the circumstances under which a refusal to deal could violate antitrust law. Unlike in Aspen Skiing , where there was a history of voluntary cooperation, the Court emphasized that firms, even monopolists, generally have no duty to assist competitors. This ruling clearly reflects the Chicago School’s skepticism towards government intervention in markets and its focus on efficiency over other competitive concerns. The Court emphasized the importance of allowing firms to freely choose their business partners, arguing that forced cooperation could reduce companies’ incentives to invest and innovate. This aligns with the Chicago School’s concern about “false positives” in antitrust enforcement – the idea that overly aggressive antitrust action might mistakenly punish pro-competitive behavior, potentially discouraging beneficial business practices. By setting a high bar for refusal to deal claims, the Trinko decision further constrained the reach of antitrust law, potentially allowing monopolists more leeway in their dealings with competitors. By setting a high bar for refusal to deal claims, the Trinko decision further constrained the reach of antitrust law, potentially allowing monopolists more leeway in their dealings with competitors. This legal environment, which emphasized a narrow interpretation of anticompetitive behavior, set the stage for future mergers that consolidated market power across related industries. The 2010 approval of the Live Nation-Ticketmaster merger is a prime example of how this permissive approach to antitrust enforcement allowed for the creation of a vertically integrated entity with unprecedented control over the live entertainment industry. This case exemplifies how the Chicago School approach may have inadvertently created blind spots in antitrust enforcement, particularly regarding the long-term effects of monopoly power on innovation and competition. These cases collectively demonstrate the complex evolution of Section 2 application across various industries and business practices. From the nuanced approach in Aspen Skiing , through the height of Chicago School influence in Brooke Group and Trinko , to the adaptation to new technological challenges in Microsoft , they illustrate how antitrust law has grappled with changing economic theories and market realities. The cases show a clear trajectory of increasing influence of the Chicago School’s consumer welfare standard, but also reveal moments of resistance or adaptation to this approach when confronted with novel market dynamics. The Microsoft case, in particular, marks a significant point in this evolution, demonstrating how courts began to recognize the unique challenges posed by the digital economy. By examining these cases, it is possible to trace how the interpretation and application of Section 2 of the Sherman Act has shifted over time, reflecting changing economic theories and market realities. This evolution provides crucial context for understanding current debates about antitrust enforcement, particularly in rapidly evolving digital markets, and sets the stage for the emergence of new approaches like the New Brandeis movement. In considering the Live Nation-Ticketmaster case, this historical context helps to understand the complex landscape of antitrust enforcement and the challenges in addressing anticompetitive behavior today. V. The New Brandeis Movement: Redefining Antitrust for the Modern Era The landscape of antitrust enforcement is undergoing a fundamental shift as new perspectives challenge long-held assumptions about competition law. The limitations of the Chicago School approach, particularly evident in cases like Microsoft and Trinko , have sparked a reimagining of antitrust’s fundamental purposes and tools. As University of Michigan Law Professor Daniel Crane noted recently, “the bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices [from the political left and right] calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values.” At the heart of this antitrust approach evolution lies a debate between the traditional consumer welfare-focused approach and the emerging New Brandeis movement. For decades, the standard approach has emphasized consumer welfare as the primary goal, focusing on economic efficiency and preventing practices that directly harm consumers through higher prices, reduced output, or decreased innovation. This framework has generally led to a more permissive attitude toward mergers and a higher bar for finding antitrust violations. In contrast, the New Brandeis movement, championed by figures like FTC Chairwoman Lina Khan, advocates for a broader understanding of antitrust law’s goals. This perspective, sometimes critically dubbed “hipster antitrust,” contends that enforcement should consider additional factors such as market structure, the distribution of economic power, and the impact on workers, small businesses, and political democracy. The movement’s proponents have been particularly vocal about the need to reassess antitrust approaches in the context of the digital economy, expressing concern over the power wielded by large tech platforms. Lina Khan, a prominent figure in contemporary antitrust discourse, has developed an extensive body of work articulating the principles of the New Brandeis movement. In her article “The New Brandeis Movement: America’s Antimonopoly Debate,” Khan outlines this approach, which draws inspiration from Justice Louis Brandeis’s support of “America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy.” The movement represents a significant departure from the Chicago School of antitrust thinking. While the Chicago School emphasized efficiency, prices, and consumer welfare, the New Brandeis approach advocates for a return to a market structure-oriented competition policy. Key tenets include viewing economic power as intrinsically tied to political power, recognizing that some industries naturally tend towards monopoly and require regulation, emphasizing the structures and processes of competition rather than just outcomes, and rejecting the notion of natural market “forces” naturally leading to optimal economic outcomes or consumer welfare, instead understanding markets as fundamentally shaped and structured by law and policy. In her article “The Ideological Roots of America’s Market Power Problem,” Khan further critiques the current antitrust framework, arguing that it has weakened enforcement and allowed high concentration of market power across sectors. She asserts that addressing this issue requires challenging the ideological underpinnings of the current framework, writing, “Identifying paths for greater enforcement within a framework that systematically disfavors enforcement will fall short of addressing the scope of the market power problem we face today.” Ultimately, Khan and other New Brandeis proponents argue for a fundamental rethinking of antitrust’s goals and methods, advocating a return to its original purpose of distributing economic power and preserving democratic values. Building upon her critique of current antitrust frameworks, Khan has written extensively about the unique challenges posed by big tech companies, arguing that traditional enforcement methods are inadequate to address their market power. In her influential article “Amazon’s Antitrust Paradox,” Khan contends that the current antitrust framework is ill-equipped to tackle the anticompetitive effects of digital platforms like Amazon. These platforms, she argues, can leverage their market power and access to data to engage in predatory pricing, disadvantage rivals, and entrench their dominance. Khan writes in the abstract, “This Note argues that the current framework in antitrust—specifically its pegging competition to ‘consumer welfare,’ defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output.” The article explains that despite Amazon’s massive growth, it generates low profits, often pricing products below cost and focusing on expansion rather than short-term gains. This strategy has allowed Amazon to expand far beyond retail, becoming a major player in various sectors including marketing, publishing, entertainment, hardware manufacturing, and cloud computing. Khan argues that this positions Amazon as a critical platform for many other businesses. She further elaborates, “First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.” Khan argues that in platform markets like Amazon's, predatory pricing can be rational even if product prices appear to be at market rates. This is because the goal is not immediate profit, but rather to rapidly expand market share and establish dominance. The company can sustain short-term losses or razor-thin margins on product sales because the real value lies in becoming the dominant platform, which can lead to long-term profitability through various means such as data collection. Traditional antitrust doctrine, however, often assumes that below-cost pricing is irrational unless the company can quickly recoup its losses through higher prices, which may not apply in these complex, multi-sided markets. This creates a “paradox” where Amazon’s practices may be anticompetitive, yet they escape scrutiny under existing regulations. To address Amazon’s market power, one of Khan’s major suggestions includes restoring traditional antitrust and competition policy principles to its more structure-oriented approach. Khan’s influential academic critiques of current antitrust frameworks, particularly her analysis of Amazon’s market power, laid the groundwork for her approach as FTC chair, where she has sought to translate these ideas into concrete enforcement actions. Since Lina Khan’s appointment as chair of the FTC in 2021 by President Joe Biden, the agency has embarked on a more aggressive approach to antitrust enforcement, challenging some of America’s largest corporations and implementing significant policy shifts. This new direction has yielded mixed results and sparked debates about the future of competition policy in the United States. Khan’s FTC has increased scrutiny of Big Tech, filing an amended antitrust complaint against Facebook (Meta) that challenges its acquisitions of Instagram and WhatsApp, and suing to block Microsoft’s acquisition of Activision Blizzard, citing competition concerns in the video game industry. The agency has also initiated actions against other tech giants like Amazon. Under Khan’s leadership, the FTC has implemented stricter merger enforcement, including a more aggressive approach to reviewing mergers, particularly vertical mergers. The agency withdrew the 2020 Vertical Merger Guidelines, signaling skepticism towards vertical integration, and revised merger guidelines in collaboration with the Department of Justice. There’s also been an increased focus on “killer acquisitions” where large companies buy potential competitors. Khan has emphasized structural remedies over behavioral ones, advocating for more dramatic interventions like breaking up companies in certain cases. Additionally, recognizing the growing importance of data as a competitive asset, the FTC has integrated privacy and data protection concerns into its antitrust approach. For instance, the agency pursued a case against data broker Kochava for selling sensitive geolocation data, highlighting how control over user data can contribute to market power and potentially anticompetitive practices in the digital economy. The implementation of Khan’s approach has seen both successes and setbacks. Partial victories include the FTC v. Facebook (Meta) case, where the court allowed a revised complaint to proceed, and the FTC v. Illumina/Grail case, where the agency successfully challenged a vertical merger, albeit on largely traditional antitrust grounds. However, the FTC faced a setback when its attempt to block Meta’s acquisition of Within Unlimited was rejected. Ongoing challenges persist as courts have shown varying degrees of receptiveness to the expanded view of antitrust harm. As of April 2024, there had been no definitive high-level court ruling fully endorsing or rejecting the New Brandeis approach, with many decisions still relying heavily on the consumer welfare standard. Khan also faces political opposition and challenges to her rule-making initiatives. While Khan has successfully shifted the FTC’s focus towards more aggressive antitrust enforcement and brought increased attention to issues like data privacy and labor market effects, the legal and practical adoption of the New Brandeis philosophy remains a work in progress. The evolving legal landscape sets the stage for analyzing how future cases, such as potential actions against Ticketmaster, might proceed under this new, more expansive view of antitrust enforcement. VI. The Live Nation-Ticketmaster Case: A Critical Analysis of Market Power and Competitive Effects In May 2024, the DOJ, in addition to 30 state and district attorneys general, filed a civil antitrust lawsuit against Live Nation Entertainment Inc. and its wholly owned subsidiary Ticketmaster “for monopolization and other unlawful conduct that thwarts competition in markets across the live entertainment industry.” More specifically, the DOJ accused Live Nation for violating Section 2 of the Sherman Act. In a subsequent press release, the DOJ highlighted several key issues resulting from Live Nation-Ticketmaster’s conduct. The DOJ argued that the company’s practices have led to a lack of innovation in ticketing, higher prices for U.S. consumers compared to other countries, and the use of outdated technology. Further, the DOJ asserted that Live Nation-Ticketmaster “exercises its power over performers, venues, and independent promoters in ways that harm competition” and “imposes barriers to competition that limit the entry and expansion of its rivals.” The lawsuit, which calls for structural relief – primarily the breakup of Live Nation and Ticketmaster – aims to reintroduce competition in the live concert industry, offer fans better options at more affordable prices, and create more opportunities for musicians and other performers at venues. The DOJ claims Live Nation-Ticketmaster uses a “flywheel” business model that self-reinforces its market dominance. This model involves using revenue from fans and sponsorships to secure exclusive deals with artists and venues, creating a cycle that excludes competitors. The complaint outlines several anti-competitive practices, including: partnering with potential rival Oak View Group to avoid competition, threatening retaliation against venues working with competitors, using long-term exclusive contracts with venues, restricting artists’ venue access unless they use Live Nation’s promotion services, and acquiring smaller competitors. The DOJ argues these practices create barriers for rivals to compete fairly. Live Nation Entertainment is the world’s largest live entertainment company, controlling numerous venues and generating over $22 billion in annual revenue globally. The DOJ’s action aims to address these alleged monopolistic practices in the live entertainment industry. Attorney General Merrick B. Garland said, “We contend that Live Nation uses illegal and anti-competitive methods to dominate the live events industry in the U.S., negatively impacting fans, artists, smaller promoters, and venue operators. This dominance leads to higher fees for fans, fewer concert opportunities for artists, reduced chances for smaller promoters, and limited ticketing options for venues. It’s time to break up Live Nation-Ticketmaster.” Beyond traditional market control, Live Nation’s monopolistic position is further entrenched by its significant data advantages, which raise additional competitive and privacy concerns. Through its ticketing operations and venue management, Live Nation amasses vast amounts of consumer data, including purchasing habits, musical preferences, and demographic information. This data not only enhances Live Nation’s ability to target marketing and adjust pricing strategies but also creates a major barrier to entry for potential competitors who lack access to such comprehensive consumer insights. Moreover, the company’s control over this data raises privacy concerns, as consumers may have limited understanding of how their information is being used or shared across Live Nation’s various business segments. These issues mirror broader debates in the digital age about the role of data in maintaining market power, with parallels to concerns raised about tech giants like Google and Facebook. As such, any antitrust action against Live Nation must consider not only traditional measures of market power but also the competitive advantages and potential privacy implications of its data practices. This aspect of the case underscores the need for antitrust enforcement to evolve in response to the increasing importance of data in modern business models. Notably, the DOJ focuses on Live Nation-Ticketmaster’s anticompetitive tactic of threatening and retaliating against venues that work with rivals. In the press release, the DOJ writes, “Live Nation-Ticketmaster’s power in concert promotions means that every live concert venue knows choosing another promoter or ticketer comes with a risk of drawing an adverse reaction from Live Nation-Ticketmaster that would result in losing concerts, revenue, and fans.” This directly violates the terms of the 2010 merger agreement, in which LiveNation was prohibited from retaliating against venues that use competing ticketing services. Considering that the current lawsuit’s main goal is the breakup of Ticketmaster and Live Nation, there exists an undeniable irony that the DOJ is seeking to undo their own actions (approving the merger in 2010). The head of Jones Day’s antitrust practice Craig Waldman said, “The DOJ is breaking out a really big gun here — seeking to blow up a company that was created with its approval. That looms large even though the DOJ has and will continue to try to frame Live Nation’s conduct as going well beyond the scope of the merger.” In hindsight, it is clear that the DOJ’s approval of the 2010 merger was an egregious mistake. Vice president and director of competition policy at the Progressive Policy Institute Diana Moss said, “The Live Nation-Ticketmaster merger was allowed to proceed in 2010, but the decision was an abject failure of antitrust enforcement. Instead of blocking the merger, the DOJ required the company, then with an 80% share of the ticketing market, to comply with ineffective conditions.” The continued anticompetitive practices and market dominance of Live Nation-Ticketmaster after the approved merger demonstrate that behavioral remedies were insufficient to protect competition. As such, structural remedies, specifically breaking up the company, are necessary to restore competition in the live entertainment industry. That extensive pushback and criticism of the merger took place at the time of its approval highlights the limited scope and approach of antitrust enforcement, particularly when it comes to mergers. The Live Nation-Ticketmaster case will proceed in New York’s Southern District, known for its slow litigation process, potentially delaying a trial until late 2026. In its defense, Live Nation argues that it does not hold a monopoly, claiming that its profit margins are low and that ticket prices are influenced more by factors like artist popularity and secondary ticketing markets than by its own practices. Live Nation contends that the efficiencies achieved by merging with Ticketmaster benefit the industry by offering better services and prices compared to separating the companies. The company emphasizes that its vertical integration—combining promotion and ticketing services—creates a more efficient and artist-friendly business model. Live Nation also asserts that the secondary ticketing market, rather than its own practices, is primarily responsible for high ticket prices. The case will scrutinize whether the efficiencies claimed by Live Nation justify its market control or if the harm to competition outweighs these benefits. The DOJ’s push for a breakup, and refusal to settle for anything less than a breakup, reflects the relative success of the New Brandeis movement, particularly when considering the FTC’s revised merger guidelines in collaboration with the DOJ. When analyzed through the lens of the Grinnell test, Live Nation’s conduct clearly meets both prongs for monopolization under Section 2 of the Sherman Act. First, Live Nation undoubtedly possesses monopoly power in the relevant markets of concert promotion and ticketing. With an estimated 80% market share in ticketing for major concert venues and its dominant position in concert promotion, Live Nation far exceeds the typical thresholds courts have used to identify monopoly power. The company’s ability to impose high fees, dictate terms to artists and venues, and persistently maintain its market position despite widespread consumer dissatisfaction further evidences its monopoly power. Second, Live Nation has willfully acquired and maintained this power through exclusionary practices, not merely through superior products or business acumen. The DOJ’s complaint outlines numerous anti competitive tactics, including threatening retaliation against venues that use competing services, leveraging its control over artists to pressure venues, and using long-term exclusive contracts to lock out competitors. These practices go well beyond legitimate competition based on merit. Moreover, Live Nation strategic acquisitions of potential competitors and its alleged collusion with Oak View Group to avoid competition further demonstrate its willful maintenance of monopoly power. The company’s “flywheel” business model, while potentially efficient, serves to entrench its dominance across multiple markets in ways that foreclose competition. Thus, Live Nation’s conduct satisfies both prongs of the Grinnell test, strongly supporting the DOJ’s case for illegal monopolization. It’s important to note, however, that while the Grinnell test remains a fundamental framework cited in monopolization cases, its application in modern antitrust law has evolved and become more nuanced. In recent decades, courts have increasingly used the Grinnell test as a starting point rather than a definitive standard. The test is now supplemented with more sophisticated economic analyses. Therefore, while the Grinnell test will likely be referenced in the Live Nation case, the court's analysis is expected to be more comprehensive, potentially incorporating more recent precedents and economic theories to fully capture the nuances of Live Nation’s market position and conduct. The Live Nation-Ticketmaster case illuminates several fundamental limitations in current antitrust doctrine. First, the case demonstrates how the Chicago School’s permissive approach to vertical mergers, embedded in Clayton Act enforcement, systematically underestimates the long-term competitive threats posed by vertical integration in platform markets. Second, the case exposes the inherent weakness of behavioral remedies in addressing vertical merger concerns. The failure of the 2010 settlement’s behavioral conditions—despite their specificity and ongoing oversight—suggests that such remedies are fundamentally inadequate for controlling the conduct of vertically integrated firms with substantial market power. Third, and perhaps most significantly, the case reveals the challenging burden facing regulators under Section 2 of the Sherman Act once a vertically integrated entity has established market dominance. Even with clear evidence of exclusionary conduct, proving harm under current Section 2 doctrine requires navigating complex questions about market definition and competitive effects that may not fully capture the subtle ways in which vertical integration can entrench market power. The Consumer Welfare Standard, which has dominated antitrust analysis since the 1980s, is inadequate in fully capturing the anticompetitive harm caused by Live Nation’s practices. While this standard primarily focuses on consumer prices and output, it fails to account for the multifaceted nature of competition in the live entertainment industry. Certainly, the high ticket prices and fees imposed by Live Nation are relevant concerns under this framework. However, this narrow focus obscures the broader and more insidious effects of Live Nation’s market dominance. For instance, the standard doesn’t adequately address the reduced choices faced by venues, who often feel compelled to contract with Live Nation for fear of losing access to popular acts. Similarly, it fails to capture the constraints placed on artists, who may find their touring options limited by Live Nation’s control over major venues and promotion services. The standard also struggles to account for the barriers to entry the industry created by Live Nation’s vertically integrated structure and exclusive contracts, which stifle potential competitors and innovative business models in the ticketing and promotion markets. Moreover, the Consumer Welfare Standard’s short-term focus on prices neglects long-term impacts on innovation, diversity, and the overall health of the live entertainment ecosystem. It fails to account for how one company’s dominance can lead to less diverse music options and harm smaller venues and independent promoters who are crucial for supporting new artists. By focusing mainly on short-term price effects, the standard overlooks the broader, long-term damage to competition in the industry. This limitation of the Consumer Welfare Standard in the Live Nation case underscores the need for a more comprehensive approach to antitrust analysis, one that aligns more closely with the broader concerns of the New Brandeis movement. Building on the limitations of the Consumer Welfare Standard and the evolving application of the Grinnell test, it becomes clear that a more comprehensive approach to antitrust enforcement is necessary in the Live Nation case. The failure of the 2010 behavioral remedies further underscores this need. Despite prohibitions on retaliatory practices and requirements to license ticketing software to competitors, Live Nation has continued to dominate the market and engage in exclusionary conduct. This persistence of anticompetitive behavior, even under regulatory oversight, demonstrates that more robust, structural solutions are required. In retrospect, it is evident that the DOJ should have never approved the merger in the first place, as the vertical integration of Live Nation and Ticketmaster created a entity with unprecedented market power and clear incentives for anticompetitive behavior. In light of these considerations, the DOJ should argue for a full structural separation of Live Nation and Ticketmaster as the primary remedy. This breakup would reintroduce genuine competition into both the concert promotion and ticketing markets, addressing the root causes of Live Nation’s market power more effectively than behavioral conditions. To ensure a competitive landscape post-separation, the court should also consider supplementary measures. These could include prohibiting exclusive deals with venues and imposing limits on the percentage of a market’s concert promotion that Live Nation can control. By advocating for these comprehensive structural changes, the DOJ can align its approach with the more aggressive, market structure-focused enforcement advocated by the New Brandeis movement. This approach not only addresses the immediate concerns in the live entertainment industry but also sets a potential precedent for future antitrust cases in similarly complex, vertically integrated industries. It recognizes that in today’s interconnected markets, protecting competition requires looking beyond short-term price effects to consider the broader ecosystem of industry participants, from artists and venues to emerging competitors and consumers. VII. Conclusion The Live Nation-Ticketmaster case serves as a stark illustration of the inadequacies of traditional antitrust enforcement in addressing the complexities of modern markets. The DOJ’s original approval of the 2010 merger, despite widespread criticism and concerns, highlights the limitations of the consumer welfare-focused approach and the ineffectiveness of behavioral remedies in curbing anti competitive practices. The subsequent dominance of Live Nation in the live entertainment industry, characterized by its “flywheel” business model and alleged exclusionary practices, demonstrates the need for a more comprehensive and aggressive approach to antitrust enforcement. This case represents a critical juncture in the evolution of antitrust law, potentially marking a shift towards the more expansive view advocated by the New Brandeis movement. The DOJ’s pursuit of structural remedies, specifically the breakup of Live Nation and Ticketmaster, signals a recognition that protecting competition in today’s interconnected markets requires looking beyond short-term price effects to consider the broader ecosystem of industry participants. As such, the outcome of this case will have far-reaching implications for future antitrust enforcement, particularly in industries characterized by vertical integration and data-driven market power. It may set a precedent for how antitrust authorities approach complex, multi-faceted monopolies in the digital age, potentially reshaping the landscape of competition law for years to come. Ultimately, the Live Nation case underscores the urgent need for antitrust law to evolve in response to the changing nature of market power, ensuring that it remains an effective tool for promoting competition, innovation, and consumer welfare in the 21st-century economy. References Abad-Santos, Alex. “How Disappointed Taylor Swift Fans Explain Ticketmaster’s Monopoly.” Vox. Last modified November 21, 2022. https://www.vox.com/culture/2022/11/21/23471763/taylor-swift-ticketmaster-monopoly. Abbott, Alden. “Will the Antitrust Lawsuit against Live Nation Break Its Hold on Ticketmaster?” Forbes. Last modified May 28, 2024. https://www.forbes.com/sites/aldenabbott/2024/05/28/will-the-justice-departments-monopolization-lawsuit-kill-live-nation/. Abovyan, Kristina, and Quinn Scanlan. “FTC Is ‘just Getting Started’ as It Takes on Amazon, Meta and More, Chair Lina Khan Says.” ABC News , May 5, 2024. https://abcnews.go.com/Politics/ftc-started-takes-amazon-meta-chair-lina-khan/story?id=109928219. “Antitrust Law Basics – Section 2 of the Sherman Act.” Thomas Reuters. Last modified May 17, 2023. https://legal.thomsonreuters.com/blog/antitrust-law-basics-section-2-of-the-sherman-act/. “The Antitrust Laws.” U.S. Department of Justice. Accessed December 20, 2023. https://www.justice.gov/atr/antitrust-laws-and-you#:~:text=The%20Sherman%20Antitrust%20Act,or%20markets%2C%20are%20criminal%20violations. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 JUSTIA (10th Cir. June 19, 1985). https://supreme.justia.com/cases/federal/us/472/585/. “A Brief Overview of the ‘New Brandeis’ School of Antitrust Law.” Patterson Belknap. Last modified November 8, 2018. https://www.pbwt.com/antitrust-update-blog/a-brief-overview-of-the-new-brandeis-school-of-antitrust-law. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 JUSTIA (4th Cir. Mar. 29, 1993). https://supreme.justia.com/cases/federal/us/509/209/. “Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act : Chapter 1.” U.S. Department of Justice. https://www.justice.gov/archives/atr/competition-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-1#:~:text=Section%202%20of%20the%20Sherman%20Act%20makes%20it%20unlawful%20for,foreign%20nations%20.%20.%20.%20.%22. “Court Rejects FTC’s Bid to Block Meta’s Proposed Acquisition of VR Fitness App Developer.” Crowell. https://www.crowell.com/en/insights/client-alerts/court-rejects-ftcs-bid-to-block-metas-proposed-acquisition-of-vr-fitness-app-developer. “Federal Trade Commission and Justice Department Release 2023 Merger Guidelines.” Federal Trade Commission. Accessed December 18, 2023. https://www.ftc.gov/news-events/news/press-releases/2023/12/federal-trade-commission-justice-department-release-2023-merger-guidelines. Hovenkamp, Herbert. “Framing the Chicago School of Antitrust Analysis.” University of Pennsylvania Carey Law School 168, no. 7 (2020). https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3115&context=faculty_scholarship. Hovenkamp, Herbert J. “The Rule of Reason.” Penn Carey Law: Legal Scholarship Repositary , 2018. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2780&context=faculty_scholarship. Jones, Callum. “‘She’s Going to Prevail’: FTC Head Lina Khan Is Fighting for an Anti-monopoly America.” The Guardian , March 9, 2024. https://www.theguardian.com/us-news/2024/mar/09/lina-khan-federal-trade-commission-antitrust-monopolies. Katz, Ariel. “The Chicago School and the Forgotten Political Dimension of Antitrust Law.” The University of Chicago Law Review , 2020. https://lawreview.uchicago.edu/print-archive/chicago-school-and-forgotten-political-dimension-antitrust-law. Khan, Lina. “Amazon’s Antitrust Paradox.” The Yale Law Journal 126, no. 3 (2017). https://www.yalelawjournal.org/note/amazons-antitrust-paradox. Khan, Lina. “The Ideological Roots of America’s Market Power Problem.” The Yale Law Journal 127 (June 4, 2018). https://www.yalelawjournal.org/forum/the-ideological-roots-of-americas-market-power-problem. Khan, Lina. “The New Brandeis Movement: America’s Antimonopoly Debate.” Journal of European Competition Law & Practice 9, no. 3 (2018): 131-32. https://doi.org/10.1093/jeclap/lpy020. Koenig, Bryan. “DOJ Has a Long Set to Play against Live Nation-Ticketmaster.” Law360. Last modified May 23, 2024. https://www.crowell.com/a/web/4TwXzF6sFW49adb3eTjznR/doj-has-a-long-set-to-play-against-live-nation-ticketmaster.pdf. Layton, Roslyn. “Live Nation's Anticompetitive Conduct Is a Problem for Security.” ProMarket. Last modified June 25, 2024. https://www.promarket.org/2024/06/25/live-nations-anticompetitive-conduct-is-a-problem-for-security/. Levine, Jay L. “1990s to the Present: The Chicago School and Antitrust Enforcement.” Porterwright. Last modified June 1, 2021. https://www.antitrustlawsource.com/2021/06/1990s-to-the-present-the-chicago-school-and-antitrust-enforcement/. Markham, William. “How the Consumer-Welfare Standard Transformed Classical Antitrust Law.” Law Offices of William Markham, P.C. Last modified 2021. https://www.markhamlawfirm.com/wp-content/uploads/2023/06/How-the-Consumer-Welfare-Standard-Transformed-Classical-Antitrust-Law.final_.pdf. McKenna, Francine. “What Made the Chicago School so Influential in Antitrust Policy?” Chicago Booth Review. Last modified August 7, 2023. https://www.chicagobooth.edu/review/what-made-chicago-school-so-influential-antitrust-policy. Office of Public Affairs - U.S. Department of Justice. “Justice Department Sues Live Nation-Ticketmaster for Monopolizing Markets across the Live Concert Industry.” News release. March 23, 2024. https://www.justice.gov/opa/pr/justice-department-sues-live-nation-ticketmaster-monopolizing-markets-across-live-concert. “Sherman Antitrust Act.” Britannica. Accessed August 5, 2024. https://www.britannica.com/biography/John-Sherman. “Sherman Anti-Trust Act (1890).” National Archives. https://www.archives.gov/milestone-documents/sherman-anti-trust-act. “The Ticketmaster/LiveNation Merger: What Does It Mean for Consumers and the Future of the Concert Business?: Hearings Before the Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights (2009) (statement of David A. Balto). https://www.judiciary.senate.gov/imo/media/doc/balto_testimony_02_24_09.pdf. Treisman, Rachel. “Taylor Swift Says Her Team Was Assured Ticket Demands Would Be Met for Her Eras Tour.” npr. Last modified November 18, 2022. https://www.npr.org/2022/11/17/1137465465/taylor-swift-ticketmaster-klobuchar-tennessee. United States v. Microsoft Corp., 584 JUSTIA (Apr. 17, 2018). https://supreme.justia.com/cases/federal/us/584/17-2/. “U.S. v. Microsoft: Court’s Findings of Fact.” U.S. Department of Justice. https://www.justice.gov/atr/us-v-microsoft-courts-findings-fact. Varney, Christine A. “The TicketMaster/Live Nation Merger Review and Consent Decree in Perspective.” Speech presented at South by Southwest, March 18, 2010. U.S. Department of Justice. Last modified March 18, 2010. https://www.justice.gov/atr/speech/ticketmasterlive-nation-merger-review-and-consent-decree-perspective. Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, 540 JUSTIA (Oct. 2003). https://supreme.justia.com/cases/federal/us/540/398/.

Peaceful Animals A Look into Black Pacifism and the Pedagogy of Civil Rights in American Public Education Jade Fabello The University of Texas at Austin Author Anchita Dasgupta Alexander Ogilvy Alexis Biegen Audrey McDermott Editors Fall 2019 Download full text PDF (9 pages) The following are the key points of the American civil rights movement according to current United States public education curricula. First, the Reverend Dr. Martin Luther King nobly campaigned for peace and nonviolence. Then Rosa Parks, feeling tired, refused to give up her seat on a bus. Another figure, Malcolm X, was similar to King but he was violent. And then tragically, a random actor shot Dr. King in the cheek. That is where the story usually ends. American racial tensions subsided until the election of Barack Obama. This oversimplification reflects the entirety of the knowledge imparted to many who have experienced the United States public education system. American history education is, in a word, lacking. United States history curricula downplay the impact felt by marginalized groups in this country, producing alarming results. This paper asserts that the pedagogy of Black history in American middle and high school public education centers around convenient and pointed narratives. Especially with regard to forms of protests during the civil rights movement, these narratives have been intentionally structured in a manner that, by way of purposeful omission and harmful misinterpretation, promote the passivity and pacifism of Black Americans. Obtaining accurate and comprehensive information about the Black American condition is an endeavor that one must explicitly elect to partake in. Simple reflection by anyone who has been exposed to American public education reveals that the most prominent figures discussed are white. The history of minority groups seldom sees the light within core curricula. This contemporary self-taught requirement for knowledge acquisition directly parallels to American Slavery. As explored in Self-Taught: African American Education in Slavery and Freedom by Heather Andrea Williams, African Americans’ quest for education has historically been an uphill battle. Unsurprisingly, society rarely provided enslaved individuals a means to an education. The barriers to literacy and other such skills have historically been high. In 1830, North Carolina passed a statute making the education of slaves—either by freedmen or other slaves—a harshly punishable crime. The internal logic of the law operated with an understanding of the relationship between denial of education and self-preservation of the system. As Frederick Douglass states in The Narrative of the Life of Frederick Douglass: An American Slave: “The more I read, the more I was led to abhor and detest my enslavers." By affording knowledge and context to the oppressed, the oppressor risks lessening their status as such. Douglass’ education directly facilitated his liberation and eventual coalescence into the abolition movement. While the laws may have changed, the mechanisms that work to suppress Black political action remain as a product of Black history education. To understand this, one must first endeavor to comprehend the pedagogical evolution of the gravest ill inflicted upon Black bodies in America: equating Black people with animals. Intense and categorical dehumanization is a central part of the institution of slavery. In the US Constitution, Article 1, Section 2, Clause 3: the Three-Fifths Compromise, the language of dehumanization of Black people is codified into the most important document of the American polity. Societal justifications and the cognitive dissonance required for the institution of slavery are well discussed in modern academic literature. Broadly speaking, however, the afterlives and scope of the brutality of slavery continue to be poorly understood. In his work The Autobiography of Malcolm X as told to Alex Haley, Malcolm X balked at the historical knowledge that the average Black American possessed, saying “it’s unbelievable how many black men and women have let the white man fool them into holding an almost romantic idea of what slave days were like." Prior to the Civil Rights Movement, slavery was often suggested to be a mutually beneficial situation. In return for food and shelter, slaves provided free labor to their masters. This specific framing is fortunately less common than in previous eras. Nevertheless, it would be incorrect to assume that this erroneous pedagogy is a relic of the past. In 2015, the New York Times revealed that a textbook by major publishing company McGraw-Hill Education printed the phrase “the Atlantic Slave Trade… brought millions of workers from Africa to the southern United States to work on agricultural plantations." This example of nomenclature choice presents an active rewriting of history. The word “workers” implies a compensation that was non-existent in American slavery. Captured Africans and American Blacks were used as currency; they did not receive it. These specific and at times subtle framings contribute to the understating of American slavery. Every individual choice of diction carries moral and political content. It is in the exact verbiage of American historical documents that laid the groundwork for the evolving and sustained systems of Black oppression. If in contemporary times the basic foundations of Black people being in America are understood as a consensual employment, then the opportunity for discussion of the continued maltreatment of Black people has no foothold. After some controversy, McGraw-Hill Education acknowledged the error. However, the “misprinted” issues will likely circulate for years to come (McAfee). This instance, which some would consider an outlier, does not deviate significantly from the actual standards. Improvement from past pedagogies is undeniable, however, the present approach to education does not adequately capture the brutalities and atrocities of enslavement. The current educational system cannot afford proper context for the current state of being for the Black individual, without recognizing the inhuman cruelty that has been historically inflicted upon the Black community in America. Simultaneously, members of unafflicted groups have less of a basis from which they can understand contentions asserting the continued existence of institutional racism. Racism is deeply woven into many facets of society, making it difficult to pinpoint parties solely responsible for the historical miseducation of American youth. However, when it comes to a substantial portion of the information diffused throughout the nation, few governing bodies have more of a direct impact than the Texas Board of Education. Former social studies textbook editor Dan Quinn states: “What happens in Texas doesn’t stay in Texas when it comes to textbooks." The Texas market for textbooks is unequivocally large. Therefore, the guidelines set in place by this body have profound implications on the textbooks received by much of the nation. This reality is extremely troublesome when we look at both statements made by board officials and some of the recent sets of the Texas Essential Knowledge and Skills (TEKS), which outlines the curriculum required for Texas public schools. After the board adopted the then-new standards in 2010, board member Pat Hardy was quoted saying “there would be those who would say the reason for the Civil War was over slavery. No. It was over states’ rights." While this statement is from 2010, its impact and that of other comments like it are still apparent and intensely relevant. A 2018 survey of one thousand high school seniors by the Southern Poverty Law Center found that only eight percent of students can correctly identify slavery as the central cause of the civil war. Attempts to relegate slavery to an insignificant role takes away agency from Black individuals who sought their liberation through their tireless strife against slavery. Correcting pedagogy is a particularly challenging endeavor. The agents of that change—educators and guideline setters—are often the products of miseducation themselves. The Southern Poverty Law Center notes that “teachers struggle to do justice to the nation’s legacy of racial injustice. They are poorly served by state standards and frameworks, popular textbooks and even their own academic preparation." The Texas State Board of Education did recently agree to acknowledge the centrality of slavery in the Civil War. While credit is due, this is merely a starting line and does not rectify the other deficiencies in standards or the in-classroom experience of teaching with racial ineptitude. The official TEKS has only included Jim Crow Laws and the Ku Klux Klan as teaching requirements as of the November 2018 revisions. This former exclusion again has contributed to the dismissal of suffering crucial to contextualization. However, the document has long since mentioned the Reverend Dr. Martin Luther King (TEA 7). King’s remarkable contributions towards assisting the Black condition are undeniable and merit inclusion into educational standards. However, the way the American education system broaches King further promotes the pacification of the Black race. The current collective consciousness greatly downplays the radicalism of King and fellow Civil Rights leader Rosa Parks. Peter Dreier, a professor of politics and director of the Urban & Environmental Policy department at Occidental College, discusses how “in the popular legend, Parks is portrayed as a tired old seamstress…who, on the spur of the moment...decided to resist the city’s segregation law by refusing to move to the back of the bus on December 1, 1955." However, Dreier continues to explain that the reality of the situation was that the move came as a result of a massive coordinated effort on the part of veteran activists. This account is corroborated by (among other sources) Taylor Branch’s Parting the Waters , Stewart Burns’ Daybreak of Freedom: The Montgomery Bus Boycott , and Rosa Parks’ autobiography, My Story . The removal from America’s shared memory of the careful and calculated effort to dismantle Jim Crow sells short the scale of the effort required to uproot institutional boundaries. He continues, “Contemporary struggles for justice...may seem modest by comparison to the movements of the 1960s that began in Montgomery in 1955." The false yet ubiquitous narrative of the she was tired, so she sat cause and effect ignores the radical line of thinking that openly and actively defies American racism. The simplification of Parks’ actions in education resources does not accurately depict the radical schools of thought that she exemplified. The pacified version of King, provided to the average American student, debases his radical ideas and uses them to combat current political and social movements. King has often been haphazardly invoked in attempts to pacify or condemn post-police brutality rioters or NFL protesters. We live in a time where it is antiquated to believe that online comments hold no relevance in the grander discourse. The term internet “trolls” is currently included in official reports created by top United States Federal Agencies. Posts on YouTube, Facebook, Twitter or other such sites are legitimate reflections of the society in which they originated. As such, the vitriol and ignorance found in online commentary are troubling indications of mass miseducation. Politicians and individuals use specifically-curated King quotes to fit whatever narrative is convenient. This pacified version of King is then in turn used to pacify Black people. These protest-dissenting claims bear no mind to the wider breadth of the King library of thought—which includes the September 27th, 1966 CBS interview, in which King stated: “I think that we’ve got to see that a riot is the language of the unheard." Dr. King’s vocabulary was not limited to the four word phrase “I have a dream.” While he may not have endorsed violence in the context of social movements, it is apparent that King’s thoughts on riots would not align with those who often champion his name. In modern America, King is near universally understood to be a figure worthy of praise. It is so often forgotten that King was fiercely unpopular with the majority of society for much of his life. In 1966, the Gallup measure of King polled his admiration levels at 32% positive and 63% negative. Yet modern mythos takes this for granted. The education system inserts into popular consciousness a particular mold of how an oppressed Black person seeking change should act. That mold is a very corrupted memory of Dr. King. To call King strictly nonviolent is itself misleading. While King’s rhetoric may have been very deliberate, one can not divorce racism from violence. King and his followers employed a disciplined sacrifice of the Black body. The violence was there. It simply was not directed towards white bodies or white property. We are presented with King because he comparatively easy to digest. His general message of nonviolence is malleable. Little to no emphasis is regarded to the failures, shortcomings, and bitter reality of the civil rights movement as a means for achieving social change. Despite King’s desire to expose the grave violence of racism, the presented, pared down version of him does not force us as a collective to deeply explore the gravity of the injustices placed against Black people. A firehose directed at protestors, while shocking and horrific, still rests easier on people’s minds than the state-sponsored murder of Black Panther Captains. Further, the High School TEKS does briefly mention the Black Panther Party for the sake of contrasting their beliefs with those of MLK. The author of this paper, themself a product of Texas high school public education, can attest that in practice this comparison amounts to a further dismissal of the validity of their actions—while touting King’s “peaceful” approach. Neither the middle school nor high school TEKS makes reference to King’s influential counterpart, Malcolm X. Again anecdotally, mentions of Malcolm X consists of characterizing him as violent and little else. In the civil rights section of the San Jacinto Museum’s Curriculum Guide for Teaching Texas History , which aligns with TEKS, Non-Violent Protest is the first critical vocabulary point. Shortly thereafter, the curriculum suggests that “students should have a basic knowledge of the rights of United States’ citizens to petition the government for a solution to grievances." Again, while there is validity in discussion around this form of protest, the same section draws the parallel to the “Declaration of Independence as a list of complaints by the colonists against King George in England." It is ironic that a proudly boasted and bloody revolution was subsequent to that list of complaints, while Black Power groups, which almost exclusively subscribed to revolutionary mentalities, receive no mention in the Guide. In America, “violence” is an acceptable means to achieve an end as long as those who carry it out are not of a dark complexion. The themes of what has been selectively chosen to receive praise or condemnation in our teachings of history, while not surprising, have dire implications. In America, passivity and pacifism are standards that are disproportionately held to Black and Brown bodies. Malcolm X articulated this point to an LA crowd in 1962: The white man is tricking you. He’s trapping you. He doesn’t call it violence when he lands troops in South Vietnam. He doesn’t call it violence when he lands troops in Berlin. When the Japanese attacked Pearl Harbor, he didn’t say get nonviolent. He said, “Praise the Lord but pass the ammunition.” The double standard outlined by X places boundaries on current political efforts lest they risk misaligning with the beliefs of the deified King. The complexities of Malcolm X’s ever-evolving racial beliefs cannot be justly covered within the scope of this paper. But the classification of his actions and beliefs as merely violent is wildly inaccurate and harmful. X’s more direct and introspective approach presents a perspective that we can not afford to remove from education standards. Major influential names of the Black Power movement similarly receive no mention. For example, the status quo completely ignores the perspectives of Fred Hampton, the young Panther captain who was assassinated by the FBI, and Robert F. Williams, author of the book Negroes with Guns . This erasure limits both Americans’ understanding of the context in which these ideologies evolved and their understanding of the options available to combat systemic oppression. The omission of these figures is indicative of a larger narrative that operates under the impression that Blacks are innately dangerous creatures, and therefore should not be encouraged to take a bold and active role in liberation, lest they risk harming white Americans. America frowns upon the idea that Blacks should either want or need to defend themselves. The absence of these individuals (X included) from not only TEKS but the AP US History Guideline and Common Core standards is indicative of the devaluation of an entire school of thought. There are subjective flaws in the ideologies of both King and X. However, by only providing a simplified and one-sided narrative of the pursuit for Black Liberation, the historical curriculum discourages radical approaches of combating deeply rooted problems. Education’s intrinsic relationship with a successful society is best defined by iconic author James Baldwin in 1963: Man is a social animal. He cannot exist without a society...Now the crucial paradox which confronts us here is that the whole process of education occurs within a social framework and is designed to perpetuate the aims of society. Thus, for example, the boys and girls who were born during the era of the Third Reich, when educated to the purposes of the Third Reich, became barbarians. The paradox of education is precisely this—that as one begins to become conscious one begins to examine the society in which he is being educated. The purpose of education, finally, is to create in a person the ability to look at the world for himself…But no society is really anxious to have that kind of person around. What societies really, ideally, want is a citizenry which will simply obey the rules of society. If a society succeeds in this, that society is about to perish. By leaving out parts of the story, the United States stifles the consistent efforts of radicals and revolutionaries to reveal evidence of how the country has undermined the civil rights of Black Americans in the past and present. Our education system helps to perpetuate a narrative of both Black inhumanity and Black pacifism. In order to give Black youth the tools to contextualize and confront the contemporary manifestations of racism that our education system neglects to address, US public education must deliberately address the duality of the civil rights movement: a struggle for Black Liberation that has been both peaceful and violent. Works Cited "Act Passed by the General Assembly of the State of North Carolina at the Session of 1830—1831" (Raleigh: 1831). “AP® United States History Including the Curriculum Framework.” College Board Web. 5 Dec. 2016. Baldwin, James. "The Negro Child - His self Image." 16 October 1963, Lecture. Brown, Emma, “Texas officials: Schools should teach that slavery was ‘side issue’ to Civil War.” The Washington Post. Web. 5 December 2016. Colins, Gail @nybooks. "How Texas Inflicts Bad Textbooks on Us." The New York Review of Books. N.p., n.d. Web. 05 Dec. 2016. Douglass, Frederick, Gregory Stephens, and Peter J. Gomes. Narrative of the Life of Frederick Douglass: An American Slave. N.p.: n.p., n.d. Print. Dreier, Peter. "Rosa Parks: Angry, Not Tired." Dissent 53.1 (2006): 88-92. Web. Fernandez, Manny, and Christine Hauser. "Texas Mother Teaches Textbook Company a Lesson on Accuracy." The New York Times. The New York Times, 2015. Web. 13 Sept. 2016. Gallup, Inc. “Martin Luther King Jr.: Revered More After Death Than Before.” Gallup.com, 16 Jan. 2006,news.gallup.com/poll/20920/martin-luther-king-jr-revered-More-after- death-than-before.aspx. McAfee, Meloncyee. "McGraw-Hill to Rewrite Textbook after Mom's Complaint." CNN. Cable News Network, n.d. Web. 05 Dec. 2016. National Governors Association Center for Best Practices, Council of Chief State School McGaughy, Lauren. “Texas History Curriculum: Hillary Clinton and Alamo 'Heroes' Are in. Oprah's Out.” Dallas News, 16 Nov. 2018, www.dallasnews.com/news/education/ 2018/11/13/texas-education-board-debate-eliminating-helen-keller-hillary-clinton-others-history-curriculum. Officers Title: Common Core State Standard. National Governors Association Center for Best Practices, Council of Chief State School Officers, Washington D.C. Copyright Date: 2010 Pittman,Yvonne, Appleby, Elizabeth, and Stuthers, Lisa. “Curriculum Guide for Teaching Texas History.” San Jacinto Museum of History One Monument Circle. Jan 8. 2013 Rothman, Lily, "What Martin Luther King Jr Really Thought About Riots." Time. Time, n.d. Web. 05 Dec. 2016. Southern Poverty Law Center (SPLC). “Teaching Hard History American Slavery.” Web. 17 Nov. 2018. Texas Education Agency (TEA). "Texas Education Agency - Texas Essential Knowledge and Skills. Chapter 113. Texas Essential Knowledge and Skills for Social Studies " Texas Education Agency -Welcome to the Texas Education Agency. N.p., n.d. Web. 4 Dec. 2016. United States. NSA, CIA, FBI. ICA. Background to “Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution. N.p.: n.p., n.d. Web. 20 Feb. 2017. Williams, Heather Andrea. Self-taught: African American Education in Slavery and Freedom. Chapel Hill: U of North Carolina, 2005. Print. X, Malcolm “The White Man is Tricking You!” Nation of Islam. Los Angeles 22 May, 1962 X, Malcolm, and Alex Haley. The Autobiography of Malcolm X. New York: Ballantine, 1992. Print.

Author Name < Back Shoring Against Our Ruin: An Investigation of Profound Boredom in Our Return to Normal Life Virginia Moscetti Returning to campus after what felt like a lifetime of virtual schooling, quarantining, and all the other cheerful aspects of living and studying during the height of the COVID-19 pandemic, I was thrilled to finally return to a normal college experience. And yet, it has been anything but normal. Besides the fact that the pandemic continues to drag on indefinitely, bringing with it certain indispensable COVID prevention strategies, like mask-wearing and bi-weekly testing, there is something more obstructing my return to the normal, pre-pandemic college experience I had so eagerly anticipated. My old routines now feel empty, and my previous passions and interests have fallen flat. I trudge about daily life listlessly, keeping up with my academic and extracurricular commitments simply because I don’t want to royally screw up the rest of my life. In short, I am bored, and I’m not the only person to feel this way. According to a recent article by Times Magazine, approximately 12 million Americans quit their jobs last summer. For Americans between the ages of 20-34, 14 million have either resigned or neglected to join the traditional workforce. While some resigned in pursuit of higher wages and better working conditions, a significant portion of Americans sought non-traditional jobs or simply reveled in “funemployment”. This phenomenon, informally termed “The Great Resignation,” is deeply connected to the pandemic and our recent quasi-return to normal. During the initial stages of the pandemic, everything came to a standstill. Going to work, walking to class, living in a dorm, and frequenting friends and family was no longer possible. Daily routines, as a result, altered substantially. We became accustomed to working, studying, and interacting through screens from the relative comfort of our homes. We developed hobbies to pass the time. Our relationships changed, for the better and also for the worse. Ultimately, everyone desperately looked toward a final return to normal, but with the semi-normal return that came, we were strikingly confronted with how much had changed within the world and within ourselves. With so much change, a return to pre-pandemic existence seems impossible. What one did then is not the same as what one does now, and, by extension, our possibilities for individual meaning-making in the world are not the same as our previous ones. Unable to authentically recreate past forms of meaningful doing and acting in the world as they used to exist, the attempt to do so in our quasi-post-COVID life becomes pervaded with a sense of meaninglessness. Going to work a specific job because that is what one used to do is no longer a sufficient justification for working it now, especially since, with so many people quitting their jobs or taking untraditional work trajectories, the structure of a working life has substantially, perhaps even normatively, changed. Unless that work continues to generate meaningful fulfillment, reenacting old ways of performing one’s daily life can produce a diffuse sense of indifference or boredom. In The Fundamental Concepts of Metaphysics , 20th century philosopher Martin Heidegger describes the boredom resulting from a confrontation with a sense of meaninglessness in our actions and routines as the phenomenon of “profound boredom.” Heidegger argues that in profound boredom, we are exposed to the structures of our existence and, through that exposure, can newly discover meaningful ways to project ourselves into the world. In this paper, I will investigate the extent to which Heidegger’s profound boredom is reflective of the form of boredom playing out in contemporary society and how his solution might offer a productive remedy. In order to do this, I will reference T.S Eliot’s “The Waste Land,” a poem which copes with widespread disillusionment in modern society following the devastation of World War I and the increased technological advancement in the Second Industrial Revolution. Examining both Eliot’s and Heidegger’s representations of boredom, I will demonstrate (1) how boredom can take on existential proportions, (2) how globally disruptive experiences can instantiate this boredom, and (3) how this boredom may be resolved by acknowledging our own facticity and our own freedom to choose how we want to act within our world by meaningfully repeating past possibilities of doing and acting. Comportment, Dasein, and The One According to Heidegger, all individuals have a particular style or way of interacting with the features of the world. This style, which Heidegger terms comportment, is structured by an individual’s goals and projects. In short, what they find meaningful. For instance, entertaining the ultimate goal of becoming a philosopher, I am oriented and disposed towards the world accordingly: I choose to undertake an undergraduate major in philosophy, I dedicate myself to my philosophy courses, and I choose to attend graduate school all for the sake of this goal. As I do so, I develop a particular manner of comporting myself toward (i.e., a particular way of acting in) the world. This comportment, while it pertains uniquely to each individual, is superimposed upon the individual’s “Dasein”. According to Heidegger, human beings are a particular type of entity which he terms “Dasein” – it can be loosely translated from German to mean “being-there”. Dasein interacts with the features of the world to advance its own particular goals and projects which illuminate a certain “style” or way in which Dasein approaches the world. As Heidegger describes, Dasein performs its actions and activities (i.e., its being) according to this particular style or comportment. Reciprocally, Dasein’s actions and activities reflect the comportment through which it approaches them. For example, if I entertain the ultimate goal of becoming a philosopher, I comport myself and am disposed toward the world accordingly: I choose to major in philosophy, I dedicate myself to my philosophy courses, and I choose to attend graduate school all for the sake of this goal. In pursuing certain projects and goals, I develop a particular manner of comporting myself toward (i.e., a particular way of acting in) the world. Additionally, the way that I act and do things (my comportment) both reflects and constitutes my understanding of myself. As I perform the actions that reflect the goal of becoming a philosopher, they also inform and constitute how I understand myself to “be” or act within the world as this particular individual which finds such and such projects meaningful. Thus, by attending my philosophy classes, I reinforce my understanding of myself as someone who loves philosophy and aims to become a philosopher. Of course, I can do things that would seemingly be “out of character” or at odds with my regular comportment, but in designating such an instance as “out of character,” I directly make reference to a contradiction between how I understand myself to act and a particular action or instance. Thus, to use Heideggerian terminology, as Dasein performs its being according to a particular comportment, it relates that comportment to the understanding of itself as itself, so that the mode in which it enacts its being is synchronized with how it understands itself to be. While, being in the world according to a particular comportment, I do, act, and choose things that reflect a particular understanding of myself, what I do, how I act, and what I choose is invariably subject to what is available to me within my world. Just as I could not build a house without the tools to do so, I could not pursue a career in philosophy if philosophy were not an established (or at least an existent) field of study. Accordingly, Dasein’s involvement in the world is structured by the features and beings present and accessible to it within that world. Dasein’s being in the world is also a ‘being-with’ others. Being-with becomes especially apparent in the manners in which Dasein interacts with objects and other features of the world through historical and culturally contingent social norms. For Heidegger, these conventions are exemplified through “what one does.” For example, one shakes hands when meeting a new person, one places one’s napkin on one’s lap at the table prior to beginning a meal, one drinks with a glass and eats with forks, knives, and spoons. While “one” does not designate any one particular individual, it designates an abstract collection of us (in which we are all included) that Heidegger terms the “They”. Insofar as I do as “one” does, I participate in the “They”, so that my actions reflect the larger social conventions of my community rather than what is meaningful and particular to me. By adopting these social conventions and rooting the “meaningfulness” of my actions within a contingent social order, I simultaneously flee the responsibility and accountability for my actions (as things which “I” rather than “They” elect to pursue) and relinquish my inherent freedom to pursue actions that are meaningful to me. Still, doing and knowing what one does fundamentally configures my “everyday” being-in-the-world (i.e., the way I act and relate to the world). As Mark Wrathall writes in How To Read Heidegger , “in the first instance and most of the time, we relate to others in the mode of ‘the one,’ which means that we understand ourselves in terms of what one says about the way one should live, that is, in terms of what one ordinarily does in situations that confront us”. Therefore, Dasein’s everyday existence (i.e., the typical or common way in which it is, both in terms of what activities it enacts and how) is, to some extent, immediately structured by what one does. For example, I go to the grocery store or the farmers market because that is what one does to purchase food in my community. At the grocery store, I acquire ham and other meats at the deli because that is what one does. My decision to go to the grocery store and my entire experience within that grocery store is organized by what one does. And this same structure applies to most of Dasein’s other everyday activities. Because Dasein’s “everydayness” is, to some extent, fundamentally structured by what one does, Dasein is never entirely inextricable from the “They.” Still, it is important to reiterate that “what one does” is not intrinsically meaningful in and of itself but a way of acting that reflects our socio-historically contingent norms and conventions. During our pre-pandemic existence, departing to work or school, completing errands outside of the home, and visiting and engaging with others in physically close proximity was simply what one did and, as such, characterized our “everyday” existence. In enacting these doings and activities of “what one did,” we became oriented toward and learned to relate to the world in terms of the pre-pandemic “one.” Consequently, the pre-pandemic understanding of what one did formed part of our self-understanding, or understanding of our everyday they-selves which, in turn, undergirded those particular selves we claimed to be or exist as. For example, a college student understands his everyday they-“self” as a college student (at least partially) in terms of what one does in college. In the pre-pandemic world, this meant attending classes within a classroom, studying in a library alone or amongst friends, securing internships, discovering a potential career path, perhaps occasionally partying. As he performs these things, he relates them back to his self-understanding as a “college student.” During the seemingly interminable months of quarantine, daily life underwent a fundamental transformation. Everyone, to some extent, conducted their social, academic, and work lives on various virtual platforms. Thus, what one did and how one worked altered drastically during quarantine. For our anonymous college student, virtual schooling and socializing became integrated into his everyday existence, and thus formed part of his everyday “self,” or how he acted and understood himself to be as a college student. Now, emerging out of quarantine with our quarantine beards and unshaven legs, we are tasked with what feels like the Herculean feat of “returning-to-normal” pre-pandemic life and what one did in that life. And yet, because we established a new normal and thus a new definition of what one does during quarantine, that “return” implies reproducing a performance or rehearsal of oneness that is, after such significant change since the onset of the pandemic, no longer applicable or even existent. As a result, the prevailing expectation of a return to normalcy confronts us with a conflict of “oneness” in which what one did and how one understood oneself to be as a college student, as a software engineer, doctor, or librarian is no longer what one does or how one understands oneself to be as such in our current world. In other words, the pre-pandemic “one” no longer determines our performance of “oneness.” However, here we are confronted with another problem: what does one do now? And by extension, how does one even understand oneself to be in the world? Is our college student still a college student within the pre-pandemic social definition and understanding of the term after spending close to a year in a virtual social and academic environment? Does he even understand himself to be the same college student that he once was before the pandemic? If not, is he left without anything to refer to in order to devise meaning and intelligibility from the strange, anomalous current life-experiences he must undergo? And, what if his goals and projects changed during quarantine? Must he now rehearse, along with all of us, what one did in the pre-pandemic life with those same goals and projects despite their inability to cohere with his current way of relating to the world? What are the implications of this rehearsal of pre-pandemic one-ness for Dasein who, after so much time understanding itself, relating to the world, and, as it were, devising meaning of its existence through the social conventions and modes of being associated with quarantine, must now adopt a performance of one-ness that is no longer meaningful to it; that no longer reflects how it understands itself to “be?” Published in 1922, six years after World War I and approximately fifty years after the onset of the Second Industrial Revolution, T.S Eliot’s modernist poem “The Waste Land” appears to cope directly with the implications of meaninglessly rehearsing “what one did.” In Part II of the poem, A Game of Chess , a man and woman are having a disjointed conversation. The woman anxiously exclaims “What shall we do? What shall we ever do?” to which the man responds cryptically: “ The hot water at ten. And if it rains, a closed car at four. And we shall play a game of chess, Pressing lidless eyes and waiting for a knock upon the door.” In asking what they will do, the woman expresses an existential concern for meaningful, fulfilling “doing” or action. The man, however, suggests that no such doing is possible and that they are instead condemned to a life of listlessly repeating old routines until death or some other existential “knock upon the door” delivers them from it. The poem famously purports to diagnose the catastrophic ills and pains of modern society in the post-war period. With the unprecedented violence of World War I and the increased mechanization of modern society following the Second Industrial Revolution, the profound and diffuse listlessness that Eliot describes appears to be symptomatic of the failure of traditional values and certainties such as religion, family life, and canonical forms of art and literature to infuse human life with meaning in this new context. As the poem describes, religion, challenged by the immense loss of human life and the increase of sexual promiscuity in the war, could not save, family and domestic life could offer no sanctuary, and traditional art forms could no longer accurately depict or reflect human life. While their failure to create meaning implies a kind of fracturing between a pre-war and post-war society in which the modern individual now found itself situated, this failure also discloses the fundamental contingency of socio-cultural norms, values, and traditions. If these values and certainties were inherently meaningful in and of themselves, they would continue to be meaningful irrespective of the contexts and conditions in which they were applied. However, because these values and certainties somehow seemed to lose their meaning for those subjects in the poem and the larger modern society confronted with a sense of meaninglessness and boredom in daily life, they were forced to recognize that their presumed meaningfulness was a self-contrived illusion, or, perhaps, ask themselves “what is wrong with me that these things have lost their meaning?”. Since these traditional values and certainties structured how one (to an extent) related to the world, and by extension, what one did, their failure to create meaning likely produced a sense of boredom in those daily routines which revolved around “oneness” (which might have included, going to church, honoring traditional marriage, relationship, family, or other such dynamics in the domestic sphere, reading Shakespeare, etc.) and configured the “everyday” self. Because what became boring and meaningless was what one did, life was not boring to Dasein as this or that particular individual, but to Dasein as “one-self,” or the everyday self that acts, understands itself, and relates itself to the world in terms of the “One” and what one does. While the “one-self” may not be the particular, subjective self, because it informs, at least in part, how that particular self acts, the boredom encountered through the meaninglessness of Dasein’s everydayness problematizes how Dasein projects both its particular “self” and its they-“self” (as two, essential prongs of one and the same self) into the world. This is distinct from other forms of boredom (such as boredom with a specific object, social setting, event, etc.) in that it overwhelms Dasein’s every action in the world. As such, it can be understood within Heidegger’s notion of “attunement.” Attunement describes a state of mind that disposes us toward the world in a particular way. In order to explain this notion, consider the following hypothetical situation: while sitting in my room, I suddenly hear sirens blaring, people shouting and running, and see smoke leaking out from under my door. I become wholly overwhelmed with fear and alertness, leading me to scour the room for the closest exit or something with which to extinguish the imminent flames. My fear has completely altered the landscape of my environment so that certain objects become alternatively relevant and irrelevant to me depending on how they could be used. The pencil, for example, becomes irrelevant to me while a blanket by my bedside and an open window are relevant insofar as they might serve me in extinguishing the fire or escaping the room. As a result, my fear, as well as any other type of attunement, discloses that I must accept the circumstances of my world as they are revealed to me and what actions may be possible within those circumstances. While I submit myself to these circumstances, they also disclose opportunities for action or ways of utilizing certain objects that “matter” to me, or are significant to me to the extent that they help me extinguish the fire or escape the room. As a result, attunement constitutes how I am disposed toward the world and reveals my disclosive submission to that world. Like fear, profound boredom is a type of attunement in that it reveals our “disclosive submission [to the world], out of which we can encounter something that matters to us.” According to Heidegger, the confrontation with meaninglessness in Dasein’s everyday self can instantiate profound boredom (in which it is “boring for one”). In and through this confrontation Dasein is left “pressing lidless eyes and waiting for a knock upon the door” and is attuned to the world through profound boredom. Let us explore what this means through Jonathan Caballero, a 27 year old software developer who decided to join millions of Americans in quitting their traditional, pre-pandemic jobs. As a software developer, we can assume that in his pre-pandemic office space, Caballero may have perceived chairs, computers, conference rooms, telephones, among other things. He also had access to the different meanings implicit in these objects and the setting as a whole; the chairs, in the context of the office, may be for clients or co-workers to sit in, the computers to conduct programming with, respond to emails, type, etc, the telephone to communicate with, the conference rooms to host important office or client meetings, etc. In addition, we can assume, insofar as Caballero worked in this office in the pre-pandemic era, he comported himself in a particular way toward this office; a comportment that was structured by and made manifest a certain self which he (1) understood himself to be and, thus, (2) projected into the world. Thus, he was invested in the office space and its equipmental totality (i.e., the telephone, the computer, the conference room) as this particular self and for the sake of the projects, interests, and passions that are, to some extent, prescribed by the “one” but also reflect his own particularity as an individual. Each object, then, is meaningful to him through what they make possible toward advancing his multiple projects as his understood self which he understands himself to be. The telephone may be meaningful as a vehicle through which Caballero secures clients who may then elect to employ his services and, in doing so, secure the promise of a paycheck, and thus, fulfill his project of acquiring financial stability, the computer may be meaningful as the site of his work-activity in which he practices and improves his craft toward fulfilling his additional project of being an exceptional software programmer, and so forth. Additionally, the way in which Caballero came into contact with these objects, and by extension, the meaningful possibilities they imply, was in a nine-to-five, traditional working time-frame and environment. In other words, Caballero’s work, for which he was paid, did not simply consist of interacting with a certain kind of equipmental totality toward doing the work (in this case, software programming), but, because that work existed in a larger socio-cultural working structure, consisted of physically going to an office and being in that office space for a set period of time. Why? Because that is what one did as a member of certain sectors of the American labor force. One went to work, one spent time at a specified working location, and one returned home after the work day. Therefore, while his multiple projects (such as securing financial stability and being an exceptional software programmer) were made possible by the fact that those objects in his setting were used, and thus, could be used by one toward advancing these projects, these projects were also made possible by what one did, or more specifically, how one (within this particular sector of the American labor force) worked. Consequently, while they were made possible by how one worked, insofar as Caballero continued to work in terms of this oneness, his projects were also constrained to it. Caballero, then, projected himself meaningfully (to the extent that these projects are meaningful to him as that particular self which he understands himself to be) into the office space in terms of how one worked. This was his “everyday self.” Inevitably, during quarantine, Caballero began working virtually along with most other Americans. For him, this may have meant working from home, zooming into meetings fresh out of bed and still in his pajama pants, and spending what would have been his daily forty-five minute commute to and from the office by instead jumping in his pool and discovering new hobbies and interests. Assuming that the majority of his social community underwent a similar, if not identical, experience, not only did what he did change, but also what one did changed. Thus, one began to act in and relate to the world in a new way, ultimately leading each of us to understand ourselves in terms of this new, quarantine-generated way of being and relating to the world. Being a software engineer, or a college student, no longer implied physically occupying a particular location in physical proximity with others, but implied instead working, communicating, and socializing remotely. Returning to the pre-pandemic work life in this context, Caballero is tossed suddenly back into performing certain features of what one did, such as commuting to work, leaving the comfort of the home, and engaging with people face to face. His routine is now at odds with what he did and, by extension, what one did during the quarantine months. Because quarantine introduced a new performance of oneness and, thus, a new way of relating to the world, how Caballero presently understands himself to be, not simply as a software engineer but as a member of the socio-cultural world in which he exists, conflicts with the daily routines, or performance of everydayness, imposed upon him through the collective return to regular, pre-pandemic work life. Thus, these new routines, because they do not reflect how he understands himself (both as that particular self and as the one-self- which undergirds and gives rise to his particular self) are no longer meaningful to him. In addition, while this collective return strives toward pre-pandemic normalcy, this return breaks down as remnants of the pandemic continue to structure everyday existence. His current routines, while similar to pre-pandemic work life, ultimately fail to mean to him as such because they are, in a literal sense, not the exact same. In sum, then, Caballero cannot fully relate to the re-introduction of old, pre-pandemic routines into his daily life, and the performance of oneness they imply, because (1) what one does currently in these same routines is still somewhat different from what one once did, (2) quarantine changed his community’s performance of oneness, and thus, how he relates to the world in general, and (3) he understands himself, both as a particular self and as member of socio-cultural world in which he exists, differently than he did before the pandemic. Unable to relate to his routines as he once did, they fail to create meaning for him in the way that they had in the past, and he finds himself rehearsing a set of routines and performances that are meaningless to him (i.e. do not mean to him as in the way that they once did). Thus, he may exclaim to himself, staring at his computer in his old office space with his mask slipping beneath his nose, “What shall I do? What shall I ever do?” To which the One replies, “a lunch break at 12:00, a commute home at 4:00, and we shall try to know each other through our masks, pressing lidless eyes and waiting for a knock upon the door.” Like Eliot’s speakers, a profound boredom may pervade his entire approach to his office setting, his social life, and his entire rehearsal of a one-ness that no longer corresponds to his particular interests, goals, and passions as a particular self or his self-understanding within the socio-cultural framework in which he exists. Answering the phone, commuting to work, sitting in an office, these actions no longer mean to him as they once did. He feels profoundly bored. And, in feeling profoundly bored, he is attuned to his equipmental totality (i.e., the objects that are contained within his environment) and the settings in which they occur in terms of this boredom. However, because Caballero is bored with the rehearsal of a past one-ness and a past version of himself implicit in and made possible by this one-ness, his boredom extends beyond the confines of the office. Going to lunch with friends, returning home, cooking his dinner, he is progressing listlessly through the motions of old routines. While working from home may have been a situation particular to Caballero and his social community, most Americans, to some extent, experienced fundamental changes in their routines and daily life during the quarantine periods in the peak of the pandemic. Thus, the phenomenon of profound boredom that I address in this paper, while it varies widely in its causes for each individual, remains a seemingly wide-spread experience in our “return-to-normal” life. As Heidegger writes, in profound boredom “we are not merely relieved of our everyday personality, but elevated beyond the particular situation in each case and beyond the specific beings surrounding us there. The whole situation and we ourselves as this particular subject are thereby indifferent... Indeed this boredom does not even let it get to the point where such things are of any particular worth to us. Instead it makes everything equally great and equally little worth.” “Being relieved of our everyday personality” here means no longer going about our lives as either one does, or as the particular self (which is inevitably, to some extent, structured by “oneness”) that, through its comportment, Dasein understands. For example, instead of attentively picking up phone calls, quickly responding to emails, and meticulously conducting his work (and thus meaningfully re-enacting “how one worked” toward the realization of some particular project as that particular self), Caballero, in this boredom, is detached from and indifferent to the office environment, what one would do, and what he once did (as his past, pre-pandemic self) in that particular environment. In other words, he is indifferent to how objects in that environment may serve the realization of the projects that are meaningful to him. However, he is not only indifferent to what one does, but what one does becomes indifferent to him. The equipmental totality of his world and the beings included in that world (that designate, through “how one worked,” how that totality might or should be utilized) no longer offer him any possibility of acting out his project, which has become meaningless; they “refuse” him meaning. As Heidegger writes: There is a telling refusal on the part of beings for a Dasein that… in the midst of these beings as a whole comports itself toward them (toward them, toward those beings as a whole and their now telling refusal) and must comport itself toward them, if it is indeed to be what it is. Dasein thus finds itself delivered over to the being's telling refusal of themselves as a whole. As Dasein, Caballero inevitably comports himself toward the world as the particular self which he understands himself to be. However, because this “self” has fallen flat, or is no longer meaningful to him, he comports toward a world without meaning or possibilities in that comportment. Therefore, beings as a whole which once created and gave rise to new meaningful possibilities for him as that self, now “refuse” him those meaningful possibilities. This “telling refusal” by beings as a whole constitutes the first essential, structural moment of profound boredom: being-left-empty, being without meaning to be discovered in beings as whole. However, in telling refusingly, beings as a whole also highlight the possibilities for meaning-making that Dasein has exploited and are no longer meaningful to it. Sitting in his office or his home, his computer, his clients, his pens, his telephone, his friends, and his dinner table all refuse Caballero meaning as objects and beings through which he can act out his “self-hood.” In his profound boredom, the interaction with these beings and objects signals to him that they cannot be employed toward meaningful action because they imply a commingled performance of one-ness and a particular “self-hood” that are not meaningful to him. For example, his dinner table is no longer meaningful for him as something which one now, in our quasi-post-pandemic world, uses again (and thus makes possible) to dine amongst friends, but an object, which, in his profound boredom, points to his incapacity for meaning-making by continuing to exploit the possibility of “how one now uses” a dining table. Because using the dining table as such involves rehearsing a performance of pre-pandemic oneness that no longer corresponds with how Caballero understands himself (perhaps because he has since become uncomfortable with hosting dinner parties or having people over in general), his interactions with the dining table disclose (or “point to”) his inability to find meaning by continuing to exploit the possibilities involved in what one did before the pandemic. In revealing his exploited possibilities (i.e. the doing as both one and he once did) “ .. .there occurs the dawning of the possibilities that Dasein could have, but which are left unexploited precisely in this “it is boring for one,” and as unexploited, leaves us in the “lurch”. In other words, confronted with the meaninglessness of his own rehearsal of what one used to do before the pandemic (and consequently, the rehearsal of his particular, pre-pandemic self which understood itself in terms of a pre-pandemic oneness) and the possibilities for acting within that oneness, he becomes aware of other unexploited possibilities for acting. As a result, the telling refusal of possibilities carries, by association, a telling announcement of the possibilities he has not yet exploited. This telling announcement does not point to any one unexploited possibility for meaning-making, but rather points (arbitrarily) to the fact that there are possibilities that he has not yet explored. However, because these possibilities are left unexplored in Caballero's total and complete boredom with the world in general, he does not take up meaningful action and is thus, as Heidegger writes, “left in the lurch” or entrapped in a kind of limbo of inaction. This “being-left-in-lurch” or “being-in-limbo” in which Caballero is confronted with but does not act upon unexplored possibilities comprises the second structural moment of profound boredom: because “being-left-in-limbo” precludes a kind of meaningful moving forwards, it has a certain temporal feeling. When beings and the possibilities they create for meaning-making (i.e., a doctor makes possible the use of a scalpel as a medical tool, and thus, a meaningful tool for particular purposes) refuse themselves to Caballero, they refuse themselves as a whole: they refuse themselves in every respect, or in every respect, retrospect, and prospect, such that every past possibility that he exploited becomes meaningless to him as the version of his “self” he enacts has fallen flat. Likewise, any future, to-be-exploited possibility toward projecting that version of himself is also meaningless to him. But to whom do these possibilities refuse themselves? Not to Caballero as Caballero the particular, subjective individual, but to Cabellero as that self which acted in and related to the world in terms of a pre-pandemic one. As such, it is not boring for Caballero as the individual person, but boring for him as “One” or insofar as he continues to rehearse a kind of oneness that is no longer meaningful to him. But in the context of his own boredom with that pre-pandemic self that causes his possibilities as that self to recede, that pre-pandemic-self does not lose its determinacy, “but rather the reverse, for this peculiar impoverishment which sets in with respect to ourselves in this ‘it is boring for one’ first brings the self in all its to nakedness to itself as the self that is there and has taken over the being-there of Dasein. For what purpose? To be that Dasein”. In other words, in his profound boredom, as the meaningful possibilities for acting are refused to him as a pre-pandemic-self, he becomes aware of this refusal of the pre-pandemic self, and consequently, becomes aware of the self itself, or the self which he has chosen to project over his existence (i.e., “being-there” or Dasein) in the world. In becoming aware of that pre-pandemic self, he becomes aware of (1) the fact that he has chosen to be or act as that self, (2) rehearsing what one does or what one did is not inherently meaningful, and (3) that, as a result, in his existence as Dasein he has the possibility to choose other selves that do not adhere to the “one.” For example, it is possible for him to take advantage of new socio-cultural possibilities that are becoming available such as: the emergence of partially or fully virtual employment, the shift toward smaller in-person social circles, and the new, national emphasis on self-care and mental wellbeing. Thus, his boredom discloses to him that he must accept the circumstances of his world as they are revealed to him and what actions may be possible within those circumstances. The circumstances, and by extension, the world itself, thereby determines how he can act. Since he must accept the world’s determinations as to how he can act, he necessarily submits himself to the world. Still, this submission is not entirely passive. Instead, because his boredom reveals that he is capable of enacting a self (in this case, his pre-pandemic self), he becomes consequently aware of the possibility of enacting other selves and other ways of performing “oneness” that are gradually being made possible to him and to all of us in general. As a result, his boredom reveals the originary capacity of Dasein to make-possible other selves and the fact that he can choose to make-possible other selves that are meaningful to him. Confronted with the immensity of Dasein’s capacity to make-possible, without any definite direction as to what self or possibility he should enact, he is “held-in-limbo.” The phenomenon of “being-held-in-limbo” also involves a unique form of temporality. Refused any meaning by rehearsing the pre-pandemic one-self by beings as a whole, Caballero is refused meaning in every respect, retrospect, and prospect, or in the past, present, and future. In this way, beings-as-a-whole are no longer open to him along a temporal horizon, and the possibilities that they present along this horizon are closed off to him as him self because he is no longer interested in them as future possibilities for meaning-making nor finds his past actions and exploited possibilities meaningful. But, if beings as a whole refuse themselves in terms of a temporal horizon, such that Caballero cannot move forward meaningfully in time alongside them (or, in recollecting, conceive of past instances of action as meaningful to him), then they also make manifest those possibilities which he has not yet exploited in terms of a temporal horizon. The unexploited possibilities are things which he may have done in the past (retrospect) or can do in the future (prospect). Confronted with Dasein’s capacity for making-possible in the past and future, he is not only held-in-limbo at the immensity of the unexploited possibilities available to him, but entranced in time insofar as these possibilities remain unexploited. For example, thinking back to his past experiences in the office or in his training to become a software developer, he may discern other opportunities that he did not take up such as, perhaps, working in a satellite location in New York City or South America, working at a different corporation, or becoming a doctor, engineer, or astronaut,. Conversely, thinking toward his future, he may discern possibilities that are available to him in the here and now. And yet, insofar as he does not take up these possibilities, he remains entranced in time such that he remains indifferent to his past, present, and future and cannot move meaningfully forwards or backwards in time. He breaks this entrancement and transcends his boredom by experiencing “the moment of vision.” As Heidegger writes in The Fundamental Concepts of Metaphysics , “the moment of vision is neither chosen as such nor reflected upon and known. It manifests itself to us as that which properly makes possible, that which is thereby intimated as such only in being entranced in the direction of the temporal horizon and from there, intimated as what could and ought to be given to be free in Dasein’s proper essence as that which makes it most intrinsically possible, yet now in the entrancement of Dasein is not thus given.” The moment of vision is not experienced as a dramatic, transcendental instance, but as a kind of realization of the fundamental, originary properties of Dasein (i.e., “what properly makes Dasein possible”). As a being-there which comports itself understandingly toward that being, Dasein’s capability to enact a self and comport itself as that self in the actions and choices it undertakes is fundamental to its existence as Dasein. Thus, the moment of vision involves a “resolute disclosure of Dasein to itself,” or an awareness of Dasein’s own freedom to choose which self it wants to enact and then enacting that self that it chooses. Because Dasein’s self-enactment occurs along a temporal horizon (i.e., Dasein understands itself to be its “self” through past actions and choices taken as that self, enacts that self in the present, and projects that self in the future), its entrancement in time during profound boredom intimates, in its being refused meaningful action and doing in every retrospect, respect, and prospect, Dasein’s capacity to engage in meaningful action and doing within a temporal horizon. Thus, the instance in which Caballero resolutely discloses his own freedom to choose a self he wants to enact to himself, he experiences a kind of “moment of vision.” Soon after returning to his regular pre-pandemic job, Caballero quit and started looking for jobs with better remote work options. Now, we can assume that Caballero has time to jump in his pool in-between meetings and pursue those hobbies and interests that were otherwise impossible with his daily, pre-pandemic commute. By quitting his job and choosing to explore an alternate possibility of post-pandemic one-ness that is meaningful to him (in that this possibility enables him to engage with aspects of his life that became important to him during the pandemic), Caballero has exercised his essential freedom as Dasein and altered his comportment toward the world in a way that enables him to engage in meaningful doing and action in every retrospect (i.e., his past experiences have given way to his new self-enactment and are thus meaningful to him) respect (i.e., his current choices and actions now harmonize with what is meaningful to him), and prospect (i.e., his future choices will be meaningful to him insofar as he continues to enact that self which enables him to realize those projects which are meaningful to him). In sum, by altering his comportment toward the world, Caballero enacts a new self within that world, one that authentically (insofar as this new comportment reflects what is meaningful to him) incorporates and utilizes “oneness” toward realizing and fulfilling himself meaningfully. Importantly, this transformation in how he comports himself toward the world involves a meaningful repetition of “what one did.” While Caballero, as a member of a particular socio-cultural framework which requires some degree of financial stability in order to continue participating within that same socio-cultural framework, continues to work, he does so in a way that enables him to pursue his other interests and passions. Thus, he repeats or rehearses oneness (i.e., the socio-cultural emphasis on financial stability) in a way that is meaningful to him as a particular self. Reciprocally, how he comports himself toward the world (i.e., rehearses oneness) as that particular self manifests that which is meaningful to him (i.e., those projects, interests, and passions that comprise his “for-the-sake-of-which”) as that self. While T.S. Eliot and Heidegger were distinct writers and thinkers, they both seem to proffer the meaningful repetition of one-ness as a solution to profound boredom. In Eliot’s work, his meaningful repetition of “oneness” is exemplified by the structural fragmentation within his poem “The Waste Land . ” Throughout the poem, Eliot includes miscellaneous fragments of Dante, Shakespeare, Greek myths, as well as ancient languages such as Sanskirt. On a superficial level, these fragments produce a sense of disorientation and confusion within the reader who must now assemble these fragments toward a cohesive interpretation of the poem. While the reader’s sense of disorientation parallels modern society’s confrontation with meaninglessness and subsequent inability to ground existence in meaningful forms of doing and action in post World War I society, the fragments also illustrate how aspects of past, traditional pieces of literature can be assembled or “repeated” in a way that allows them to meaningfully reflect the modern experience. In the final section of the poem “What The Thunder Said,” Eliot begins by describing an apocalyptic scene in which “there is no water but only rock” and Jerusalem, Athens, Alexandria, Vienna, London, all descend into “unreality.” Here, Eliot describes the literal and spiritual devastation of Western civilization. The downfall of Jerusalem, Athens, and Alexandria all represent the inability of Ancient Western religion, art, literature, and history to salvage modern society from its ruinous apocalypse of meaningful action and doing by grounding that doing and action in the traditional values and certainties that characterize them. Instead, the downfall of London and Vienna, describes the devastation of a modern society unable to meaningfully ground itself in its Western socio-historical traditions and values. Thus, London, Vienna, Alexandria, Athens, and Alexandria, become “unreal;” they no longer possess or provide a meaningful reference point for real modern life to guide itself. Following this apocalyptic scene, Eliot writes at the end of the poem: I sat upon the shore Fishing, with the arid plain behind me Shall I at least set my lands in order? London Bridge is falling down falling down falling down Poi s’ascose nel foco che gli affina Quando fiam uti chelidon—O swallow swallow Le Prince d’Aquitaine à la tour abolie These fragments I have shored against my ruins Why then Ile fit you. Hieronymo’s mad againe. Datta. Dayadhvam. Damyata. Shantih shantih shantih. Sitting upon the cusp of the poem’s conclusion and fishing for meaning within the “arid plains” of the apocalypse looming behind him and before him, Eliot attempts to reinvigorate fragments of canonical pieces of literature by “organizing his lands” or assembling them together in new ways. The line “ Poi s’ascose nel foco che gli affina ” is an allusion to Canto 26 of Dante’s “Purgatorio”, meaning “then he hid in the fire that refines them.” According to Sussex University Professor Cedric Watt’s explication of these last ten lines, “the ‘he’ is Arnaut Daniel, the medieval Provençal poet. He has just told Dante that he repents the sins of his past and looks forward to the heaven that he will eventually reach after suffering the purgatorial flames.” The following line “ Quando fiam uti chelidon ” from the anonymous Latin poem ''Pervigilium Veneris” means “when shall I be like the swallow.” In this poem, “the raped Philomela has undergone a healing metamorphosis into a songbird, making her complaints sound as joyous as a song. The next line, “O swallow swallow,” refers to Alfred Tennyson’s lyric in “The Princess” in which “a swallow is flying south to warm lands, away from the earthbound poet.” Finally, “ Le Prince d'Aquitaine à la tour abolie ,” a line from Nerval’s ‘El Desdichado’, meaning “The Unfortunate or Disinherited Man,” a French poem with a Spanish title, means “The Prince of Aquitaine at the ruined tower.” According to Watts, “the gist of the poem is: ‘I’ve been through hell, but I’ve survived to tell the tale, I’ve known loss and grief, but I’ve had my dreams and can make songs of my experiences.” Independently, each of these lines refer back to larger poetic works, and thus refer back to the traditional literary structures, styles, and modes of human experience embedded in and advanced by these works. However, by separating these fragments from their larger poetic totality and compiling them together in a new structure, Eliot alienates them from the poetic works and traditional literary structures and meanings to which they pertain. By alienating them from their original works and compiling them together, Eliot also re-appropriates them in a creative way. Through this creative re-appropriation or repetition of these fragments, they ultimately produce a new narrative, one that neither of them originally pertained to or advanced. Essentially, this new narrative suggests that repentance or self-forgiveness will enable the grieving post-war civilization to transcend its own purgatorial limbo toward a kind of recuperation of meaningful doing and action in modern life. Because this narrative reflects and diagnoses the post-war human experience, Eliot’s creative repetition of past literary fragments enables him to meaningfully describe and reflect human life as it is, thus re-invigorating literature’s capacity to invoke human experience overall. As a result, the fragments “shore against his ruins,” or act as a buffer against his destruction as a poet in a dying artistic field and as a modern individual confronted with the meaninglessness of the traditional values and certainties implicit in socio-cultural norms. Eliot concludes the section ironically with “Why then Ile fit you, Hieronymo’s mad againe,” the subtitle of Thomas Kyd’s play The Spanish Tragedy meaning “why then I’ll fix it for you, Hieronymo’s mad again.” While the line acknowledges that his atypical poetic structure may induce readers to think him insane, Eliot’s “I’ll fix it for you” reaffirms us of his craftsmanship and ability to “fix” literature’s inability to capture and resolve modern society’s post-war sense of meaninglessness. The poem ends with the repetition of “shantih, shantih, shantih”, a Sanskrit word meaning peace or inner peace prayed at the end of the Upanishad in the Hindu religion. Pointing ambiguously toward Eastern modes of spirituality, Eliot leaves us to “fish” our own individual meaning out of his fragments. Because the poem incorporates a creative repetition of past canonical forms of literature toward developing a form that can meaningfully reflect the modern human experience, it attempts to restructure how “one” relates to and understands these canonical forms of literature. Instead of writings that can no longer invoke what it means to be human, Eliot’s fragmentation gives them a new applicability to the modern experience. Thus, Eliot’s creative repetition of how one related to canonical works makes those works newly meaningful to the post-war reader as a compilation of fragments, both within the poem (i.e., as resolving the poem’s central conflict) and as suggesting ways to transcend their own confrontation with meaningless and profound boredom in post-war society. Similarly, by creatively repeating and reassembling aspects of what one did in the pre-pandemic world with what one did during quarantine, we compile together a structure akin to Eliot’s fragmentation. Assembling these fragments of “oneness” in a new montage that authentically expresses how one, and how we each individually, relate to the world in the context of enormous crises, anxiety, and change, we can enact new possibilities of being and acting that are meaningful to us and, thus, shore against our own ruinous experiences with profound boredom and meaninglessness. While Heidegger’s “moment of vision” describes the instance we are disclosed to our own freedom to choose which selves we want to enact, Eliot’s fragmentation demonstrates how we can enact that self through meaningful repetitions of our oneness. While Caballero experienced a meaninglessness rehearsal of oneness in his return to the pre-pandemic work-life structure because it invoked a self that he no longer felt or understood himself to be, by quitting his job to pursue remote working options, he creatively assembles a performance of pre-pandemic one-ness (in that he continues to work) with a performance of quarantine one-ness (in that he begins to work virtually and make time for his other interests and passions) that reflects how he understands himself to “be” in the world. As such, the creative repetition of past possibilities seems to offer a productive solution to the post-pandemic phenomenon of profound boredom. As we each reevaluate our current rehearsal of oneness, quit our jobs, change our career or academic tracks, tighten our in-person social circles, restructure our relationships, and travel the world in pursuit of new possibilities for meaningful doing and action, we create new ways of understanding ourselves and relating to the world in general. Perhaps, a new performance of one-ness may be gradually unfolding before us. References Heidegger, Martin, and Edward Robinson. “Chapter 4, The They.” Essay. In Being and Time , translated by John Macquarrie, 149–68. Harper Perennial, n.d. Heidegger, Martin, William McNeill, and Nicholas Walker. Essay. In The Fundamental Concepts of Metaphysics: World, Finitude, Solitude , 136–52. Bloomington, Indianapolis, Indiana: Indiana University Press, 1995. Wrathall, Mark A. “Everydayness and The One.” Essay. In How to Read Heidegger , 47–70. New York, NY: W. W. Norton, 2006. Chapters 5-6 Eliot, T. S. “The Waste Land.” Poetry Foundation. Poetry Foundation. Accessed February 12, 2022. https://www.poetryfoundation.org/poems/47311/the-waste-land . Watts, Cedric. “The Last Ten and A Half Lines of the Waste Land.” The Last Ten and a Half Lines of the Wasteland . Poets.org.Academy of American Poets, May 20, 2004. https://poets.org/text/brief-guide-modernism . Hsu, Andrea. “As the Pandemic Recedes, Millions of Workers Are Saying 'I Quit'.” NPR , NPR, 24 June 2021. Bruner, Raisa. “Why Young People Are Quitting Jobs-and Not Going Back.” Time, Time, 29 Oct. 2021. Fontinelle, Amy. “The Great Resignation.” Investopedia. Investopedia, May 5, 2022. https://www.investopedia.com/the-great-resignation-5199074 .

Does Social Media Strategy Help Politicians Stay in Power? Comparing the Cases of Modi and Bolsonaro Wendy Wang Author Aimee Zheng Kate Tobin Editors Introduction While social media was initially touted as a force for good, such as its use during the Arab Spring’s pro-democracy protests in 2011, recently, major platforms have faced criticism for failing to sufficiently combat political disinformation and election interference. After all, one of the major controversies during the 2016 American presidential elections was the revelation of Russian meddling attempts on social media. Therefore, this paper will investigate the dynamics between social media strategies and political success, while also examining its larger effects on public discourse, voters, and political communication. It seeks to understand how leaders employ the digital sphere to gain and remain in power, with a focus specifically on populist leaders in semi-democratic states, namely Narendra Modi in India and Jair Bolsonaro in Brazil. The relative similarity of the regimes in which Modi and Bolsonaro rose to power enables a more precise isolation of the factors that have contributed to their distinct political outcomes. This comparative analysis aims to offer insight into the evolution of social media's impact on politics, and its implications for the resilience of populist leaders in semi-democratic regimes. Analyzing Politicians’ Relationship with Mass Media in Semi-Democratic and Democratic Countries While social media platforms were originally touted as a potential force for positive political change, such as during the Arab Spring, when they were used to coordinate and mobilize citizens to protest against authoritarian regimes,his quickly shifted when non-democratic actors realized they could also utilize social media just as effectively as pro-democracy activists to sow discord. In the case of the Arab spring, governments tracked protestors online, including those overseas, and attempted to silence them through relational repression, or threatening to hurt their relatives at home. Governments also pass legislation under the pretense of making the internet “safer,” yet in reality, such measures are often utilized to silence dissent. For example, in 2020, Turkey passed a law that allegedly aimed to curb “immoral” content.this legislation, however, also granted the Turkish government the right to remove content from platforms, and allowed for the storage of Turkish users’ data within the country. In 2022, Turkish President Recep Tayyip Erdoğan went even further, passing disinformation legislation that punished those who spread news that was inaccurate with up to five years in prison. Right before the 2023 parliamentary and presidential elections, Erdoğan then forced X (formerly Twitter) to ban access to several local opposition public figures’ accounts. Even before the popularization of social media, politicians placed significant emphasis on cultivating their public image to maximize electability, and have had to adapt as new mediums that have arisen. Politicians who quickly adapt to new forms of media have always gained an advantage. One of the most famous examples of this is the 1960 Kennedy-Nixon presidential debate, which was the first televised debate between American presidential candidates. Reportedly, viewers of the debate believed Kennedy won, while radio listeners tended to believe that Nixon performed better – a phenomenon that scholars have since replicated in experiments. Thus, it is possible that Kennedy’s adeptness in harnessing this newfangled technology just as it became commonly used among the general electorate contributed to his electoral victory. Politicians in today’s current political climate have similarly adapted to new mediums – notably social media – to gain electoral advantages. During the 2016 presidential elections, Donald Trump’s campaign benefited significantly from utilizing the expertise and staff of technology firms. S This advantage stemmed from the active involvement of social media companies such as Facebook, Twitter, and Google which initially courted political campaigns by providing advice on leveraging their platforms for digital advertising. This assistance enabled Trump’s campaign to target key demographic groups, swing voters, and supporters online, likely mitigating the Trump campaign’s relative staffing disadvantage.. In contrast, Clinton’s more well-funded and staffed campaign meant that it crafted most of its ads in-house, and treated the technology companies more like vendors instead of consultants. Even without the help of tech companies, politicians are recognizing the importance of utilizing data to effectively target key voters on platforms. For example, in the UK, Vote Leave, which campaigned for the UK to leave the EU ahead of the 2016 Brexit referendum, utilized personal data to target specific demographics and test which narratives voters were the most responsive to. The utilization of citizens’ data to more accurately target them with political messaging has, however, attracted controversy. This public controversy that such microtargeting attracts is exemplified by the Cambridge Analytica scandal in 2018, which revealed that the company collected the information of over 50 million Facebook users without their consent through a Facebook app that misleadingly told users that their information would be used for academic purposes. That data was ultimately used by the Trump campaign to precisely target voters, although whether this method was truly effective at swaying voters is uncertain.,, Interestingly, Trump had significantly more engagement with his social media content, following the old adage of “all press is good press,” which allowed him to overcome his disadvantage in traditional campaigning techniques. In particular, his provocative tweets received significant organic coverage from mainstream media, which allowed him to spend less on traditional media advertising. Additionally, Trump’s combative approach to tweeting proved effective, as an analysis of tweets before the 2016 election found that tweets about Clinton tended to be unfavorable.furthermore, her most popular tweets primarily focused on criticizing Trump rather than promoting her own candidacy. This is potentially reflective of a larger bias among social media algorithms, which have found that negative content is more likely to go viral. Therefore, it is unsurprising that in the 2016 election, negative content gained the most traction, reflecting the importance of social media in allowing politicians to personalize their appeals to voters. In recent decades, politicians have increasingly personalized their media strategies, conducting campaigns that encompass both their political agenda and personal brand. Media coverage not only focuses on the politician's policies and leadership capabilities, but also on their private life. While this behind-the-scenes content is, in general, generally just as polished and curated as performances on the campaign trail, by claiming to give voters a peek into their private life and personality, this content seeks to make the candidate more relatable and endearing to voters. Consequently, Trump’s openness about his extreme views and his use of colloquial language added an air of authenticity to his social media content that enhanced his populist claim of being of the masses. Trump’s social media presence, in particular, thus underscores how the advent of social media has opened up new avenues and methods through which politicians cultivate authenticity in pursuit of electoral success. By removing barriers between politicians and voters, social media allows politicians to communicate more directly with the electorate in an intimate and personal manner. This communication feels even more intimate now that social media has become synonymous with authenticity. Moreover, social media platforms provide politicians with the opportunity to strategically showcase their personality. Trump, in choosing to disregard basic grammatical and spelling rules and post rambling tweets, employed indexical signs, or signals alluding to his persona, to cultivate an appearance of authenticity. These distinctive features of his social media content seem to indicate that his tweets are a truer reflection of his personality relative to other politicians (such as Hilary Clinton) who sign off their tweets with their initials. Trump’s success also highlights how populist leaders are particularly well-positioned to benefit from the digitalization of the public sphere and the growing forms of direct communication between politicians and voters. The establishment of closer bonds between politicians and their support base make it easier for anti-establishment populists’ to fuel distrust in mainstream media and present alternative versions of facts. Consequently, populist and authoritarian leaders utilize social media to directly appeal to the public, bypassing critical voices like investigative journalists, thereby facilitating the spread of misleading or false information, as demonstrated by Donald Trump. Background on Modi and Bolsonaro Modi has been India’s Prime Minister since 2014, when his party, the Hindu nationalist Bharatiya Janata Party (BJP) won a landslide majority in India’s parliament. He is currently serving his second term as prime minister, following the BJP’s success in the 2019 elections. As a boy, Modi joined the Hindu nationalist paramilitary organization ‘Rashtriya Swayamsevak Sangh’ (“National Volunteer Association,” or RSS), which heavily shaped his life and worldview. The RSS is a far-right Hindu nationalist group advocating for the establishment of a purely Hindu nation. Their vision leaves no room for India’s Muslim minority, leading to frequent accusations of inciting hatred towards Muslims. Modi dedicated almost 3 decades to organizing on behalf of the RSS, which is closely associated with the BJP. This ultimately played a significant role in propelling Modi to the forefront of the BJP’s electoral campaigns. He eventually became a BJP party spokesperson, establishing his public presence. He was subsequently appointed as the chief minister of Gujarat in 2001, during which time the state’s economy grew rapidly. India’s media landscape is fairly varied, as popular sources of news include everything from legacy publications such as The Times of India , to broadcasters such as NDTV, and BBC News, which tend to be relatively unbiased. Over 70 percent of Indian consumers get their news from their phones, and YouTube is a particular popular platform for accessing news. Notably, Indians are particularly interested in hyperlocal news, which they obtain through small, local publications and WhatsApp groups. That being said, India is one of the most dangerous places to be a journalist, and, in recent years, press freedom has declined as Modi and the BJP have increasingly attacked the freedoms of speech, judiciary, religion, and protest. Because of this, journalists often shy away from criticizing the government or reporting critically on the government out of fear of retribution.,, Jair Bolsonaro was the president of Brazil from 2019-2023, who after leaving the military, was elected to Rio de Janeiro’s city council, and then later represented the city in Brazil’s Chamber of Deputies. He gained notoriety for his extremely conservative social views, and numerous sexist, homophobic, and racist comments. He also exhibited nostalgia for the previous dictatorship, a sentiment that persisted throughout his campaign and presidency. In 2018, amid widespread discontent following simultaneous economic, political, and social crises due to major corruption scandals, Bolsonaro won the presidency. However, his presidency was plagued by numerous controversies, including his deforestation of the Amazon and most notably, his poor handling of the COVID-19 crisis. During the pandemic, he seemingly expressed indifference to the deaths of hundreds of thousands of Brazilians due to his lax COVID-19 policies, mocked those with severe cases of COVID-19, touted unproven drugs, and refused to wear a mask or get the vaccine. Furthermore, after losing his bid for reelection in the fall of 2022 and sowing distrust in the electoral system in the months leading up to the election, on January 8, 2023, Bolsonaro’s supporters attacked numerous Brazilian government buildings in protest of the results, an event that parallels the events in The United States on January 6, 2021. Brazil’s media landscape is dominated by several large private media conglomerates, including Globo, Record, SBT, Bandeirantes, and Folha, which are owned by politically connected individuals who distort coverage favorably. Similar to India, Brazilians also increasingly access news through their smartphones, and especially through YouTube, WhatsApp, and Facebook. Disinformation, especially in political discourse and online, continues to be a problem, although it was especially severe under President Bolsonaro, who frequently attacked the press. Folha, one of the major media conglomerates, even pulled its content from Facebook from 2018-2021 over fake news concerns., Moreover, Brazil is also one of the most dangerous places to be a journalist, as journalists have been killed by criminal groups, especially when reporting on Amazon-related environmental issues. Analysis Both Modi and Bolsonaro have taken fairly personalized approaches to social media. However, while Bolsonaro adopted this approach largely out of necessity, Modi’s decision to do so was a calculated one, as part of his general personalization of Indian politics. Thus, while Modi’s success mirrors those of leaders such as Erdoğan, who actively distort social media, in favor of their own regimes, through laws and the parliament, Bolsonaro appears to more closely resemble less successful populists like Trump. In Brazil, historically, airtime on radio and TV was one of the decisive factors in the election. This changed with Bolsonaro’s election, however, as he had less than 1 percent of all airtime. His ability to capture voters heavily active on social media and his ability to dominate conversations on those platforms helped him mitigate this disadvantage. Bolsonaro upended this traditional advantage through his personalized approach to social media, and especially his activity on the extremely popular WhatsApp. Similar to Trump, his lack of resources for a full-fledged marketing team turned out to be an advantage. Bolsonaro allegedly personally managed his WhatsApp account, and would heavily record his events, which his staff would then forward to supporters through his massive network of WhatsApp groups. Similar to how Kennedy leveraged televised debates to garner voter support, Bolsonaro’s “guerrilla marketing” capitalized on social media, proving particularly effective among its users. Consequently, it is unsurprising that Bolsonaro supporters had the highest rate of social media usage among supporters of all the major presidential candidates. However, it is possible that the personalized nature of Bolsanaro’s social media strategy arose from insecurity and personal hypersensitivity to criticism than from deliberate strategy. At one point, Bolsonaro posted a whole video on social media just to deny reports that he went to the hospital because of illness, instead claiming that he was at the hospital for “personal reasons.” Furthermore, during his 2018 campaign, there were strong accusations and evidence that he had encouraged supporters to pay digital marketing firms to flood WhatsApp with thousands of attack ads, implying that his own campaign team did not have the funds to do so. Consequently, Bolsonaro also resembled Trump in how he overcame a traditional media disadvantage through utilizing free press from posting inflammatory statements on social media that led to free, organic coverage in the mainstream media. Similar to Trump, Bolsonaro’s tendency to make extremely “politically incorrect” and offensive statements was endearing to supporters, who viewed his bluntness as a signal of authenticity. Modi was an early adopter of X, using it to interact with other politicians, convey his policy objectives, and notably, integrate social media into his campaign strategy well before the 2014 elections. But unlike Bolsonaro, Modi’s decision to do so was not out of lack of access to other forms of political messaging. Rather, this was the product of an extensive in-house public relations team and public relations firms that decided to intentionally cultivate an image of Modi as accessible to the people. Therefore,Modi’s ability to cultivate a social media presence that exudes authenticity authentically , especially during the 2019 elections, underscores his success at positioning himself at the center of the BJP’s political strategy. Notably, in both India and Brazil, Bolsonaro and Modi took advantage of WhatsApp’s popularity to coordinate campaigns and spread misinformation through a network of group chats that were extremely difficult to shut down. Not only does WhatsApp’s decentralized nature allow new groups to pop up easily after groups are shut down, but the app’s end-to-end encryption also makes it hard to monitor and identify the spread of misinformation within these groups. In India, the ruling BJP party pioneered the use of social media ahead of the 2019 elections, the first national election where a substantial proportion of the population, around 45 percent, had smartphones, compared to around merely 15 percent in 2014. The BJP effectively utilized group chats in WhatsApp, a platform which the vast majority of Indian smartphone users have downloaded, to target and spread regionally specific messaging, mirroring Trump campaign’s use of Facebook data to similarly micro-target key demographics. Specifically, in India, politicians relied on a network of hundreds of WhatsApp groups, each based in different regions, to coordinate and convey campaign messaging and logistics to supporters. Modi and his staff tailored tweets and messaging strategies, which were then shared with a network of hundreds of thousands of volunteers, who spread the messaging by the millions. In these group chats, the BJP also pushes rhetoric and disinformation that aimed to inflame religious tensions and stoke fear of the Muslim minority among India's majority Hindu population. Examples of disinformation included pornographic deepfakes of reporters critical of Modi’s role in anti-Muslim riots as governor of Gujarat, as well as less directly insidious falsehoods, such as inflated crowds sizes at his rallies., Similarly, in Brazil, where WhatsApp is one of the primary sources of information for its 120 million local users, Bolsonaro supporters paid digital advertising firms to run attack ads in various WhatsApp groups. Here, Bolsonaro’s supporters exploited the intimacy of these groups, similar to Modi and the BJP, enabling them to hyper-specifically target various groups, often with disinformation that spread rapidly and extensively. However, in Brazil, Bolsonaro’s digital content mostly preyed on the fears of those with socially conservative views and dissatisfaction with the establishment. Therefore, prime examples of popular misinformation on WhatsApp include a deep-faked image of former president Dilma Roussef next to Fidel Castro, and a picture allegedly depicting two male employees from Globo, one of the major media companies in Brazil, kissing, which was actually taken at a pride march in New York. Bolsonaro’s network of WhatsApp groups also shared the social media of those critical of Bolsonaro and coordinated mass campaigns attacking critics. More broadly, while both Modi and Bolsonaro rely on WhatsApp as the primary platform for disseminating election-related disinformation, they have extended their operations to other platforms as well. Bolsonaro exploited the popularity of online, partisan sites and social media as sources of news to spread information. A study of the Brazilian 2022 elections found that those who joined political groups on messaging apps such as WhatsApp and used partisan, online sites and social media as their sources of news were more likely to believe in election related-misinformation. Furthermore, every week Bolsonaro live streamed on YouTube, aiming to directly deliver disinformation to his supporters. In these streams, he primarily attempted to discredit the mainstream media, claiming to speak the authentic truth, despite primarily propagating borderline propaganda. Yet notably, unlike Modi, most of his attempts to reduce the independence of the press and institutions was primarily through rhetoric rather than direct suppression and censorship. Modi’s efforts to exploit social media to silence dissent were more extensive and refined, and contributed to his ability to concentrate power in a way Bolsonaro was unable to. Furthermore, he continues to actively suppresses critical content, recently banning access to a BBC documentary investigating his role in a deadly 2002 riot while he was Governor of Gujarat. Modi also weaponizes the regulation of platforms to coerce them into complying with content takedown requests. In 2021, Modi implemented new IT rules under the pretense of combating misinformation. However, these rules, which forced social media companies to hand over user data, take down any content the government deems “restricted,” and hire a local Chief Compliance Officer, seemed to be designed to facilitate the government’s ability to coerce platforms to remove unfavorable content. Under these new rules, the government threatened to sue X and even raided its Indian offices after it labeled BJP politicians’ tweets as manipulated media. Furthermore, Modi has been unafraid to go after major tech companies, and has exploited their fears of being cut off from the massive Indian market. Modi has also pressured X to block access in India to the accounts of Sikh activists and those who are critical of Modi. Modi has not hesitated to punish platforms who resist his demands, and has threatened to jail employees of companies such as Facebook for noncompliance with censorship requests. Furthermore, platforms have also found themselves caught up in the backlash after geopolitical spats. In the wake of deadly clashes at the India-China border in 2020, Modi banned TikTok. Notably, both Modi and Bolsonaro have employed social media platforms to spread false information that contributes to and exacerbates platform violence outside of elections. However, Modi is much more effective at intimidating potential dissenters and translating his network of supporters into tangible organized acts of violence. Modi’s ability to incite violence and his exploitation of and leaning into Hindu nationalism through the spreading of fake news about Muslims or lower castes has inflamed tensions and motivated real-life mob violence and hate crimes. Modi, however, has consistently refused to acknowledge acts of Hindu nationalist mob violence., Bolsonaro intentionally spread false rumors about voter fraud and irregularities in Brazil’s digitalized voting system. These actions resulted in him him having to participate in a runoff in 2018 and ultimately to his electoral loss in 2022. He spread these lies through interviews with traditional media and through directly appealing to users with disinformation on online platforms, for example, through his weekly YouTube live streams. These disinformation campaigns culminated in the January 8th riots in 2023. Unlike Modi, who was running for re-election, Bolsonaro’s social media strategy mirrored Trump’s in that his spreading of misinformation likely came from a place of weakness. Leading up to the presidential election in both instances, Bolsonaro and Trump both had seemingly long odds. Additionally, both of their social media strategies were influenced by their campaign’s limited resources. Therefore, it is likely that Bolsonaro’s dissemination of disinformation regarding electoral fraud in anticipation of the 2018 election stemmed from a sense of insecurity. After all, if Bolsonaro were genuinely confident he was going to win the election, he would not have prepared an explanation for a potential loss before the election even happened. Bolsonaro’s encouragement of violence following the 2022 elections also likely came from feelings of vulnerability and anger at the perceived humiliation of not winning the election. Contrary to Modi, however, outside of social media platforms, Bolsonaro’s network of supporters are less organized, and therefore, have engaged in less acts of violence and physical intimidation. Even the largest violent outbreak under Bolsonaro, the January 8th protests, were nowhere near as deadly or violent as Modi’s army was, as it was more of a last-ditch attempt at holding onto power rather than an intentional, organized, than a demonstration of strength., Similar to Trump, the January 8th riots in Brazil can be interpreted as a product of Bolsonaro lashing out due to a feeling of powerlessness and refusal to accept what he perceived as the embarrassment of not winning the election. Yet, despite the importance and widespread use of social media in the Bolsonaro’s campaigns, Bolsonaro was ultimately unable to retain power due to the differences in political structure between India and Brazil. Brazil has a federal presidential republic, meaning that similar to the US, power is split among the different executive, legislative, and judicial branches, and thus the president inherently has much less authority than the prime minister in India. Because of this, the other branches of government were able to check Bolsonaro’s authoritarian impulses. Specifically, the Brazilian Supreme Court, with its criminal jurisdiction over all public officials, including the president, as well as the Congress’ refusal to endorse Bolsonaro’s assault on judicial institutions, played significant roles in restraining him. Therefore, the judicial branch, in particular, was able to nullify Bolsonaro’s worst attempts at censorship or influencing social media to portray him more favorably. For example, in 2021, when Bolsonaro attempted to ban social media platforms from taking down certain types of misinformation, including misinformation about COVID-19, the Supreme Court and Brazilian Senate nullified the legislation. When Bolsonaro supporters refused to accept his defeat, one of Brazil’s Supreme Court justices ordered the accounts of some of the loudest protesters suspended. As a result of the January 8, 2023 riots, during which Bolsonaro supporters stormed government buildings in protest of the election results, the Superior Electoral Court banned Bolsonaro from running for election again until 2030. Therefore, Bolsonaro's political downfall demonstrates the limitations of social media propaganda when faced with strong institutional checks and balances. In contrast, India is a federal parliamentary republic, which generally leads to much more powerful heads of government, since the prime minister is determined by the majority coalition in the legislative branch. Thus, unlike in Brazil, in this political system, the executive branch inherently has influence over the legislative branch, which enabled Modi to shape government opinion much more rapidly. Therefore, while the combination of the independent judiciary and congress restrained Bolsonaro, Modi has been able to successfully erode the independence of government institutions, including the judiciary, which he has weaponized against opposition politicians through promoting friendly judges and punishing defiant ones. Thus, Modi bears similarity to Viktor Orban in Hungary, who was able to quickly weaken independent institutions due to his unified parliamentary supermajority. Furthermore, he also bears resemblance to Erdoğan, who held a 2017 referendum that amended Turkey’s constitution from a parliamentary to a presidential system. Erdoğan’s presidentialization of a parliamentary system allowed him to consolidate the powers of the leaders in a presidential and parliamentary system into one role while reducing the checks on these powers. Essentially, Erdoğan had centered his party's campaign for seats around his personal appeal, instead of the party's Similarly, Modi’s rise to power in 2014 diverged from historical norms in that, unusually for a parliamentary system, the BJP’s campaign centered around Modi’s appeal as prime minister. This presidentialization of parliamentary elections foreshadowed his ensuing consolidation of power. It is also important to consider how each leader fits into the broader historical context of their respective countries. Most importantly, Modi's social media disinformation campaigns are able to exploit tensions between different ethnic groups that have been present since India gained independence from the British. While Modi has increasingly centralized power under his leadership, his actions must be interpreted and understood in the context of his longstanding commitment to creating a Hindu nation, which has motivated him since he first joined the RSS as a youth. Modi’s actions and ideas align with a larger movement that has been in the works for far longer than he has been in power. Therefore, to understand Modi’s underlying motives, it is important to keep in mind historical events such as the bloody partition of the Indian subcontinent and the history of discrimination against Muslims in India. Since the chaotic 1947 partition of the Indian subcontinent into India and Pakistan, which was done largely along religious lines and led to the death of approximately a million people, Muslims in India have continued to face discrimination. Modi has regularly deployed internet blackouts to silence dissent in the Muslim-majority federally administered Jammu and Kashmir states, which, in 2022, had the most internet shutdowns globally. Under Modi, anti-Muslim lynchings and hate crimes have risen rapidly, and Modi and the BJP have encouraged the spread of Islamaphobic conspiracy theories, such as the COVID-19 pandemic being a “Muslim plot.” Therefore, Modi’s ability to capitalize on the significant issue of religious divisions and focus his social media disinformation efforts around this specific issue, in a manner Bolsonaro could not, have contributed to his enduring resilience. In contrast, Bolsonaro relied on a broader variety of societal tensions,and it is probable that his inability to channel his efforts around a single issue contributed to his ultimate downfall. Bolsonaro positioned himself more generally as a populist outsider who was a break from the establishment. He fed on Brazilians general sense of discontent stemming from general political and economic turmoil to rise to power. However, once he was in office, despite attempting to frame himself as “anti establishment” and railing against “mainstream media,” he could no longer be considered as an outsider. Moreover, unlike Modi, who had substantial governing experience and political organizing experience from his time as governor of Gujarat and his work volunteering for the RSS, Bolsonaro’s status as a relative novice, which was especially evident during his poor management of crises like the pandemic. Before becoming president, Bolsonaro had only served as a legislator, and had limited connections within government, having spent most of his previous political career at the fringes of governmental circles. Furthermore, Modi’s close ties and history with the BJP and RSS naturally provided him with a significantly stronger and more entrenched base of support, forged over decades of advancement through the party ranks. In contrast, Bolsonaro’s frequent switches between political parties, both over the course of his career and even during his presidency, left him isolated and unable to secure substantial support in Congress. Therefore, Bolsonaro’s loss suggests that while social media may have propelled his unlikely presidency, it was not sufficient to maintain his grip on power, particularly coupled with his relative political inexperience. Furthermore, the resilience and independence of civil society and press in Brazil compared to India also helped curb Bolsonaro’s attempts to consolidate his power. For example, as soon as Bolsonaro was elected, protests broke out in several cities. Despite his initial threats to jail left-wing protesters, these threats proved empty as mass protests continued to occur during his presidency., Furthermore, interestingly, Bolsonaro’s attacks on journalists, instead of having a demoralizing effect, actually invigorated journalists, strengthening their resolve and resilience. In contrast, under Modi, the independence of the Indian press has been substantially eroded. The collective efforts of Modi’s online army of trolls, which issues death and rape threats, along with the BJP’s direct intimidation of critical journalists, and the pressuring of media companies to fire or punish disobedient reporters, have effectively coereced many journalists into self-censorship due fear of retribution. For example, in 2018, the gang-rape and murder of an eight-year-old Muslim girl who was kidnapped and tortured for days by a group of Hindu men only gained national coverage after foreign publications picked the story up. Even so, coverage was limited, especially since the BJP organized a rally in support of the accused rapists. Conclusion While both Modi and Bolsonaro disseminate fake news on social media to circumvent traditional media barriers and communicate directly with the electorate, their attempts to control the narrative stem from different motivations. Modi operates from a position of strength,silencing dissenting opinions and consolidating power across the state, whereas Bolsonaro operates from a position of weakness, striving to preserve his tenuous grip on power. Additionally, it appears that while social media strategy played a substantial role in both Bolsonaro and Modi’s rise, it was ultimately external factors specific to their broader context, namely the strength of political institutions and social cleavages that facilitated one’s success over the other. Therefore, while social media plays an important role in these leader’s roads to power, it cannot overcome certain existing factors. References Arias-Maldonado, Manuel Jesus. "Rethinking Populism in the Digital Age: Social Networks, Political Affects and Post-Truth Democracies." (2017). Bakir, Vian, and Andrew McStay. "Profiling, Targeting and the Increasing Optimisation of Emotional Life." In Optimising Emotions, Incubating Falsehoods: How to Protect the Global Civic Body from Disinformation and Misinformation, (Cham: Springer International Publishing, 2023): 139-172. Bansal, Varsha. “India’s Government Wants Total Control of the Internet.” WIRED, February 13, 2023. https://www.wired.com/story/indias-government-wants-total-control-of-the-internet/. Barrett, Bridget, and Daniel Kreiss. "Platform transience: changes in Facebook's policies, procedures, and affordances in global electoral politics." Internet Policy Review 8, no. 4 (2019): 1-22. BBC News. “Asifa Bano: The Child Rape and Murder That Has Kashmir on Edge.” BBC News, April 11, 2018. https://www.bbc.com/news/world-asia-india-43722714. Benkler, Yochai, Robert Farris, and Hal Roberts. Network Propaganda, (New York: Oxford University Publishing, 2018) Blumler, Jay and Dennis Kavanagh “The third age of political communication: Influences and fettures.” Political Communication 16 (1999): 209–230. Boulos, Guilherme. “Armed Bolsonaro Supporters Are Threatening Their Opponents. I Was One of Them.” Time, September 16, 2022. https://time.com/6214070/bolsonaro-political-violence-brazil-election/. Bulovsky, A. “Authoritarian communication on social media: The relationship between democracy and leaders’ digital communicative practices.” International Communication Gazette, 81 no. 1 (2019): 20-45. Brown, Deborah. “Social Media Platforms Are Failing Brazil’s Voters.” Human Rights Watch, October 28, 2022. https://www .hrw.org/news/2022/10/28/social-media-platforms-are-failing-brazils-voters. Butler, Daren, and Ali Kucukgocmen. “Turkey Approves Social Media Law Critics Say Will Silence Dissent.” Reuters, July 29, 2020. https://www.reuters.com/article/uk-turkey-security-socialmedia-idUKKCN24U0ET/ . Camila. “Folha Volta a Publicar Conteúdo No Facebook.” Folha de S.Paulo , July 5, 2021. https://www1.folha.uol.com.br/poder/2021/07/folha-volta-a-publicar-conteudo-no-facebook.shtm l. Carro, Rodrigo. “Brazil.” Reuters Institute for the Study of Journalism. June 15, 2022. https://reutersinstitute.politics.ox.ac.uk/digital-news-report/2022/brazil . Chen, Angela, and Alessandra Potenza. “Cambridge Analytica’s Facebook Data Abuse Shouldn’t Get Credit for Trump.” The Verge, March 20, 2018. https://www.theverge.com/2018/3/20/17138854/cambridge-analytica-facebook-data-trump-camp aign-psychographic-microtargeting . Christ, Kiernan. “Public Opinion, Criminal Procedures, and Legislative Shields: How Supreme Court Judges Have Checked President Jair Bolsonaro in Brazil.” Georgetown Journal of International Affairs, April 25, 2022. https://gjia.georgetown.edu/2022/04/25/public-opinion-criminal-procedures-and-legislative-shiel ds-how-supreme-court-judges-have-checked-president-jair-bolsonaro-in-brazil/. Committee to Protect Journalists. “Haiti Joins List of Countries Where Killers of Journalists Most Likely to Go Unpunished,” October 31, 2023. https://cpj.org/reports/2023/10/haiti-joins-list-of-countries-where-killers-of-journalists-most-likel y-to-go-unpunished/. Coşkun, Alper. “Turkey’s New Disinformation Law Affects More Than Meets the Eye.” Carnegie Endowment for International Peace , December 19, 2022. https://carnegieendowment.org/2022/12/19/turkey-s-new-disinformation-law-affects-more-than- meets-eye-pub-88633 Deegan-Krause, Kevin, Kurt Weyland, and Raúl Madrid. "Donald trump and the lessons of east-central European populism." When democracy Trumps populism (2019): 60-83. Denbeaux, M., & Crawley, D. (2023). “The January 6 Insurrectionists: Who They Are and What They Did.” Seton Hall Law School Legal Studies Research (2023). Di Carlo, Josnei, and João Kamradt. “Bolsonaro e a Cultura Do Politicamente Incorreto Na Política Brasileira.” Teoria e Cultura 13, no. 2 (December 20, 2018). https://doi.org/10.34019/2318-101X.2018.v13.12431. Di Nubila, Karina, Carlos A. Ballesteros, Herencia, Dunia Etura, and Virginia Martín-Jiménez. "Technopopulism and Politainment in Brazil: Bolsonaro Government's Weekly YouTube Broadcasts." Media and Communication 11, no. 2 (2023): 137-147. Druckman, James N. "The power of television images: The first Kennedy‐Nixon debate revisited." Journal of Politics 65, no. 2 (2003): 559-571. Dumitrica, Delia and Georgia Gaden. “The ‘Real Deal’: Strategic Authenticity, Politics and Social Media,” 2015. https://firstmonday.org/ojs/index.php/fm/article/download/4985/4197. Earl, Jennifer, Thomas V. Maher, and Jennifer Pan. "The digital repression of social movements, protest, and activism: A synthetic review." Science Advances 8, no. 10 (2022): 1-22. Ellis-Petersen, Hannah. “India Invokes Emergency Laws to Ban BBC Modi Documentary.” The Guardian, January 23, 2023. https://www.theguardian.com/world/2023/jan/23/india-emergency-laws-to-ban-bbc-narendra-mo di-documentary. Farias, Deborah Barros Leal, Guilherme Casarões, and David Magalhães. "Radical right populism and the politics of cruelty: The case of COVID-19 in Brazil under President Bolsonaro." Global Studies Quarterly 2, no. 2 (2022): Ferris, Nick. “What four years of ‘non-existent’ climate action has done to Brazil”. Energy Monitor, 29 Sep. 2022. Frayer, Lauren. “How India Is Confronting Disinformation On Social Media Ahead Of Elections.” NPR, April 22, 2021. https://www.npr.org/2021/04/22/989938941/how-india-is-confronting-disinformation-on-social- media-ahead-of-elections . Freedom House. “Freedom in the World 2014.” Accessed December 1, 2023. https://freedomhouse.org/sites/default/files/2020-02/Freedom_in_the_World_2014_complete_bo ok.pdf Freedom House. “Freedom in the World 2018: Brazil.” Accessed December 1, 2023. https://freedomhouse.org/country/brazil/freedom-world/2019. Freedom House. “Freedom in the World 2023: Brazil.” Accessed December 1, 2023. https://freedomhouse.org/country/brazil/freedom-world/2023 . Freedom House. “Freedom in the World 2023: India.” Accessed December 1, 2023. https://freedomhouse.org/country/india/freedom-world/2023 Freedom House.“Freedom on the Net 2021: Thailand.” Accessed December 1, 2023. https://freedomhouse.org/country/thailand/freedom-net/2021. G1. “Datafolha: Quantos Eleitores de Cada Candidato Usam Redes Sociais, Leem e Compartilham Notícias Sobre Política.” G1. March 10, 2018. https://g1.globo.com/politica/eleicoes/2018/eleicao-em-numeros/noticia/2018/10/03/datafolha-quantos-eleitores-de-cada-candidato-usam-redes-sociais-leem-e-compartilham-noticias-sobre-politi ca.ghtml. Ghoshal, Somak. “Modi and His Angry Men: India’s Men Are Responding with Violence to Modi’s Increasingly Nationalist War Cry.” Index on Censorship 48, no. 4 (December 2019): 27–29. Ghoshal, Somak. “Modi and His Angry Men: India’s Men Are Responding with Violence to Modi’s Increasingly Nationalist War Cry.” Index on Censorship 48, no. 4 (December 2019): 27–29. González-Bailón, Sandra, David Lazer, Pablo Barberá, Meiqing Zhang, Hunt Allcott, Taylor Brown, Adriana Crespo-Tenorio et al. "Asymmetric ideological segregation in exposure to political news on Facebook." Science 381, no. 6656 (2023): 392-398. Guess, Andrew et al. ”How do social media feed algorithms affect attitudes and behavior in an election campaign?” Science 381(2023): 398-404. Hall, Ian. "Narendra Modi: Elected authoritarian (born 1950)." In Dictators and Autocrats (London: Routledge, 2021): 191-203. Hallam, Jonny, and Helen Regan. “Thousands Protest across Brazil Calling for President Bolsonaro’s Impeachment.” CNN, October 3, 2021. https://www.cnn.com/2021/10/02/americas/brazil-bolsonaro-protests-intl-hnk/index.html . Holbig, Heike. "Be water, my friend: Hong Kong’s 2019 anti-extradition protests." International Journal of Sociology 50, no. 4 (2020): 325-337. Horwitz, Jeff, and Newley Purnell. “India Threatens Jail for Facebook, WhatsApp and Twitter Employees.” The Wall Street Journal, March 5, 2021. https://www.wsj.com/articles/india-threatens-jail-for-facebook-whatsapp-and-twitter-employees- 11614964542. Hsu, Tiffany, and Steven Lee Myers. “Pro-China YouTube Network Used A.I. to Malign U.S., Report Finds.” The New York Times, December 14, 2023. https://www.nytimes.com/2023/12/14/business/media/pro-china-youtube-disinformation.html . Human Rights Watch. How India’s Archaic Laws Have A Chilling Effect On Dissent (2016 May 24); https://hrw.org/news/2016/05/24/how-indias-archaic-laws-have-chilling-effect- dissent. International IDEA. “Case Study: Brazil - Global State of Democracy 2023 Report.” Accessed December 12, 2023. https://www.idea.int/publications/catalogue/case-study-brazil-gsod-2023-report . “Jammu and Kashmir Leads In Internet Censorship Count, Says Surfshark Study.” Outlook India, January 19, 2023. https://www.outlookindia.com/national/jammu-and-kashmir-leads-in-internet-censorship-count-s ays-surfshark-study-news-255012. Jennifer Earl et al. , “The digital repression of social movements, protest, and activism: A synthetic review.” Science Advances 8, (2022): 1-15. Kahn, Carrie. “A Brazil Court Has Banned Bolsonaro from Running for Election until 2030.” NPR, J une 30, 2023. https://www .npr.org/2023/06/30/1185364211/brazil-bolsonaro-court-banned-election. Kirişci, Kemal, and Sinan Ekim. “The Turkish Constitutional Referendum, Explained.” Brookings, April 13, 2017. https://www.brookings.edu/articles/the-turkish-constitutional-referendum-explained/ . Kraus, Sidney. "Winners of the first 1960 televised presidential debate between Kennedy and Nixon." Journal of Communication 46, no. 4 (1996): 78-96. Kreiss, D, and S. C. McGregor, “Technology firms shape political communication: The work of Microsoft, Facebook, Twitter, and Google with campaigns during the 2016 U.S. Presidential Cycle” Political Communication 35, (2018): 55–177. MacKinnon, Rebecca. “Networked authoritarianism in China and beyond: Implications for global internet freedom.” Journal of Democracy 22 (2011): 32–46. Mandhana, Niharika. “How India’s Narendra Modi Became a Social Media #Superstar.” The Wall Street Journal, May 6, 2015. https://www.wsj.com/articles/indias-prime-minister-a-hit-on-social-media-1430905148. Mashal, Mujib, Suhasini Raj, and Karan Deep Singh. “Modi Tightens Grip on India’s Democracy, Wielding the Judiciary.” The New York Times , March 29, 2023. https://www.nytimes.com/2023/03/29/world/asia/modi-india-gandhi-judiciary .html. Menn, Joseph, and Gerry Shih. “Under India’s Pressure, Facebook Let Propaganda and Hate Speech Thrive.” The Washington Post, September 27, 2023. https://www.washingtonpost.com/world/2023/09/26/india-facebook-propaganda-hate-speech/ . Miller, Michael E. “Google Takes down Maps Made by Thai Right-Wingers Targeting Free Speech Activists.” The Washington Post , June 29, 2021. https://www.washingtonpost.com/world/2021/06/29/thailand-king-google-maps-doxing/ . Moss, Dana M. "Transnational repression, diaspora mobilization, and the case of the Arab Spring." Social Problems 63, no. 4 (2016): 480-498. Moreno, CNNE’s Marcos, and Marlon Sorto. “Brazil’s Supreme Court Orders Bolsonaro to Testify on January 8 Riots.” CNN , April 14, 2023. https://www.cnn.com/2023/04/14/americas/brazil-bolsonaro-testify-january-8-intl-latam/index.ht ml. Mousavi, Maryam, Hasan Davulcu, Mohsen Ahmadi, Robert Axelrod, Richard Davis, and Scott Atran. "Effective Messaging on Social Media: What Makes Online Content Go Viral?." In Proceedings of the ACM Web Conference 2022, pp. 2957-2966. 2022. Nicas, Jack, Flávia Milhorance, and Ana Ionova. “How Bolsonaro Built the Myth of Stolen Elections in Brazil.” The New York Times , October 25, 2022. https://www.nytimes.com/interactive/2022/10/25/world/americas/brazil-bolsonaro-misinformatio n.html Our Data Our Selves. “Personal Data: Political Persuasion - The Guidebook and Visual Gallery.” Accessed December 14, 2023. https://ourdataourselves.tacticaltech.org/posts/inside-the-influence-industry/ . NYU Web Communications. “Exposure to Russian Twitter Campaigns in 2016 Presidential Race Highly Concentrated, Largely Limited to Strongly Partisan Republicans.” Accessed December 8, 2023. https://www.nyu.edu/about/news-publications/news/2023/january/exposure-to-russian-twitter -ca mpaigns-in-2016-presidential-race-.html. Ozawa, Joao VS, Josephine Lukito, Taeyoung Lee, Anita Varma, and Rosental Alves. "Attacks Against Journalists in Brazil: Catalyzing Effects and Resilience During Jair Bolsonaro’s Government." The International Journal of Press/Politics (2023): 1-22. PARI. Indian Languages – Understanding India’s Digital News Consumer. Accessed December 1, 2023. https://ruralindiaonline.org/en/library/resource/indian-languages---understanding-indias-digital-n ews-consumer/#:~:text=This%20study%20titled%20Indian%20Languages,consume%20news%2 0in%20Indian%20languages. Perrigo, Billy. “How Volunteers for India’s Ruling Party Are Using WhatsApp to Fuel Fake News Ahead of Elections.” Time, January 25, 2019. https://time.com/5512032/whatsapp-india-election-2019/ . Piva, Igor Mello, Daniel Salgado, and Juliana Dal. “Bolsonaro Aposta Nas Redes Sociais Para Estruturar Campanha.” O Globo . April 15, 2018. https://oglobo.globo.com/politica/bolsonaro-aposta-nas-redes-sociais-para-estruturar-campanha- 22592586. Phillips, Dom. “Brazil’s Biggest Newspaper Pulls Content from Facebook after Algorithm Change.” The Guardian , February 8, 2018. https://www.theguardian.com/technology/2018/feb/08/facebook-brazil-newspaper-folha-de-s-pau lo-fake-news. Phillips, Tom. “Brazil’s Jair Bolsonaro Threatens Purge of Leftwing ‘Outlaws.’” The Guardian, October 22, 2018. https://www.theguardian.com/world/2018/oct/22/brazils-jair-bolsonaro-says-he-would-put-army- on-streets-to-fight. Phillips, Tom. “‘Brazilians Tired of Him’: How Bolsonaro the ‘Unfloppable’ Flopped.” The Guardian, November 4, 2022. https://www.theguardian.com/world/2022/nov/04/jair-bolsonaro-brazil-election-unfloppable-lost . Phillips, Tom. “‘We Will Not Be Silenced’: Bolsonaro Opponents Pledge Widespread Protests.” The Guardian, October 29, 2018. https://www.theguardian.com/world/2018/oct/29/jair-bolsonaro-brazil-protests-opposition. Poonia, Gitanjali. “TikTok Ban: Will the U.S. Ban the App? What Can We Learn from India?” Deseret News , April 20, 2023. https://www.deseret.com/u-s-world/2023/4/19/23655267/india-us-ban-on-tiktok. Porter, Jon. “Twitter Is Now Obeying India’s New Internet Rules, Government Tells Court.” The Verge, August 11, 2021. https://www .theverge.com/2021/8/11/22619718/twitter-indian-government-internet-it-rules-com pliance-grievance-nodal-officer. Rao, Shakuntala. “Making of Selfie Nationalism: Narendra Modi, the Paradigm Shift to Social Media Governance, and Crisis of Democracy,” Journal of Communication Inquiry, vol. 42/2 (2018): 166–183. Rao, Shakuntala. "Narendra Modi’s social media election campaign and India’s delegative democracy." The Communication Review 23, no. 3 (2020): 223-241. Reuters. “Bolsonaro to Join Center-Right PL Party to Take on Leftist Lula.” Reuters , November 8, 2021. https://www.reuters.com/world/americas/bolsonaro-join-center-right-pl-party-take-leftist-lula-20 21-11-08/. Rosati, Andrew, and Guilherme Bento. “Brazil’s Loudest Election Deniers Are Kicked Off Social Media.” Bloomberg , November 12, 2022. https://www.bloomberg.com/news/articles/2022-11-12/brazil-s-loudest-election-deniers-are-kick ed-off-social-media. Rossini, Patrícia, Camila Mont'Alverne, and Antonis Kalogeropoulos. "Explaining beliefs in electoral misinformation in the 2022 Brazilian election: The role of ideology, political trust, social media, and messaging apps." Harvard Kennedy School Misinformation Review 4, no. 3 (2023). RSF. “Brazil.” Accessed December 18, 2023. https://rsf.org/en/country/brazil. Rosenberg, Matthew, Nicholas Confessore, and Carole Cadwalladr. “How Trump Consultants Exploited the Facebook Data of Millions.” The New York Times , March 17, 2018. https://www.nytimes.com/2018/03/17/us/politics/cambridge-analytica-trump-campaign.html . RSF. “Brazil.” Accessed December 8, 2023. https://rsf.org/en/country/brazil. Sá, Nelson de. “Eleitor de Bolsonaro é o Mais Ativo Nas Redes, Diz Datafolha.” Folha de S.Paulo , January 1, 2018. https://www1.folha.uol.com.br/poder/2018/01/1947267-eleitor-de-bolsonaro-e-o-mais-ativo-nas- redes-diz-datafolha.shtml. Samuels, Elyse. “How Misinformation on WhatsApp Led to a Mob Killing in India.” The Washington Post, February 21, 2020. https://www.washingtonpost.com/politics/2020/02/21/how-misinformation-whatsapp-led-deathly -mob-lynching-india/. Santoshini, Sarita. “‘Not Worthy of a Democracy’: Behind India’s Slide on Press Freedom.” The Christian Science Monitor. Accessed December 18, 2023. https://www.csmonitor .com/World/Asia-South-Central/2023/0303/Not-worthy-of-a-democracy- Behind-India-s-slide-on-press-freedom. Schill, Dan, and John Allen Hendricks, eds. The presidency and social media: Discourse, disruption, and digital democracy in the 2016 presidential election. (London: Routledge, 2017) Scott, Mark. “How Turkey’s Erdoğan Uses Social Media to Cling onto Power.” POLITICO, May 15, 2023. https://www.politico.eu/article/recep-tayyip-erdogan-elon-musk-twitter-turkey-elections-social- media-power/. Sharma, Anuradha. "Modi’s strange relationship with the truth: The Indian prime minister only likes news that flatters him. Plus John Lloyd on why we should be more concerned about threats to Indian media than US media." Index on Censorship 47, no. 3 (2018): 74-77. Sharma, Yashraj. “Twitter Accused of Censorship in India as It Blocks Modi Critics.” The Guardian, April 5, 2023. https://www.theguardian.com/world/2023/apr/05/twitter-accused-of-censorship-in-india-as-it-blo cks-modi-critics-elon-musk. Shane, Tommy. "The semiotics of authenticity: Indexicality in Donald Trump’s Tweets." Social Media+ Society 4, no. 3 (2018): 1-14. Simões, Mariana. “Grupos Pró-Bolsonaro No WhatsApp Orquestram Fake News e Ataques Pessoais Na Internet, Diz Pesquisa.” Agência Pública, October 22, 2018. https://apublica.org/2018/10/grupos-pro-bolsonaro-no-whatsapp-orquestram-fake-news-e-ataque s-pessoais-na-internet-diz-pesquisa/. Spektor, Matias. “It’s Not Just the Right That’s Voting for Bolsonaro. It’s Everyone.” Foreign Policy, October 26, 2018. https://foreignpolicy.com/2018/10/26/its-not-just-the-right-thats-voting-for-bolsonaro-its-everyon e-far-right-brazil-corruption-center-left-anger-pt-black-gay-racism-homophobia/. Spicer, Sarah. “Journalists in India Arrested, Threatened, Suspended from Twitter in Separate Incidents.” Committee to Protect Journalists, April 20, 2023. https://cpj.org/2023/04/journalists-in-india-arrested-threatened-suspended-from-twitter-in-separat e-incidents/. Sinha, Subir. "‘Strong leaders’, authoritarian populism and Indian developmentalism: The Modi moment in historical context." Geoforum 124 (2021): 320-333. Swenson, Ali and Kelvin Chan, “AI-Created Election Disinformation Is Deceiving the World.” AP News, March 14, 2024. https://apnews.com/article/artificial-intelligence-elections-disinformation-chatgpt-bc283e7426402f0b4baa7df280a4c3fd. The Economist. “Jair Bolsonaro, Brazil’s President, Is a Master of Social Media.” The Economist, March 14, 2019. https://www.economist.com/the-americas/2019/03/14/jair-bolsonaro-brazils-president-is-a-maste r-of-social-media. The World Factbook. “Brazil.” Accessed December 7, 2023. https://www.cia.gov/the-world-factbook/countries/Braz The World Factbook. “India.” Accessed December 7, 2023. https://www.cia.gov/the-world-factbook/countries/india/. Tripathi, Salil. “Modi’s Singular Vision for India.” Index on Censorship 52, no. 1 (April 2023): 60–65. Toksabay, Ece, and Ezgi Erkoyun. “Turkey Arrests 78 over Earthquake Social Media Posts.” Reuters , February 15, 2023. https://www.reuters.com/world/middle-east/turkey-arrests-78-over-earthquake-social-media-post s-2023-02-15/. Statista. "Smartphone penetration rate in India from 2009 to 2023, with estimates until 2040." June 29, 2023. https://www.statista.com/statistics/1229799/india-smartphone-penetration-rate/ Tudoroiu, Theodor. "Social media and revolutionary waves: The case of the Arab spring." New Political Science 36, no. 3 (2014): 346-365. Wallenfeldt, Jeff. “Jair Bolsonaro.” Encyclopedia Britannica, October 29, 2018. https://www.britannica.com/biography/Jair-Bolsonaro. Werleman, C. J. "Rising violence against muslims in India under modi and BJP rule." Insight Turkey 23, no. 2 (2021): 39-50 Wylie, Christopher. Mindf*ck: Cambridge Analytica and the Plot to Break America (New York: Random House, 2019).

Schedule F And The Future Of Civil Service Protections Sasha Bonkowsky Abstract Civil service protections in the United States, such as merit-based hiring, employee tenure, and the dismissal appeal , have come under attack in recent years, most notably from former president Donald Trump’s proposed Schedule F that would strip those protections from many federal employees. Under Schedule F, thousands of federal positions would become political appointees who could be dismissed at-will. This paper examines the history and justifications for exempting positions from traditional civil-service protections, as well as the feasibility for Biden’s Office of Personnel Management to forestall Schedule F. I conclude that Schedule F would likely have negative effects on government performance and morale, but that the OPM may not be able to effectively prevent implementation of Schedule F in the event of Trump’s re-election. Throughout President Donald Trump’s administration, he frequently attacked the federal bureaucracy for what he saw as its inefficiency or refusal to enact his policies. He was elected on promises of “draining the swamp” in American government; after the 2016 election, he repeatedly attacked a supposed “deep state” of insider operatives within federal agencies and departments who were ideologically opposed to him and used their positions in the bureaucracy, from which it was hard to dismiss them, to hamstring and block his agenda. Where Trump had appointment power, such as with agency heads or other political appointees, he was quick to remove those he saw as disloyal. However, many of his attacks were limited to mere invective. In the vast American civil service comprising more than two million employees, only 4,000 of those are political appointees that the president can remove at will. And in comparison to other democracies like the UK, France, or Japan, which all have similar civil service systems,, the US actually has many more political appointees. The rest are career employees. Career civil servants are usually hired using a merit-based, competitive examination system, in which all prospective employees are given the same exam, and those meeting or exceeding a particular score are hired. Once in the federal bureaucracy—and after a probationary period of several months to a year—employees usually cannot be dismissed unless they are found to be significantly derelict in their duties, and they can appeal a firing to the Merit Systems Protection Board (MSPB), which can investigate and reinstate an employee if they have been unlawfully dismissed. There are certain exceptions to this process, known as Schedules A through E, but they are only used when the usual processes are deemed “impractical.” In October 2020, Trump signed Executive Order 13957, which would have significantly increased the number of political appointees. It created a new category of positions within the federal bureaucracy—known as Schedule F positions—that would be exempted from regular civil service hiring procedures. Instead of the examination process, the president would be able to handpick employees for positions that fell under Schedule F and dismiss them at will without worrying about an appeal to the MSPB, as the Government Accountability Office (GAO) found in its analysis of the order. President Biden repealed the executive order during his first days in office, writing that it “undermined the foundations of the civil service and its merit system principles.” But such an action is hardly permanent—after all, another future president could easily reissue the executive order. To avoid that, the Office of Personnel Management (OPM) issued a proposed rule in late 2023 that would prevent career employees from being excepted under Schedule F or a similar order. The proposed rule also stated that any employee who was reclassified as political appointee would still possess the same protections from being fired and could appeal any dismissal to the MSPB. However, it’s unclear if this proposal will take effect before the 2024 election and a possible transition of power. This paper first examines civil service protections and common exemptions—especially those for current political appointees—in more detail, before turning to the possible effects of Schedule F and attempts to block it. Data from the past 10 years of OPM rulemaking demonstrates that, on average, rules take about a year to be finalized, meaning that if this civil service rule follows the usual timeline, it may be too late to go fully into effect before a Republican president or Republican Congress could repeal it. Civil Service Exceptions The US civil service already allows certain positions to be excepted from the competitive service in five categories: Schedules A, B, C, D, and E. Typically, prospective civil service employees must take a general exam, from which the highest scorers (and those with veteran’s preference) can be selected for hiring. However, this process can be slow, and does not cover specialized knowledge that an agency might require. Positions excepted under one of these schedules can be hired without this usual examination process when it is determined that the exam would make it impractical to recruit adequate numbers of students from qualifying institutions, (under Schedule D), when urgency is required (under Schedule A), or when selecting for particular experience (under Schedule B), among others. Only one schedule deals with political appointments—Schedule C—and it functions most similarly to the proposed Schedule F. Schedule C allows excepted hiring for “positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials”. These are often positions like press secretaries for individual bureaus within agencies, White House liaisons, or confidential assistants to secretaries and undersecretaries. There are usually between 1,500 and 1,800 Schedule C appointments at any given time, with 1,725 at the end of the first Bush administration, 1,538 at the end of the Obama administration, and 1,566 at the end of the Trump administration. These political appointments within the civil service didn’t always exist, and like the present-day Schedule F, Schedule C was the subject of significant controversy when it was first carved out in 1956 under the Eisenhower administration. One Democratic senator decried Schedule C as “an attempt to turn the civil service into a Republican grab bag” on the Senate floor, and the Democratic Party platform of 1956 stated that the Eisenhower administration’s policies “reflect prejudices and excessive partisanship to the detriment of employee morale”. The director of the Civil Service Commission defended them in the New York Times , writing that “the American people in 1952 expected your Administration to put into effect your announced policies…it is of the most vital importance that…policy-determining officials should be subject to change with any change in political administration”. Yet despite this public criticism, the Democratic-controlled Congress passed no legislation curtailing or ending Schedule C, and presidents of both parties have made use of Schedule C’s hiring authority. Several restrictions are placed on Schedule C positions and the ways in which they can be assigned. There are no “vacant” Schedule C positions which may be filled at will by the President—instead, any Schedule C positions must be approved by the director of OPM, and OPM’s authorization for those positions is automatically revoked when an employee leaves. Additionally, when requesting Schedule C exception, the head of the requesting agency must submit a statement to OPM that the position was not created in order to detail the employee to the White House—that is, assign them to work in the White House while still being paid by their original agency. This requirement was added after a 1990 GAO report found that Schedule C appointees were being inappropriately detailed to the White House rather than performing the specified duties of their positions. Though Schedule F and Schedule C may appear similar in their creation of low-level, politically appointed positions, the proposed Schedule F category would carve out much broader exceptions to the competitive service. Schedule C restricts its exceptions to appointments of a “confidential or policy-determining” character; Schedule F would allow exceptions to the competitive service for positions of a “confidential, policy-determining, policy-making, or policy -advocating character.” Policy-making or policy-advocating are much broader terms than merely policy-determining, and their definitions are statutorily vague, meaning they could be applied to a much greater number of employees. The executive order drew its legal basis from Section 7511 of Title 5 of the US Code, which excludes employees “of a confidential, policy-determining, policy-making or policy-advocating character” from competitive examination procedures and protection from dismissal. Determination of whether an employee’s job fits these requirements are made by the President and required to be authorized by the head of OPM. This exception, however, had never been put into practice before. The effects of Schedule F implementation are unclear. The executive order was issued in late October 2020, directing that agencies should submit a list of positions that would fall under Schedule F and their reasons for selecting those positions within 90 days (on January 19, 2021). Agencies were also directed to submit petitions to the Federal Labor Relations Authority to determine whether excepted positions under Schedule F would also be excluded from collective bargaining authorities. Few agencies—15 in total, out of over 400 federal agencies—submitted information to OPM, many claiming that they needed more time. Of those, just four agencies submitted names and lists of positions for conversion: the International Boundary and Water Commission proposed converting just 5 employees of its 234, the Environmental Protection Agency proposed 579 employees of its 11,000, the Federal Energy Regulatory Commission proposed 836 of its 1,166 employees, and the Office of Management and Budget (OMB) proposed 436 of its 527 employees. One issue is these agencies are not particularly representative of the bureaucracy as a whole—the IBWC and FERC are independent commissions, and OMB is deeply embedded in the White House—and so it remains unclear exactly how many employees would be affected by a future implementation of Schedule F. However, the authors of Schedule F have definite intentions for its use and assumptions of how many employees it might affect. The executive order was largely crafted and written by James Sherk, a member of the Domestic Policy Council focusing on labor policy. In 2017, he submitted a memo entitled “Proposed Labor Reforms,” in which he argued for the possibility that “Article II executive power gives the president inherent authority to dismiss any federal employee. This implies civil service legislation,as well as other protections for federal employees, (such as preventing their dismissal for joining a union) are unconstitutional. If so, the President could issue an Executive Order outlining a streamlined new process for dismissing federal employees”. Three years later, he would see that executive order realized in the creation of Schedule F. At a panel discussion for the National Academy of Public Administration (NAPA) in 2023, he continued to argue in favor of this proposition, saying that “every federal employee should serve at the pleasure of the president”. Given the limited data submitted by agencies, there’s no set number of employees Schedule F might affect. Experts, and Sherk himself, have estimated around 50,000, although Sherk noted the number as a low estimate., In the same NAPA seminar, he said that “I think there's ways you could broaden the scope of the order…I think you could expand it beyond 50,000. Say to like, 200,000. 300,000.” Former Trump administration officials have reportedly “saved lists of previous appointees…as well as career officers they viewed as uncooperative and would seek to fire based on an executive order to weaken civil service protections”, although such lists have not been made public. But having the ability to fire employees, or doing so, doesn’t necessarily mean the administration would be able to fill the positions. The Trump administration was slower than other administrations to nominate officials to key positions, other civil servants rated Trump appointees as less competent than previous Republican administrations or career civil servants, and the Trump administration faced difficulties finding even officials to fill top-level positions. While the Trump administration was able to authorize and fill about as many Schedule C positions as previous administrations, that doesn’t necessarily mean they would be able to fill Schedule F positions given the vastly larger number of them. Besides the numerical scope of its effects, Schedule F was also defended as necessary to improve the efficiency of the federal bureaucracy. The text of the executive order itself cited “long delays and substandard-quality work for important agency projects” as part of its rationale, and stated “agencies need the flexibility to expeditiously remove poorly performing employees”. Many stakeholders that GAO interviewed acknowledged that the speed of federal hiring should be improved, and that Schedule F would streamline that process; one also told GAO that “employees in Schedule F positions should be…more motivated to quickly and effectively implement the President’s policy agenda”. Criticism of a slow-moving and unresponsive bureaucracy, in which onerous hiring procedures and strict removal protections hamstring the agencies themselves, has been long-standing. Presidents and agencies alike have bipartisanly seen problems in the hiring process and sought to reform it: the US National Performance Review in 1993 wrote that “hiring is complex and rule-bound” in the civil service; a Bush-era report from the Merit Systems Protection Board wrote in favor of reform that would “provide agencies the flexibilities they need to effectively manage” and recommended that OPM should “speed the process” of federal hiring; and the Obama administration in turn issued guidance on simplifying and overhauling the civil service hiring process. The picture is little better in terms of firing underperforming employees: it’s long been understood that civil protections reduce the power of incentives, such that employees in government see little connection between performance and job security. But Schedule F seems unlikely to accomplish these reforms in a way that benefits government performance. Several of the stakeholders which GAO spoke to said that Schedule F could make recruitment of federal employees more difficult, as potential applicants might be leery of taking a Schedule F position if they believed they could be removed after a change in administration or for other political reasons. This is in line with the theory advanced by Gailmard and Patty, which states that civil servants are incentivized to build expertise when tenure provides them the stability to make such an investment. David Lewis writes in his book The Politics of Presidential Appointments, drawing on the example of the OPM in the 1980s and 1990s, that, while “politicization helped change policy,” it came at the expense of “long-term agency capacity and reputation…experienced career professionals left the agency and it was hard to replace them [or] recruit bright young people to work in the agency.” New meta-analysis of the meritocratic civil services on government performances found that associated practices such as tenure or merit-based hiring are broadly associated with stronger government performance and lower corruption. With an eye towards a potential future reissuing of the executive order, authors conclude that “converting career employees to Schedule F and removing their civil service protections is likely to degrade government performance”. Rulemaking To Prevent the Reinstatement of Schedule F The Biden administration and Democrats more broadly share similar concerns about Schedule F’s potential impact on the federal government were it to be reinstated by Trump or another future administration. Congressional Democrats have attempted multiple times to pass bills which would prevent Schedule F’s reinstatement or add amendments blocking Schedule F to must-pass defense appropriation bills. However, their efforts have been blocked by Republicans. Bypassing the legislative method, Biden’s OPM released on September 18, 2023, a proposed rule entitled “Upholding Civil Service Protections and Merit Systems Principles,” aimed as a regulatory method to prevent future administrations from reissuing Schedule F. The rule would: allow employees moved from the competitive service to the excepted service to retain their civil service protections unless the employee voluntarily relinquishes them. redefine “confidential, policy-determining, policy-making, or policy-advocating”—the language which Sherk and the Trump White House relied on to craft the executive order—to mean only non-career, political appointees. allow employees moved from the competitive service to the excepted service to appeal the move to the MSPB. This would, in essence, cut out the heart of Schedule F: removing its legal basis and specifying that converted employees retain tenure protections, such that converting their positions to the excepted service does not make them at-will employees. OPM draws its authority to make these changes from Chapter 75 of Title 5 of the United States Code, specifically 5 U.S. Code § 7514 and 5 U.S. Code § 7504, both sections which give OPM broad discretion to regulate civil service protections for federal employees. OPM also asserts its authority based on 5 U.S.C. 1103(a)(5) and 5 U.S.C. 1302 to make specific regulations about the procedures of moving employees between the competitive and excepted service, pointing out that OPM has repeatedly exercised that authority in the past (and indeed, regulated that movement in the implementation of Schedule F). The proposed rule closed its 60-day comment period on November 17, 2023, during which time it received 4,096 comments. With the strong support of the Biden administration and the leadership of OPM behind it, the rule is expected to move forward. However, the proposed rule has been the target of criticism by Republicans and people associated with the Trump 2024 campaign—which gives OPM a potential impending deadline. Almost certainly, if Trump wins the 2024 election and the rule is not finalized by his inauguration, he will direct the OPM to drop it; and even a finalized rule could be subject to overturning by a potential Republican Congress under the Congressional Review Act. The Congressional Review Act (CRA) is a tool that Congress can use to overturn federal regulatory actions, which was enacted as part of the Small Business Regulatory Enforcement Fairness Act in 1996. The CRA requires that agencies submit finalized rules to Congress and the GAO 60 legislative days before they take effect: if Congress passes a resolution of disapproval of the rule within that time period and the President signs it, or if Congress passes such a resolution over a presidential veto, then the rule cannot go into effect. Because of the threat (and exercise) of presidential veto power, rules have been overturned under the CRA only immediately following a change in presidential administration, in 2001, 2017, and 2021. However, the deadline for finalized rules to avoid CRA review by a potentially hostile Congress or President is not just 60 days before a new president could be inaugurated (that is, late November). Congress has 60 legislative days to consider rules—and if Congress adjourns sine die during that period, the 60-day period resets in its entirety beginning on the 15th day of the new legislative session, in what’s known as a “lookback” period. In 2017, that meant that the Republican Congress was able to disapprove of rules finalized as far back as May 2016. Thus, in order to be certain that it will go into effect, OPM must finalize its rule by mid-2024. But the question is if it will be able to do so by then. In the 2023 Fall Unified Agenda, published by the Office of Information and Regulatory Affairs (OIRA), OPM specified that it is targeting April 2024 for publication of a final rule. Based on historical precedent, this would provide the rule enough time to avoid reconsideration and potential disapproval from the next Congress. But OPM’s projected timeline may be overly optimistic, given its past timelines in publishing final rules. I collected data on finalized OPM rules between 2023 and 2013 in the Federal Register and examined how long it took between publication of the proposed rule and publication of the finalized rule. Since OPM’s proposed rule at hand of upholding civil-service protections has been defined as “significant” under Executive Order 12866 (likely due to its potential to “raise novel legal or policy issues arising out of legal mandates [or] the President’s priorities”), I restricted my search to only those rules which were similarly deemed significant, as they require a full review by OIRA that lengthens the rulemaking process. I also did not include OPM rules that were issued only as interim final rules rather than undergoing a full notice-and-comment period. The full list of all OPM rules meeting these criteria and their timelines can be found in Appendix A. Below are the summarized results: FIGURE 1: OPM RULEMAKING AVERAGE TIMELINE Notes: The timeline of OPM rulemaking is defined as the number of days between OPM’s publication of a proposed rule and the publication of a final rule. Several outlier rules took more than three years to be finalized. Data sourced from the Federal Register, 2013-2023. FIGURE 2. OPM RULEMAKING TIMELINE BY YEAR Notes: OPM published no significant final rules in 2017. Data sourced from the Federal Register 2013-2023. On average, it took 473 days between OPM issuing a proposed rule and OPM issuing a final rule. Even after eliminating the major outlier rule that took nearly 6 years to finalize, the data still suggests that it generally takes over a year to finalize a rule after it is proposed. Though the timeline varies slightly year by year, there is no clear pattern that would allow us to infer that the OPM of 2023-2024 finalizes rules significantly faster or slower than the OPM of, say, 2013-2014. If this timeline holds for OPM’s rule undercutting Schedule F, we can project that OPM will finalize the rule sometime in December 2024—too late to avoid a potential disapproval under the CRA. However, one case study of similar civil-service rulemaking demonstrates that potential CRA review is not the same as certain CRA review. On September 17, 2019, the OPM under Trump issued a proposed rule that would more strictly enforce the probationary period before employees were accepted to a competitive service position and sought to streamline civil service removal procedures. In many ways, this rule was a precursor to Schedule F, drawing on the same language and reasoning about an ineffective federal government that couldn’t remove underperforming employees. The rule was finalized on October 16, 2020, a timeline which would have allowed the 117th Congress under unified Democratic control to review and disapprove it. They didn’t. It’s not entirely clear why not: congressional disapproval of rules cannot be filibustered in the Senate, and 20 days after their proposal can be discharged for a floor vote by a minority of 30 Senators. More likely, the Democratic Congress preferred to let rollback occur through the agency processes: there were only three rule disapprovals in total in 2021 of Trump-era rules, but many more were overturned by agencies’ new leaders. But that process takes time, and so it was only in November 2022 when OPM finalized its rollback, meaning the Trump-era changes were in place for almost two full years of the Biden administration. The OPM’s proposed anti-Schedule F rule would likely follow a similar track. An OPM under Trump would certainly seek to undo it, even if the rule is successfully finalized and put into effect without disapproval—but as in the case above, it would likely take them months or years to do so. A rule undoing this one would also be open to legal challenges that an executive order would not be, and the Trump administration faced significant challenges in successful rulemaking. Previous administrations succeeded in roughly 70% of challenges to agency actions, while the Trump administration had a dismal 23% success rate in legal challenges due to bypassing procedural requirements, providing incomplete analyses of policy effects, or taking action which exceeded an agency’s statutory authority. Conclusion Whether or not OPM manages to finalize its rule and put it into effect successfully, the fight over the structure and protections of the civil service is unlikely to end in 2024 or beyond. In recent years, long-held civil service practices of non-politicization and tenure protections that were largely taken as established have come under increasing attack, largely from Republican officials and presidential candidates. In recent years, it’s the executive branch which has been most involved in determining the structure of federal civil service, from the Schedule F executive order to OPM’s proposed rulemaking, and attempts for similar legislation have been blocked or stalled out before making major progress, and research has largely focused on the president’s and agencies’ influence. But Congress has historically been the instrument of major changes to the civil service, from the Pendleton Act to the Civil Service Reform Act of 1978—and it’s only recently that Congress has ceded that power to the executive. While research such as this examining the direction, scope, and timing of executive influence over civil service is certainly beneficial given the political context, one potential direction for further research could be an examination of Congress’ role in civil service in the past, and what potential legislative actions would be beneficial in future. References “5 U.S. Code § 7504 - Regulations.” LII / Legal Information Institute , https://www.law.cornell.edu/uscode/text/5/7504 . Accessed 14 Dec. 2023. “5 U.S. Code § 7511 - Definitions; Application.” LII / Legal Information Institute , https://www.law.cornell.edu/uscode/text/5/7511 . Accessed 13 Dec. 2023. “5 U.S. Code § 7514 - Regulations.” LII / Legal Information Institute , https://www.law.cornell.edu/uscode/text/5/7514 . Accessed 14 Dec. 2023. “116th Congress Legislative Calendar.” Ballotpedia , https://ballotpedia.org/116th_Congress_legislative_calendar . Accessed 14 Dec. 2023. Arnsdorf, Isaac, et al. “Trump and Allies Plot Revenge, Justice Department Control in a Second Term.” Washington Post , 6 Nov. 2023. www.washingtonpost.com , https://www.washingtonpost.com/politics/2023/11/05/trump-revenge-second-term/ . Bellini, Jason. “Trump’s Tool for Undoing Obama-Era Regulations.” WSJ , 18 Feb. 2017, https://www.wsj.com/video/trumps-tool-for-undoing-obama-era-regulations/DA82F16D-2ED0-47F0-984B-A9A873E2F9A0 . Carey, Maeve P., and Christopher M. Davis. “The Congressional Review Act (CRA): A Brief Overview.” Congressional Research Service , Feb. 2023. Davis Noll, Bethany. ‘Tired of Winning’: Judicial Review of Regulatory Policy in the Trump Era . 4426370, 22 Apr. 2021. Social Science Research Network , https://papers.ssrn.com/abstract=4426370 . Dawsey, Josh, et al. “In Trump’s Final Days, a 30-Year-Old Aide Purges Officials Seen as Insufficiently Loyal.” Washington Post , 14 Nov. 2020. www.washingtonpost.com , https://www.washingtonpost.com/politics/trump-white-house-purge/2020/11/13/2af12c94-25ca-11eb-8672-c281c7a2c96e_story.html . Drezner, Daniel W. “Perspective | How Hard up Is President Trump in Staffing His Administration? Pretty Hard Up!” Washington Post , 19 June 2019. www.washingtonpost.com , https://www.washingtonpost.com/outlook/2019/06/19/how-hard-up-is-president-trump-staffing-his-administration-pretty-hard-up/ . “Employment and Trends - September.” U.S. Office of Personnel Management , Sept. 2013, https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/employment-trends-data/2013/september/ . Forum on Schedule F and the Future of the Public Service . Directed by NAPA WASH, 2023. YouTube , https://www.youtube.com/watch?v=wSUY9ito9TM . Friedman, Drew. “Democrats Revive Anti-Schedule F Bill, with a Few Tweaks and a New Name.” Federal News Network , 14 Feb. 2023, https://federalnewsnetwork.com/congress/2023/02/democrats-revive-anti-schedule-f-bill-with-a-few-tweaks-and-a-new-name/ . Gailmard, Sean, and John W. Patty. Learning While Governing: Expertise and Accountability in the Executive Branch . University of Chicago Press, 2012. GAO. Civil Service: Agency Responses and Perspectives on Former Executive Order to Create a New Schedule F Category of Federal Positions | U.S. GAO . 28 Sept. 2022, https://www.gao.gov/products/gao-22-105504 . Lewis, David E. The Politics of Presidential Appointments: Political Control and Bureaucratic Performance . Princeton University Press, 2008. JSTOR , https://doi.org/10.2307/j.ctt7rnqz . Lewis, David E., and Mark D. Richardson. “The Very Best People: President Trump and the Management of Executive Personnel.” Presidential Studies Quarterly , vol. 51, no. 1, 2021, pp. 51–70. Wiley Online Library , https://doi.org/10.1111/psq.12697 . Makita, Jun. “A Study of the Functions of Political Appointees from a Comparative Perspective.” Asian Journal of Comparative Politics , vol. 7, no. 1, Mar. 2022, pp. 146–61. SAGE Journals , https://doi.org/10.1177/20578911211036943 . Moynihan, Don. “A Tangible Thing You Can Do Today to Fight Trump’s Takeover of the Federal Government.” Can We Still Govern? , 15 Nov. 2023, https://donmoynihan.substack.com/p/a-tangible-thing-you-can-do-today . Moynihan, Donald P. “Public Management for Populists: Trump’s Schedule F Executive Order and the Future of the Civil Service.” Public Administration Review , vol. 82, no. 1, 2022, pp. 174–78. Wiley Online Library , https://doi.org/10.1111/puar.13433 . MSPB. “Reforming Federal Hiring - Beyond Faster and Cheaper.” Office of Policy and Hiring , 2006. OIG. “Evaluation of the Department of State’s Use of Schedule B Hiring Authority.” OIG , 2018. OIRA. “View Rule: Upholding Civil Service Protections and Merit System Principles.” Reginfo.Gov , https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=3206-AO56 . Accessed 14 Dec. 2023. Oliveira, Eloy, et al. “What Does the Evidence Tell Us about Merit Principles and Government Performance?” Public Administration , vol. n/a, no. n/a, June 2023. Wiley Online Library , https://doi.org/10.1111/padm.12945 . OPM. “Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions.” Federal Register , 17 Sept. 2019, https://www.federalregister.gov/documents/2019/09/17/2019-19636/probation-on-initial-appointment-to-a-competitive-position-performance-based-reduction-in-grade-and . ---. “Upholding Civil Service Protections and Merit System Principles.” Federal Register , 18 Sept. 2023, https://www.federalregister.gov/documents/2023/09/18/2023-19806/upholding-civil-service-protections-and-merit-system-principles . Peters, Gerhard, and John Wooley. “1956 Democratic Party Platform.” The American Presidency Project , https://www.presidency.ucsb.edu/documents/1956-democratic-party-platform . Accessed 12 Dec. 2023. Rainey, Hal G. “Perceptions of Incentives in Business and Government: Implications for Civil Service Reform.” Public Administration Review , vol. 39, no. 5, 1979, pp. 440–48. JSTOR , https://doi.org/10.2307/3109918 . Rein, Lisa, et al. “Trump’s Historic Assault on the Civil Service Was Four Years in the Making.” Washington Post , 24 Oct. 2020. www.washingtonpost.com , https://www.washingtonpost.com/politics/trump-federal-civil-service/2020/10/23/02fbf05c-1549-11eb-ba42-ec6a580836ed_story.html . “SUPPLEMENTAL APPROPRIATIONS 1956.” CIA FOIA , 5 May 2010, https://www.cia.gov/readingroom/document/cia-rdp63t00245r000100180018-2 . Swan, Jonathan, et al. “Biden Administration Aims to Trump-Proof the Federal Work Force.” The New York Times , 15 Sept. 2023. NYTimes.com , https://www.nytimes.com/2023/09/15/us/politics/trump-biden-schedule-f.html . Swan, Jonathan, and Maggie Haberman. “Heritage Foundation Makes Plans to Staff Next G.O.P. Administration.” The New York Times , 20 Apr. 2023. NYTimes.com , https://www.nytimes.com/2023/04/20/us/politics/republican-president-2024-heritage-foundation.html . Thompson, James R. “Civil Service Reform Is Dead: Long Live Civil Service Reform.” Public Personnel Management , vol. 50, no. 4, Dec. 2021, pp. 584–609. SAGE Journals , https://doi.org/10.1177/0091026020982026 . Trump, Donald. “Executive Order on Creating Schedule F In The Excepted Service.” The White House , https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/ . Accessed 13 Dec. 2023. Ungar, Bernard L. “Details of Schedule C Employees to the White House.” GAO , 1992. https://www.gao.gov/assets/t-ggd-92-28.pdf United States Government Policy and Supporting Positions (Plum Book), 2016 . U.S. Government Publishing Office, 1 Dec. 2016. DGPO , https://www.govinfo.gov/app/details/GPO-PLUMBOOK-2016 . United States Government Policy and Supporting Positions (Plum Book), 2020 . U.S. Government Publishing Office, 1 Dec. 2020. DGPO , https://www.govinfo.gov/app/details/GPO-PLUMBOOK-2020 . Wagner, Erich. “Schedule F Architects Say the Plan’s Critics Are ‘Hyperbolic.’” Government Executive , 29 June 2023, https://www.govexec.com/workforce/2023/06/schedule-f-architects-plans-critics-hyperbolic/388118/ . ---. “Year of the Living Dead: How Schedule F Continued to Threaten to Upend the Civil Service in 2022.” Government Executive , 28 Dec. 2022, https://www.govexec.com/workforce/2022/12/year-living-dead-how-schedule-f-continued-threaten-upend-civil-service-2020/381257/ . Young, Philip. “Civil Service and Eisenhower Texts.” The New York Times , 1 Oct. 1956, p. 14.

Vermont Act 46 Implications for School Choice Quinn Bornstein Brown University Author Danai Benopoulou Mike Danello Phillip Squires Editors Fall 2018 This paper analyzes Vermont Act 46, an education policy passed by the state legislature in 2015 that seeks to reduce rising public education costs by consolidating the state’s many small, rural school districts into larger unified districts Introduction Vermont is the second-smallest state in the United States, with a 2014 population of around 626,500. Compared to the country as a whole, Vermont has a smaller percentage of residents under the age of 18: 19.4% compared to the 23.1% nationwide average (US Census Bureau, 2014). Even though this number might appear to be trivial, the difference illustrates a dire issue that the state is facing. The number of children in the state’s K-12 public school system has declined from 103,000 students in 1997 to 78,300 in 2015 without a significant reduction in school sites or personnel. This, in turn, has led to a sharp increase in education spending. Since 2009, Vermont’s per-pupil expenditure has been among the highest nationwide.[1] The budgetary expansion is exacerbated by the changing demographics of students who are enrolled in the school system, including a 47% increase in the number of students who qualify for free and reduced lunches through the Supplemental Nutrition Assistance Program.[2] A heavy burden of this spending increase is placed on residents’ income taxes. Vermont’s school-aged population decline and the accompanying spending hikes are not expected to improve in the coming years. Therefore, state lawmakers have been searching for a way to provide the best opportunities to students while simultaneously decreasing the educational budget. A possible policy solution is Vermont Act 46, which was signed into law in June 2015 by former Governor Peter Shumlin. The act provides three school district consolidation styles and offers tax incentives to towns that merge to create districts that contain at least 900 students.[3] If successful, the act aims to increase educational opportunities through the curricular and extracurricular programs offered by larger districts, and decrease budgetary inefficiencies caused by Vermont’s underutilized school facilities and personnel. But what will guarantee Act 46’s success in implementation? As written, the law is poised for success in its high-visibility and symbolic appeal to community unity as well as its use of monetary inducements as a policy tool to increase district cooperation. In addition, its mixed top-down and bottom-up structure appeals politically to a wide range of constituencies including conservatives, liberals, the governor, and school board members. However, Act 46’s success is threatened by the controversy surrounding whether districts that merge will have to give up their school choice rights. Leading education policy analyst Rick Hess argues that one of the biggest impediments to policy implementation is political controversy around the topic.[4] School choice is a longstanding attribute of the Vermont public education system. Because of the state’s mainly rural population, 82 out of 97 school districts do not have the capacity to operate their own high school.[5] Thus, inhabitants of those districts are free to choose a high school, rather than be assigned one. The ability to attend a school outside of the district is highly valued among Vermont communities as it allows for local control, parental freedom, and increased educational opportunity. Due to the community’s investment in school choice, the implementation of Act 46 will only be successful if it is revised and clarified by the Vermont legislature in order to preserve school choice. Vermont Act 46 Explained Vermont Act 46 operates on two axes: budgetary efficiency and increasing student opportunity. Legislators and the governor believe that both policy issues can be addressed through school district consolidation. Currently, the state contains 13 different types of school district structures. This diversity has resulted in a lack of cohesion and flexibility to share curricular resources, administrative models, and extra-curricular opportunities.[6] Because of Vermont’s low population density—an average of 68 residents per square mile—the smallest Vermont elementary school contains 15 students, and the smallest high school a mere 55.[7] These schools are not anomalies: out of the state’s 300 public schools, 205 enroll fewer than 300 students.[8] On the one hand, small classroom sizes and low student to teacher ratios offer many benefits, such as individualized attention. However, small schools often do not have the ability to offer a diverse range of educational opportunities and have higher per-pupil costs than larger schools. Research on economies of scale by Bruce Baker of Rutgers University and Wendy Geller of the Vermont State Agency of Education finds that nationwide, “district-level per pupil costs tend to level off as district enrollments approach 2000 pupils.” This means that moderately sized districts, those enrolling 2,000-4,000 students, can have an efficient per-pupil expenditure without sacrificing individualized teaching practices that result in optimal student performance. However, only four out of the 97 Vermont districts contain over 2,000 students.[9] To feasibly balance the optimal district population (according to national literature) with Vermont’s rural demographics, legislators compromised and decided on 900 students as the optimal district size under Act 46. On the side of economic efficiency, Act 46 seeks to rein in educational spending by setting allowable spending increases per district; citizens are taxed doubly for every dollar amount exceeding this limit. This sanction is balanced by the positive tax incentives to induce districts to consolidate. Act 46 outlines three paths to consolidation with varying deadlines, with the inducements being higher the sooner a district consolidates. Districts who follow the first path and merge by the 2017 deadline receive a 10-cent tax break per $100 of residential property within the district. This amount decreases by two cents annually over the next five years, greatly incentivizing districts to merge before 2022.[10] Inducements are a powerful policy tool for implementing rapid change, for districts will want to maximize their tax break potential. This method operates under the assumption that monetary measures are the best way to prompt change.[11] Since the main goal of Act 46 is to counter the heavy spending pressures that districts face, the use of inducements is well founded. Districts will be fiscally motivated to consolidate as they face the opportunity to save money in the short term while implementing a policy that will also help them save money in the long run. However, this policy tool presents a controversy because the allowable spending increases, tax benefits, and sanctions are top-down inducements. Stowe Representative Heidi Scheuermann, who staunchly opposes Act 46, argues that the law erodes the traditional power of local policymakers and school board members, impeding their ability to monitor their districts’ educational budgets. She states that the consolidation of budgetary power in the hands of legislators in the state’s capital moves the schooling system further away from providing for the diverse needs of individual students in Vermont’s varied districts.[12] It is natural for Scheuermann, as a Republican member of the state legislature, to be wary of increased state power over traditionally local matters. However, Act 46 is “designed to encourage and support local decisions and actions.”[13] The legislation balances the top-down economic inducements by providing district autonomy over which of the three phases of consolidation to enact. It also allows the districts autonomy on how to undergo the actual restructuring process. Furthermore, consolidation is neither mandated nor does the Act require districts to have over 900 students. The language merely states that the “state’s educational goals are best served” by this number.[14] The top-down voluntary size standards and fiscal inducements coupled with the bottom-up local control on how to meet these standards is reminiscent of President George W. Bush’s No Child Left Behind Act (NCLB). This 2001 policy operated on a “horse-trade” structure of a federal call for state authority on setting certain standards and designing teaching and testing practices to meet them.[15] Act 46 follows this federalism-preserving structure, but differs from NCLB in its focus on restructuring as the key to educational reform, instead of altering student and teacher standards. The restructuring movement, which emphasizes individual school-level administrative practices such as site-based-management (SBM), is popular with local school administrators and school board members, for it returns power to the local level. Often, school board members are proponents of the status quo in education policy; that is, they want to maintain the current policy monopoly that the majority of school districts nationwide have their budgets and administrative processes decided by a democratically elected school board.[16] School redistricting clearly differs from Vermont’s status quo, and the decreased number of districts will result in fewer school board positions and therefore a lower number of Vermonters who will have control over the educational system. However, because of the bottom-up autonomy that districts retain under Act 46, the Vermont School Board Association director, Nicole Mace, supports the law.[17] On the other hand, the Act’s top-down aspects appeal to powerful individuals in Montpelier, the state’s capital, who benefit from the increased state control. These individuals, such as Jeff Francis, who is the head of the Vermont Superintendents’ Association (VSA), are crucial to the law’s implementation. They have access to the media and can thus raise public awareness of the law. They also have leadership roles with state bureaucratic agencies such as the Department of Education and authority over local superintendents.[18] The VSA is also a proponent of Act 46 because superintendents statewide are expected to receive increased public approval for taking initiative in implementing a reform that touts both fiscal responsibility and educational opportunity. However, Act 46 could contribute to what Hess calls “policy churn” due to its support from the VSA. Since superintendents often have short tenures, averaging around three years, the results of the reforms they put in place but are often reaped once they out of office.[19] Even before the first phase of district consolidation goes into effect in 2017, the next governor or legislative body could decide that merging would not solve the state’s education budget concerns. Therefore, to ensure its full implementation over time, it is important that Act 46 is supported by the public, not just the policymakers and bureaucrats. The latter individuals could be more concerned with furthering their own personal political agendas rather than ensuring student welfare. The law is successful at garnering bipartisan support among Vermont voters and taxpayers. Although conservatives like Rep. Scheuermann are concerned with the increase in state power that comes with implementation, others would support the law’s primary aim of fiscal responsibility. On the other side of the aisle, liberals would tout the possibilities for increased student opportunity that comes with redistricting, especially for those on free and reduced lunch who may otherwise not have access to extracurricular enrichment opportunities. In 2015, a student had to turn down the opportunity to attend the University of Vermont under its full-ride Green & Gold merit scholarship because her high school did not offer the curriculum required for her to apply to the university.[20] Under Act 46, larger districts would be able to offer more specialized instruction, such as Advanced Placement, vocational education, and arts courses. This means that all Vermont students would have a more level playing field; achievement will not be limited to those who happen to live in districts with large high schools. Act 46 also succeeds in gaining widespread public support because of what Hess calls high visibility. Community awareness of the law is important because it impacts not just families with school-aged children, but every Vermonter due to the effect that the law has on their property taxes. The act’s high profile on the state agenda is evident in the community forums that supervisory unions have held across the state in the past year to explain the law’s contents. St. Johnsbury Academy, a high school in Caledonia County that serves students from more than 14 local districts, explained to taxpayers, through its community forum, that the school’s allowable tuition increase would be 1.95% (which is the average of all the sending towns’).[21] These opportunities for resident input and learning are important to foster support for a complicated economic bill that could have appeared to be the product of disassociated Montpelier politicians. Hess explains that another aspect of increasing visibility is symbolism: this new law gives the impression of grand change.[22] Even if residents do not fully understand the intricacies of the three phases of consolidation or the economic inducements, they can support the act’s ideals of opportunity, equality, local authority, fiscal responsibility, and unity despite geographic isolation. The Issue of School Choice Despite the law’s many benefits, one deeply-rooted Vermont ideal does not have a place in Act 46: school choice. In other areas, Act 46 is poised for success in implementation: it addresses an important fiscal issue, utilizes inducements as a policy tool, provides opportunities for student achievement, garners wide-ranging bipartisan support, and is highly visible. Yet Hess argues that successfully implemented policies should not only have high visibility, but also low controversy.[23] Granted, there is some disagreement as to Act 46’s success in the aforementioned areas. The conservative interest group Campaign for Vermont argues that the tax write-offs for residents in districts that merge will actually lead to higher educational spending, not lower.[24] Conservatives like Rep. Scheuermann are also concerned with the possible erosion of local control. However, the larger danger of losing local control does not come from Montpelier’s top-down mandates and inducements. The major source of controversy is the legislation’s unclear language about whether former choice towns that merge with non-choice towns will still provide tuition to allow families to send their children to schools outside the new district. Act 46, as currently written, states it will not change the way a district pays students’ tuition.[25] Many legislators and schools, such as St. Johnsbury Academy, interpreted this to mean that choice is only given up if the school board of a sending town chooses to mandate that all their resident students attend the new district schools.[26] However, the State Board of Education ruled that school choice towns cannot maintain their choice if they merge with a district with schools that offer those grades.[27] Therefore, there is a vast gulf between how the law was written and envisioned, and how it would be implemented. Act 46’s chances of success are greatly reduced if school choice is not maintained and the Vermont state legislature does not revise and clarify the law’s language to overturn the State Board of Education’s ruling. The preservation of this 140-year-old Vermont educational practice is essential because of its bipartisan support, symbolism, and educational opportunity. Vermont’s school choice system is designed so that school boards in towns that do not offer all K-12 grade levels must pay tuition for students to attend a public or approved secular, independent school outside of the town or district for those absent grades. It could be the case that a town has such a designated “sending school,” but a child is better served by attending a different school, for geographic or curricular reasons. In this situation, the parents can petition the school board to have the child’s tuition follow them to the other school.[28] This flexibility for students to move across districts is important because many schools are too small to offer a wide range of Advanced Placement or language courses.[29] Furthermore, Vermont is practically exempt from the provision of the federal No Child Left Behind act, that allows students to attend another school in the same district if their designated school does not meet the standards of adequate yearly progress toward excellence for two years. There are very few school districts in Vermont containing more than one school offering the same grade levels.[30] Without school choice, parents would have to change their place of residence to save their child from attending a failing school, putting families in a difficult situation. Choice also promotes community control; school boards are in charge of allotting tuition to the various sending schools and deciding if a town has a designated high school. Finally, choice connotes freedom and individualism; this symbolism appeals to both conservatives who value local government and family values, and liberals who want to provide equal opportunities. During the 2016 gubernatorial race, in the first debate between Republican Phil Scott and Democrat Sue Minter, both candidates expressed support for school choice, despite their differing views on Act 46 and the necessary steps needed to enhance the state’s public education system. Minter stood by the existing school choice system, but would counter its expansion. Scott, on the other hand, promised to expand school choice and lamented the fact that Act 46 curtailed a key Vermont value.[31] In the first year of implementation, residents of 55 school districts voted on merging into larger districts. The results varied, with several districts on the western side of the state in Chittenden County touting successful merger votes. John Castle, superintendent of the North Country Supervisory Union, explained that this success, which came from the most densely populated section of Vermont, is due to its “different ethos and cultural disparities” compared to other, rural areas of the state. He cites a fear among residents of rural districts like Orleans Central and Franklin Northeast, a particularly isolated district along the Canadian border, that a merger will bring with it a sense of loss of community identity and history.[32] Three districts have defeated the proposal entirely. However, the majority of districts remain at an irresolute intermediary stage, while merger study and exploratory committees try to decide how best to balance the needs of taxpayers and students with the district’s budget.[33] The unification study committee report for the Franklin Northeast Supervisory Union, a district that ultimately failed to pass the Act, outlines the changes to school choice that the merger would entail. Students from the three districts who are currently enrolled in grades 9-12 for the 2016-17 school year would be “grandfathered”: their tuition dollars would follow them and allow them the choice to attend their current school, even if it is out of district. However, successful passage of Act 46 would bring an end to choice at the close of the 2019-20 school year.[34] Including those in Franklin Northeast, four out of fifteen towns that have rejected merger proposals offer school choice.[35] Members of the State GOP, led by House Minority Leader Don Turner, have called for a reconsideration of the bill to permit “communities the ability to keep their school choice and still merge with non-school choice towns.” While this would be the best solution for constituent support and educational opportunity, not all actors find this feasible. Nicole Mace of the Vermont School Boards Association and Jess Francis of the Vermont Superintendents Association argue that the state will face an added cost by providing tuition for choice while also operating all K-12 grade levels within the same district.[36] They believe this will exacerbate the problems of the high education budget that Act 46 seeks to repair. Apart from the argument to not amend Act 46 as currently written, skeptics could also look to test scores to argue in favor of rescinding the law entirely. Vermont’s scores on the 2015 National Assessment of Educational Progress (NAEP) test continue to rank among those of the top 10 states in the country. The only state higher in 4th grade reading is Massachusetts (with no state topping Vermont in 8th grade reading) and the achievement gap between students on Free and Reduced Lunch and those who are not is much lower in Vermont than the national average.[37] One of the main goals of Act 46 is to enhance student achievement. However, students are already successful. So, why change the system? However, school district consolidation under Act 46 is concerned with a different kind of success - not the kind that can be measured through standardized test scores. The law allows for districts to provide extra-curricular and advanced curricular opportunities—the arts, sports, foreign language, Advanced Placement courses—to isolated, rural students who may not otherwise have access to academic enrichment. While Act 46 is an economic policy and its main goal is to rein in the education budget, lawmakers and constituents must not forget that the primary aim of any policy affecting schoolchildren and their families is to provide students with the best educational experiences and opportunities for success. School choice is an essential component of widening rural children’s academic and social experiences. Milton Friedman writes that school choice promotes a “healthy intermingling” of students from varied racial and socioeconomic backgrounds.[38] At St. Johnsbury Academy, students from the more than 14 sending districts in Vermont and New Hampshire[39] attend classes with hundreds of domestic and international boarding students. If Act 46 were to discontinue school choice, local students from one town could be arbitrarily designated to attend an inferior or less diverse secondary school, merely because of the way the redistricting lines were drawn. While the Vermonters arguing for school choice are mainly fueled by tradition and desire for educational opportunity, Secretary of Education Betsy DeVos supports school choice as a way to limit federal involvement in education.[40] The Trump administration’s position on school choice differs from that of the Obama and Bush administrations. The former sees it as a way to flee struggling public schools while the latter focus on increasing accountability and raising test scores for public schools. This past concentration on improving public schools is logical—even though 37% of students in 2012 had school choice available to them, the vast majority of parents (77%) reported that the public school assigned to their neighborhood or school district was their first choice of school.[41] Despite the fact that the majority of Americans favor their local public school, Vermont’s low population density, history of school choice and disparity in classes and programs offered, places the state in a very different position. This highlights the importance of maintaining school choice in Vermont, even if the majority of Americans don’t utilize the option. As the VBSA and VSA debate the fiscal difficulties of the mutual coexistence of choice and district merging, they must remember that the success of Act 46 depends on its low controversy among its constituencies. If parents cannot preserve choice for their children, Act 46 will be nearly impossible to implement statewide. Endnotes [1] Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . [2] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [3] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [4] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [5] Vermont Department of Education. 2013. Town and Unified Union School Districts Tuitioning One or more Grades. Retrieved from http://education.vermont.gov/documents/EDU-Town_and_Unified_School_Districts_Tuitioning_One_or_More_Grades.pdf [6] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [7] United States Census Bureau. 2014. Vermont Quickfacts. Retrieved from http://quickfacts.census.gov/qfd/states/50000.html . [8] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [9] Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . [10] Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . [11] McDonnell, Lorraine M., and Richard F. Elmore 1987. Getting the Job Done: Alternative Policy Instruments. Educational Evaluation and Policy Analysis, Vol. 9, No. 2 (Summer, 1987), pp. 133-152. [12] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [13] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [14] Vermont Agency of Education. 2015b. Clarification on Act 46 Size Requirements. Retrieved from http://education.vermont.gov/documents/edu-act46-size-requirement-clarification.pdf . [15] Fuhrman, Susan H. 2003. Ridings Waves, Trading Horses: The Twenty-Year Effort to Reform Education. In Gordon, David T. & Graham, Patricia A., A Nation Reformed: American Education 20 Years After A Nation at Risk. (pp. 7-22). Cambridge, Ma: Harvard Education Press. [16] Papay, John. 2015. The Role of Research in Educational Politics and Policymaking [PowerPoint slides]. Retrieved from https://canvas.brown.edu/courses/1018282/files/folder/Class%2520Slides?preview=53833383 . [17] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [18] Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . [19] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [20] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [21] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [22] Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. [23] Ibid. [24] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [25] Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . [26] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [27] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [28] School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . [29] Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. [30] School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . [31] Danitz Pache, Tiffany. 2016a. “In First Debate, Minter, Scott Clash on Act 46 and School Choice.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/23/in-first-debate-minter-scott-clash-on-act-46-and-school-choice/ . [32] Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . [33] Vermont School Boards Association. 2016. Act 46 Map. Retrieved from http://www.vtvsba.org/act-46-map . [34] Franklin Northeast Supervisory Union Study Committee. 2016. Study Committee Report Franklin Northeast. Vermont Agency of Education. Retrieved from http://education.vermont.gov/sites/aoe/files/documents/edu-study-committee-report-franklin-northeast.pdf . [35] Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . [36] Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . [37] Vermont Agency of Education. 2015c. Reading and Math Scores Remain Among Best in the Nation. Retrieved from http://education.vermont.gov/documents/edu-press-release-naep-scores-2015.pdf . [38] Friedman, Milton. 1962. Capitalism and Freedom. Chicago, IL: University of Chicago Press. [39] St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 [40] Strauss, Valerie. 2017. “What ‘school choice’ means in the era of Trump and DeVos. The Washington Post. Retrieved from https://www.washingtonpost.com/news/answer-sheet/wp/2017/05/22/what-school-choice-means-in-the-era-of-trump-and-devos/?utm_term=.b998a14bff38 [41] U.S. Department of Education, National Center for Education Statistics. (2018). Digest of Education Statistics, 2016 (NCES 2017-094), Table 206.40 . Works Cited Baker, Bruce D. and Wendy I. Geller. 2015. “When is Small Too Small? Efficiency, Equity & the Organization of Vermont Public Schools.” Vermont Agency of Education & Rutgers University. Retrieved from http://education.vermont.gov/documents/EDU-bbaker-vtconsolidation-march2_20152.pdf . Danitz Pache, Tiffany. 2015a. “Campaign for Vermont Calls for Repeal of Act 46.” Vermont Digger. Retrieved from http://vtdigger.org/2015/09/07/campaign-for-vermont-calls-for-repeal-of-act-46/ . Danitz Pache, Tiffany 2015b. “State GOP Leaders Call for Clarification of Act 46 Impact on Private Schools.” Vermont Digger. Retrieved from http://vtdigger.org/2015/10/26/state-gop-leaders-call-for-clarification-of-act-46-impact-on-private-schools/ . Danitz Pache, Tiffany. 2016a. “In First Debate, Minter, Scott Clash on Act 46 and School Choice.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/23/in-first-debate-minter-scott-clash-on-act-46-and-school-choice/ . Danitz Pache, Tiffany. 2016b. “Act 46 by the Numbers: Merger Votes are In.” Vermont Digger. Retrieved from http://vtdigger.org/2016/08/14/act-46-by-the-numbers-merger-votes-are-in/ . Franklin Northeast Supervisory Union Study Committee. 2016. Study Committee Report Franklin Northeast. Vermont Agency of Education. Retrieved from http://education.vermont.gov/sites/aoe/files/documents/edu-study-committee-report-franklin-northeast.pdf . Friedman, Milton. 1962. Capitalism and Freedom. Chicago, IL: University of Chicago Press. Hess, Frederick M. 1999. “A Political Explanation of Policy Selection: The Case of Urban School Reform.” Policy Studies Journal, 27 (3), 459-473. Fuhrman, Susan H. 2003. Ridings Waves, Trading Horses: The Twenty-Year Effort to Reform Education. In Gordon, David T. & Graham, Patricia A., A Nation Reformed: American Education 20 Years After A Nation at Risk. (pp. 7-22). Cambridge, Ma: Harvard Education Press. Kinzel, Bob and Rick Cengeri. 2015. Getting Act 46 Together. Vermont Edition [Radio Broadcast]. Montpelier, VT: Vermont Public Radio. McDonnell, Lorraine M., and Richard F. Elmore 1987. Getting the Job Done: Alternative Policy Instruments. Educational Evaluation and Policy Analysis, Vol. 9, No. 2 (Summer, 1987), pp. 133-152. Papay, John. 2015. The Role of Research in Educational Politics and Policymaking [PowerPoint slides]. Retrieved from https://canvas.brown.edu/courses/1018282/files/folder/Class%2520Slides?preview=53833383 . School Choice Vermont. 2015. Tuitioning and School Choice, and Access to Independent Schools in VT. The Legal Basics. Retrieved from http://www.schoolchoicevermont.com/choice-in-vt.html . Strauss, Valerie. 2017. “What ‘school choice’ means in the era of Trump and DeVos. The Washington Post. Retrieved from https://www.washingtonpost.com/news/answer-sheet/wp/2017/05/22/what-school-choice-means-in-the-era-of-trump-and-devos/?utm_term=.b998a14bff38 . St. Johnsbury Academy. 2015. SJA and Act 46. Retrieved from http://www.stjacademy.org/page.cfm?p=238&newsid=2773&ncat=11,10,9,4,7,12 Vermont Act No. 46: An act relating to making amendments to education funding, education spending, and education governance. Vt. Gen. Assemb. B. 46 (2015). Vermont Agency of Education. 2015a. Act 46 of 2015 Fact Sheet. Retrieved from http://education.vermont.gov/documents/edu-act46-fact-sheet.pdf . Vermont Agency of Education. 2015b. Clarification on Act 46 Size Requirements. Retrieved from http://education.vermont.gov/documents/edu-act46-size-requirement-clarification.pdf . Vermont Agency of Education. 2015c. Reading and Math Scores Remain Among Best in the Nation. Retrieved from http://education.vermont.gov/documents/edu-press-release-naep-scores-2015.pdf . Vermont Department of Education. 2013. Town and Unified Union School Districts Tuitioning One or more Grades. Retrieved from http://education.vermont.gov/documents/EDU-Town_and_Unified_School_Districts_Tuitioning_One_or_More_Grades.pdf . Vermont School Boards Association. 2016. Act 46 Map. Retrieved from http://www.vtvsba.org/act-46-map . United States Census Bureau. 2014. Vermont Quickfacts. Retrieved from http://quickfacts.census.gov/qfd/states/50000.html . U.S. Department of Education, National Center for Education Statistics. (2018). Digest of Education Statistics, 2016 (NCES 2017-094), Table 206.40 .

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Statelessness A Contradiction in International Law with Asymmetrical Regional Solutions Samantha Altschuler Brown University Author Ginevra Bulgari Vance Kelly Lillian Schoeller Editors Fall 2018 An analysis of statelessness and its difficulties as explored by case studies on Slovenia and Myanmar. “Witness accounts, satellite imagery and data, and photo and video evidence gathered by Amnesty International all point to the same conclusion,” contends Amnesty International. They continue, “Hundreds of thousands of Rohingya women, men, and children have been the victims of a widespread and systematic attack, amounting to crimes against humanity."[1] How exactly is a state able to perpetrate these crimes against its own citizens in the human rights age without consequence? The answer lies in the word “citizen.” According to Myanmar’s domestic law, the Rohingya are no longer considered citizens and thus do not hold the rights of citizens. They belong to no nation, are protected by no law. They are stateless. Introduction The phenomenon of statelessness has plagued the international community since the end of World War I. This paper investigates why, despite the rise of the human rights and refugee regimes, the issue of statelessness remains unsolved. To do so, it will review the legal reality of statelessness and then argue that there exists a fundamental contradiction in international law that makes statelessness uniquely difficult to address. This contradiction, which arises from international law simultaneously protecting the individual’s human right to nationality and the state’s right to determine its nationals according to domestic law, creates the opportunity to render peoples stateless. This paper will then examine two key case studies: Slovenia will represent a successful handling of statelessness while Myanmar will demonstrate a failure. After analyzing the similarities and differences between the two cases, this paper will suggest that given the legal ambiguity surrounding statelessness, the successful resolution of statelessness depends on the values and interests of the regional supranational organization to which the state in question belongs. Those regions that, shaped by their geographies and histories, are characterized by values and interests that support human rights and intervention are more likely to resolve issues of statelessness; those regions that place a higher value on sovereignty and have interests in non-intervention will be far less likely to intervene in states’ internal affairs. Defining Statelessness At this point, it becomes necessary to legally distinguish the stateless person from the refugee or internally displaced person (IDP). The refugee is legally defined as someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country."[2] Refugees, in short, are citizens who fled their states for fear of persecution. Once outside their state, however, they are well protected under clear and strong international law. This is not to say that all states always uphold their obligations to protect refugees, but that legally the refugee outside his nation is entitled to safe asylum, medical care, schooling, work, and basic human rights and freedoms as would be extended to any other foreign legal resident.[3] An IDP is a citizen forced to relocate within his or her state “to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters.”[4] IDPs, by definition, cannot have crossed an international border. Unlike refugees who are outside their state and entitled to international protections, IDPs “being inside their country, remain entitled to all the rights and guarantees as citizens and other habitual residents of their country. As such, national authorities have the primary responsibility to prevent forced displacement and to protect IDPs.”[5] The 1948 Study on Statelessness conducted by the United Nations Ad Hoc Committee on Refugees and Stateless Persons defines the stateless as “persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one.”[6] The stateless, without citizenship, do not qualify as refugees or IDPs. Accordingly, they are not entitled to international refugee protections, nor are they protected by any state. Furthermore, acquisition of citizenship is not so simple as the above report might suggest; domestic laws often ban particular groups, primarily ethnic minorities, from acquiring citizenship. The domestic procedures for conferring citizenship are unique to each state, but typically include some combination of jus sanguinis and jus soli, that is right of blood (citizenship granted by parentage) and right of soil (granted by birth in the territory). Jus sanguinis laws prove particularly problematic, as they frequently serve to determine nationality along ethnic lines and in doing so render ethnic minorities stateless. The Difficulty: Contradiction in International Law The fundamental contradiction that allows for statelessness lies in the simultaneous sanctity under international law of the universal human right to nationality and the state’s sovereign right to determine its citizenship. The right to a nationality is upheld in the Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Nationality of Married Women, the Convention on the Rights of Persons with Disabilities, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.[7] Furthermore, many international bodies and covenants assert that the right to a nationality protects against arbitrary deprivation of citizenship. The UDHR claims “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[8] The ICCPR too holds that “No one shall be arbitrarily deprived the right to enter his own country.”[9] The ICERD further enshrines the “right to leave any country, including one’s own, and return to one’s country.”[10] In 2009, the United Nations Human Rights Council prepared a report on behalf of UN Secretary-General on “human rights and the arbitrary deprivation of nationality.” This report advocates, “The prohibition of arbitrary deprivation of nationality, which aims at protecting the right to nationality, is implicit in provisions of human rights treaties that prescribe specific forms of discrimination.”[11] Article 27 states, “Deprivation of nationality resulting in statelessness would generally be arbitrary unless it served a legitimate purpose and complied with the principle of proportionality.”[12] There is evidently no shortage of international conventions honoring the right to nationality and protection from arbitrary deprivation. At the same, however, international law grants the state the right to determine who is and is not a national. The Convention on Certain Questions Relating to Nationality law holds that “It is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”[13] The latter part of this 1st Article is rather confusing; which international conventions, customs, and principles it refers to is unclear. The case could and has be made by supporters of the human rights regime that it refers to international law discussed above. This would mean that states’ right to determine nationals would defer to international conventions protecting the right to nationality and protection from arbitrary deprivation. The opposite argument, favoring state sovereignty and the abundance of law protecting it, is bolstered by Article 2 of the same Convention, which states, “Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.”[14] This lack of clarity and the soundness of both arguments allow for each state to choose whether or not to act in accordance with conventions protecting against statelessness, and for other states in the global community to interpret whether or not they consider those acts legal. Many attempts have been made to reconcile the legal disconnect between the universal right to nationality and the domestic right of the state to determine its nationals. One such example is Special Rapporteur Córdova’s Report on Elimination or Reduction of Statelessness for the International Law Commission written in 1953. In Article 14, Córdova writes that “international law may also restrict the authority of the State to deprive a person of its own nationality. There are cases in which international law considers that a certain national legislation is not legal because it comes into conflict with the broader interests of the international community.”[15] Article 15 further clarifies that “the right of individual States to legislate in matters of nationality is dependent upon and subordinate to the rules of international law on the subject, and that, therefore, these questions of nationality are not, as has been argued, entirely reserved for the exclusive jurisdiction of the individual States themselves.”[16] These statements, however, remain both controversial and difficult to enforce. While the spirit of international law is arguably in line with Córdova’s call for states to defer to international convention, the letter of the law protects the sovereignty of states and does not directly address the gap between the individual right to nationality and the state’s right to determine citizenship. Paul Weis, co-author of the Convention Relating to the Status of Refugees, explains in his now standard work Nationality and Statelessness in International Law: “to the extent that there are no rules of international law imposing a duty on States to confer their nationality, and few, if any, rules denying or restricting the right of States to withdraw their nationality, one may say that statelessness is not inconsistent with international law.”[17] Without international law instructing the state to create in its domestic law a standard set of rules regarding citizenship, Córdova’s report is easily ignored or contested. Any such laws would constitute a breach of state sovereignty and it is extremely unlikely they will ever arise, at least in any form other than purely voluntary guidelines. Thus, the contradiction between the right of the individual and the right of the state remains, and with it the opportunity for states to deprive unwanted individuals, mainly ethnic minorities, of citizenship. Recognizing the weakness of international law concerning statelessness, the UN established the 1954 Convention relating to Status of Stateless Persons. Rather than address the cause of the problem by attempting to impose duties or restrictions on states, the Convention instead focused on easing the symptoms. According to the UNHCR, the “1954 Convention is designed to ensure that stateless people enjoy a minimum set of human rights.”[18] These rights, as will be discussed at greater length in the case studies below, are far from upheld. The 1961 Convention on the Reduction of Statelessness, on the other hand, actually attempted to address the root of the problem by providing something very close to the laws Weis referred to as non-existent. It “requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life… establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality” and “sets out important safeguards to prevent statelessness due to loss or renunciation of nationality and state succession.”[19] This convention represents the most direct attempt to combat statelessness but has unfortunately been met with minimal success. Unsurprisingly, states were slow to forgo their right to determine citizenship. Only 61 states are party, as compared to the 83 that are party to the 54 Convention. Further, the two states that will now be discussed as case studies are not party to the convention, highlighting the weakness of protections for the stateless. Case Studies Having established that international law does not conclusively protect against statelessness, the question arises as to why statelessness is successfully addressed in some cases and not in others. In answering this question, this paper next presents an example of the successful resolution of an issue of statelessness, which occurred in Slovenia, and an example of the devastating consequences of statelessness left unresolved, which is currently occurring with the Rohingya people in Myanmar. While these two cases, of course, represent only two examples of statelessness, they were selected specifically to represent the two opposite ends of the spectrum, success and failure. Case Study 1: Slovenia The Republic of Slovenia is a rather young state, having only gained independence in 1991 amidst the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY). The Slovene desire for independence, however, stretches back much further. The ethnically Slovene people (not to be confused with the “Slovenian”, meaning of Slovenia) have throughout history belonged to various states and empires, including the Roman Empire, the Holy Roman Empire, and the Habsburg Monarchy. After World War I, Slovenes for the first time attained a degree of independence through participation in the formation of the State of Slovenes, Croats and Serbs. The State of Slovenes, Croats and Serbs later joined with Serbia to become the Kingdom of Serbs, Croats and Slovenes, which was renamed the Kingdom of Yugoslavia in 1929. After occupation by Germany, Hungary, and Italy during World War II, Slovenia joined the SFRY. Under the rule of Josip Tito, Slovenia enjoyed considerable economic rights and freedoms that allowed their economy to flourish. Upon Tito’s death, politicians across the SFRY, most notably Slobodan Milosevic, mobilized support by taking advantage of existing ethnic hostilities. In addition to ethnic tension, the Slovenes felt exploited by the SFRY, which redistributed the fruit of their economic success to support the less successful economies of other SFRY republics. Slovenia held a referendum in 1990 and became independent in June of 1991. a. Rendering Stateless: Domestic Citizenship Law The history of subordination instilled in Slovenes the desire for not only independence but also the establishment of a national identity. After discontent with the communist and multi-ethnic SFRY, Slovenia was quick to write its independence into law with the drafting of a new constitution for a democratic and ethnically homogenous state. As occurred in many post-Yugoslav states, Slovenia’s constitution and citizenship laws defined the emergent state along ethnic lines. The preamble to Slovenia’s constitution invokes the identity of the majority ethnic group, Slovenes, reading “[Proceeding…] from the historical fact that in a centuries-long struggle for national liberation we Slovenes have established our national identity and asserted our statehood.”[20] Igor Štiks describes the way Slovenia drafted their new legislation, saying, “[W]hat initially presented itself as ethnic solidarity and a nationalist vision of recomposition of previously existed communities into neatly divided ethnocultural groups governing ‘their’ territory was soon enshrined in legislation” through the use of “citizenship laws as an effective tool for ethnic engineering.”[21] Under the SFRY system, each citizen held citizenship both to the SFRY and to one of its republics. The same month they achieved independence, June of 1991, Slovenia adopted the Citizenship Act of the Republic of Slovenia. The Act provided that those individuals who held both SFRY and Slovenian citizenship prior to the referendum on independence in 1990 (a year before Slovenia was actually independent) were automatically considered citizens. Those who were not had a six-month period to apply for citizenship, after which they would become illegal aliens.[22] While on its face this law may seem innocent enough, Štiks explains, “[T]he law itself becomes quite controversial when we consider that it enabled policies of ethnic engineering.”[23] After the six months passed, those who had not acquired citizenship, either because they had not applied or had not been approved, were rendered stateless. Slovenia now recognizes it left 18,205 people stateless, while the European Court of Human Rights places the number at 25,671.[24] Many of these citizens never applied for citizenship because they were born in Slovenia and assumed jus soli they were citizens, because they were simply unaware of the law at all, or because they did not understand it applied to them.[25] Others did attempt to apply, but were limited by the “short application period of six months, confusing procedures, numerous difficulties in obtaining all necessary documents at the moment of Yugoslavia’s break-up and subsequent escalation of violence, and finally by the overall political confusion since Slovenia was still legally part of the SFRY and was not internationally recognized until January 1992.”[26] Another group had their applications denied, for example, for failing to satisfy the requirement that they not “endanger public order”[27] (which was not defined) or that they possess “assured residence and sufficient income that guarantees material and social security.”[28] The government did not provide notification or explanation to those in danger of losing citizenship. Štiks explains that this “confusion was only partly the product of an unstable political context” and that the government in reality “created confusion intentionally. Arbitrariness could be found in many of the legal prescriptions and actual administrative practices, and was clearly part of a general strategy” under which “the citizenship laws and the procedures for acquiring new citizenship proved to be the main weapon of administrative ethnic engineering.”[29] The result was that those of ethnically Slovene descent were accepted jus sanguinis as citizens, while thousands of ethnic minorities, despite being born in Slovenia or having extended residence, were denied. Those ethnic minorities who did not acquire Slovenian citizenship were literally erased from the national registries overnight. “Their documents (e.g. passports, driver’s licenses and IDs) were invalidated. They lost all civic and social rights, jobs, health care and social benefits, and became ‘dead’ from an administrative point of view – they were izbrisani, i.e. erased.”[30] To be dead from an administrative point of view has very tangible consequences. Losing their citizenship meant the loss of both health care and legal employment, which in turn drove many to homelessness.[31] b. Domestic Response: Judicial Failure Though Slovenia enjoys a highly functioning judicial system, the numerous attempts of stateless peoples to bring their case to Constitutional Court saw very little success. In 1999, the Constitutional Court did find the Citizenship Act illegal and called on the legislature to correct it.[32] However, when legislation to do so was drafted, voter turnout was “less than a third of the 1.6 million electorate, and the Act was rejected by almost 95 percent.”[33] Mild, yet certainly insufficient, progress came in the form of an amendment to the Citizenship Act in 2002 creating a new article stating that “An adult may obtain Slovenian citizenship if he or she is of Slovenian descent through at least one parent and if his or her citizenship in the Republic of Slovenia has ceased due to release, renunciation, or deprivation or because the person had not acquired Slovenian citizenship due to his historical circumstances.”[34] Essentially, this amendment provided the option for ethnic Slovenes who had been rendered stateless in the confusion of 1991 to reclaim citizenship. It did nothing, however, for those who had been born in Slovenia to non-Slovene parents and thereby required citizenship jus soli. For these individuals, the new law introduced naturalization, which required the applicant “have lived in Slovenia for ten years,” “not constitute a threat to public order,” “fulfill his or her tax obligations and has a guaranteed permanent source of income,” and possess the “required knowledge of the Slovene language.”[35] This last requirement included a language examination where none existed before. Many of the stateless possessed insufficient mastery of the language, their first languages being Croatian, Serbian, Italian or Hungarian.[36] These requirements provided opportunity for ethnic discrimination, both obviously in the language examination and more subtly via the undefined “threat to public order.” c. International Response: Regional Intervention In 2006, the case of the stateless of Slovenia was brought before the European Court of Human Rights. After deliberation, the Court found “in July 2010 that Slovenia had violated the right to private life under article 8 of the European Convention on Human Rights.”[37] Slovenia appealed and the case was taken up by the Grand Chamber, which held in July 2011 that Slovenia had breached Article 8, as well as Article 14, prohibiting discrimination, and Article 13, the right to an effective remedy.[38] The Court “ordered Slovenia to pay between €29,400 and €72,770 to each of the six applicants in the case,” which amounted to “€150 per person per month” [39] spent stateless. While this case represented only a handful of the erased, it has set both legal and normative precedent for other stateless persons of Slovenia, who now have 65 cases pending. [40] James Goldstone, executive director of the Open Society Justice Initiative, remarked, “This decision should enable thousands of the ‘erased’ to finally receive legal recognition…the judgment represents an important milestone in strengthening international norms against statelessness.”[41] Case Study 2: Myanmar “The word ‘Rohingya’ is a historical name for the Muslim Arakanese.”[42] Arakanese refers to the region formerly called Arakan, now a territory of Myanmar known as the Rakhine State. Arakan experienced periods of independence and domination until 1784, when it was “formally annexed by the Kingdom of Burma.”[43] This annexation later brought the ire of the British, who also had interest in the region. This resulted in the First Anglo-Burmese War, lasting from 1824 to 1826. It is important to note that this date of 1824 is now used in Myanmar as the marker of colonial rule. Research Professor Azeem Ibrahim explains, “Up to this point in time, the histories of Burma and Arakan were largely separate...”[44] A series of Anglo-Burmese wars thereafter ended in further British conquerings and their establishing “a clear division between a central region dominated by the Burman majority and outlying regions in which a complex patchwork of ethnic groups lived alongside one another.”[45] The ethnic origins of the Rohingya have recently been questioned. One group, including Ibrahim, contends “the Rohingyas settled in Burma in the ninth century, which, through the ages, have mixed with Bengalis, Persians, Moghuls, Turks, and Pathans, in line with the historically pluralistic population of Arakan State,” while the other considers them to be “illegal Chittagonian Bengalis who arrived as a by-product of British colonial rule.”[46] Unfortunately for the Rohinyga, the latter view has become widely accepted in Myanmar. In addition to being considered foreign, the association with British colonial rule is dangerous for the Rohingya. The British placed the ethnically Burmese Buddhist majority lower on the hierarchy during their rule than the Rohingya Muslims.[47] The Burmese deeply resented their inferior status, colonial rule, and the preferential treatment bestowed upon the Rohingya. Additionally, the Rohingya supported the British occupation. Ibrahim identifies this historical “link between religion, ethnicity and anti-British sentiment” as having a “profound influence”[48] in creating the intense ethnic hatred felt toward the Rohingya today. During World War II, Japan invaded and took over the region from the British. While the ethnic Burmese ranged from indifferent to supportive of the Japanese, the Rohingya supported British rule. This further heightened ethnic tensions in the area. The British recruited soldiers from both the Rohingya and ethnically Burmese, promising both groups independence after the war in exchange for their service. General Aung San famously led the Burmese to fight, first for the Japanese who made similar promises for independence, then later for the British. When Burma became independent in 1948, the Rohingya petitioned to join the Muslim state of East Pakistan. The petition was rejected, but had the effect of leading the “Burmese authorities to regard the Muslim population of Arakan as hostile to the new regime and to see them as outsiders whose loyalty lay with a different state. These events helped create a belief that only Buddhists could really be part of the new state.”[49] Burma’s history has been complex since achieving independence, but for the sake of brevity, it is here heavily condensed. Burma experienced a short period of democracy wracked with ethnic conflict and civil strife. General Ne Win first established a caretaker government, then later launched a military overthrow in 1962. Under military rule, Burma met protest and opposition with arrest and violence. In 1988, amid severe unrest, Ne Win stepped down. Student protests were met with police brutality, triggering demonstrations and further protests that were in turn met with military-grade violence. After a period of chaos and revolutionary fervor, General Saw Maung lead a coup, became Prime Minister, and instituted martial law. It was in 1989 that the military government changed the state’s name to Myanmar. Notably, in 1991, Aung San Suu Kyi, daughter of famed General Aung San who had helped bring independence but was assassinated before it was realized, received the Nobel Peace Prize while under house arrest for her words regarding peaceful reform. Throughout the 2000s, the military government made several small steps to ease Myanmar into democracy, culminating in 2011 with political reform and the release of Suu Kyi from house arrest. Under the new democracy, Suu Kyi won a seat in parliament in 2012. She was elected to the presidency in 2015, but is constitutionally barred from the presidency. She is the de facto state leader, but called officially “State Counselor.” a. Rendered Stateless: Domestic Citizenship Law It was during the time of unrest in 1974 that an intense need to divert public dissatisfaction resulted in the Emergency Immigration Act. The Act “imposed ethnicity-based cards (National Registration Certificates), with the Rohingya only being eligible for Foreign Registration Cards (non-national cards).”[50] These cards represented the first step in depriving the Rohingya of their citizenship. The 1974 Constitution of the Socialist Republic of the Union of Burma then defined citizenship jus sanguinis, giving it to those whose parents were citizens in 1947 – a time when the Rohingya were not formally citizens (as they had never been required to register, given their assumed citizenship jus soli).[51] Finally, in 1982, the Burmese Citizenship Law created categories of citizenship grouped by ethnicity. The groups were meant to align with length of bloodline prior to 1824 (the date marking the start of colonial rule). If a group was not considered indigenous prior to British rule, they were declared foreigners. This is what happened to the Rohingya, who subsequently became stateless. The Law includes steps for naturalization, but as Ibrahim explains, “[T]he one category that is excluded is someone born to two parents neither of whom are already citizens (the Rohingyas are therefore, by definition, excluded).”[52] In the most recent census (2015), “Rohingya” was not listed among the 135 ethnic groups, and their status as illegal residents was cemented. The stateless Rohingya have been systematically abused for decades, but in 2012 there was an incident wherein an ethnically Burmese Buddhist woman was raped by a Muslim Rohingya man that escalated the crisis.[53] Violence against the Rohingya became severe and their status as stateless both intensified the hatred directed towards them (as it confirmed their status as illegal Bangladeshis) and left them without legal protection or recourse. For his report for the Journal of Contemporary Criminal Justice, Ullah conducted 29 interviews with Rohingya. He found the situation far worse than the lack of income or healthcare experienced by the erased in Slovenia. Rohingya women explained how their “status of statelessness makes them vulnerable to sexual attack at different levels by pirates, bandits, members of the security forces, smugglers, or other refugees.”[54] One interviewee, Mr. Kalam, explains his experience as follows: "We were born on this soil but we are called illegal migrants....my family is from Maungdaw, but we left a few days later the NaSaKa people raped my sister in front of my family members. My brother in-law tried to resist them but he was taken away by them and he never returned. They told us if we didn’t leave Myanmar they would kill us all brutally."[55] In October of 2017, Amnesty International reported that over 530,00 Rohingya attempted to flee the country.[56] Given Myanmar’s geographic position, that journey requires them to brave the sea. Ullah’s interviewees describe the danger of the journey, which included starvation, beatings, and observed suicide of many who threw themselves overboard.[57] Those who survived the crossing were often treated no better upon arrival. Human Rights Watch issued a report in 2009 entitled “Perilous Plight” following the emergence of graphic images of a group of Rohingya on board a boat from Myanmar to Thailand.[58] The report discusses “Thailand’s callous ‘push-back’ policy,"[59] calling out the Thai government for “saying that the Rohingya were economic migrants, not refugees, and that Thailand could not absorb the flow.”[60] Worse than sending the Rohingya back to Myanmar (which would breach non-refoulement laws if the Rohingya were legally refugees[61] , [62] ) is the reality that “In May 2015, gruesome mass graves were unearthed in southern Thailand, revealing scores of bodies belonging to mostly Rohingya refugees.”[63] The Rohingya represent the very worst possible outcome of statelessness. They exemplify the way in which a people without citizenship or refugee status become vulnerable. This vulnerability, when applied to a despised people, results in some of humanity’s darkest crimes, many of which are now being identified as ethnic cleansing[64] and crimes against humanity.[65] b. Domestic Response: Endorsement and Ignorance As described, there is an abundance of evidence supporting the fact that the violence against the Rohingya is state-sponsored. Ullah calls it “organized, incited, and committed by local political party operatives, the Buddhist monkhood, and ordinary Arakanese, directly supported by state security forces.”[66] There is no functioning judicial infrastructure to speak of in Myanmar, though if there were it would be useless given the intermittent application of martial law. Suu Kyi, to the great disappointment of the West who honored her with the Nobel Peace Prize, has been largely silent and apathetic regarding the Rohingya. She avoids using the word “Rohingya” in interviews, mentioning it only in connection with the Arakan Rohingya Salvation Army, a Rohingya resistance group, which she claims commits acts of terrorism.[67] In one interview, Suu Kyi downplayed the crisis to such an extent that she referred to it as a “quarrel.”[68] When cornered by the media, she claims the West exaggerates the crisis.[69] Furthermore, the government of Myanmar has been accused of interfering with humanitarian aid meant for the Rohingya. The Rahkine National Party spokesperson justified restricting the aid supply as follows: “When the international community give them [Rohingya] a lot of food and a lot of donations, they will grow fat and become stronger, and they will become more violent.”[70] In keeping with this logic, borders were shut to international agencies attempting to help the Rohingya, such as Médecins Sans Frontiéres (the French branch of the NGO Doctors Without Borders), in what the ISCI calls deliberate “state actions designed to systematically weaken the Rohingya community.”[71] c. International Response: Non-Intervention The international response has largely been that of naming and shaming. Both Amnesty International[72] and Human Rights Watch[73] have labeled the abuses in Myanmar as Crimes Against Humanity. The US has responded with words of condemnation. Rex Tillerson, US Secretary of State, stated in November of 2017, "These abuses by some among the Burmese military, security forces, and local vigilantes have caused tremendous suffering... After a careful and thorough analysis of available facts, it is clear that the situation in northern Rakhine state constitutes ethnic cleansing against the Rohingya."[74] Yet, the only action taken has come in the form of diplomatic visits, verbal urges, and sanctions that were lifted in 2015. The European Union also lifted their sanctions in 2013 (except for an arms embargo). The UN has crafted reports and condemnations, but there has been no mention of action beyond the normative sphere. The UN has plans drafted for providing the Rohingya in Bangladesh with resources and aid,[75] but despite the talk of crimes against humanity and ethnic cleansing, there has been no movement in the General Assembly toward humanitarian intervention beyond aid. On the regional level, Myanmar is a member of the new supranational organization ASEAN (Association of Southeast Asian Nations). The 30th ASEAN Summit in April of 2017 notably did not include the crisis in Myanmar on its agenda and made no mention of it throughout the entirety of the Summit.[76] According to an article from The Diplomat, President Widodo of Indonesia expressed to Suu Kyi “that stability in Myanmar was important not only for the country but also the region.”[77] This passing comment, representing the most direct acknowledgement of the crisis from the Summit, is a far cry from intervention or even condemnation by fellow ASEAN states. As is typical of the culture of ASEAN (which will be discussed later at length), the problem is identified as an issue of stability rather than human rights. Bangladesh, which is not an ASEAN member, has worked with the United Nations Development Programme to create a Humanitarian Response Plan.[78] The Plan seeks to raise US $434 million for humanitarian aid, resources, and improved infrastructure in the host communities receiving the influx of Rohingya. The area to which most of the Rohingya arrive, Cox Bazar, has a “population of 2,290,000 predominantly Bengali Muslims, is one of Bangladesh’s poorest and most vulnerable districts, with malnutrition and food insecurity at chronic moderate levels, and poverty well above the national average.”[79] The Plan stressed the difficulty for Cox Bazar to accommodate the Rohingya who are “adversely affecting the food security and nutrition situation, and impacting the local economy by introducing a labor surplus which has driven day labor wages down, and an increase in the price of basic food and non-food items.”[80] The Plan also identifies a need for capital to address the issue of the increase in the illegal methamphetamine “yaba” coming from Myanmar and entering the local drug trafficking circles in Cox Bazar.[81] Case Study Analysis Similarities: Both cases of statelessness begin with the establishment of independent states freeing themselves from the influence of larger empires they felt exploited by. Slovenia emerged from the SRFY, while Myanmar gained independence from British colonial rule. Both states had preexisting ethnic tensions and upon independence used jus sanguinis citizenship laws as tools of ethnic engineering to establish national ethnic identities that privileged the ethnic majority over ethnic minorities. Slovenia’s citizenship law was written in 1990, while Myanmar’s was written just a few years prior in 1982. Both states are members of the UN and have affirmed the Universal Declaration of Human Rights. Both have chosen to join regional supranational organizations: Slovenia both the European Union and the Council of Europe, and Myanmar ASEAN. The Council of Europe has a doctrine of human rights, titled the European Convention on Human Rights, while ASEAN has formed the ASEAN Intergovernmental Commission on Human Rights and has included human rights law explicitly in their Charter.[82] Differences: While both case studies feature a recent history of independence, only Myanmar has a colonial history. Among the many long-term effects of colonialism is the exacerbation of deep ethnic tensions.[83] While the ethnic Slovenes had a desire to assert their independence and bolster their ethnic identity, they did not have a history of ethnic conflict rooted in colonial oppression. The ethnic majority of Myanmar, however, harbors a hatred of the Rohingya for their support of the British colonizers and their privileged position under colonial rule. This hatred, left to fester for centuries and passed down through generations, helps to explain the view of the Rohingya dominant in Myanmar: that they are Bangladeshi foreigners that have no place in Myanmar. Another difference, also attributable (at least in part) to colonial legacy, is in development status. Slovenia is affluent and highly developed, as is typical of European states. Myanmar, like many Southeast Asian states, has been a Least Developed Country since 1987. For the last thirty years, they have not been able to reduce their Economic Vulnerability Index the requisite degree to graduate to a Developing Country.[84] Development Status, of course, reflects the state economy, but it also includes rates of literacy, undernourishment, child mortality, and education.[85] These factors influence the political realities of states. Slovenia has had the opportunity to invest in infrastructure and education that allows for high quality of life, reduced ethnic divide, and high levels of institutionalization and rule of law. Myanmar, on the other hand, has not had the resources to engage in those opportunities, and instead faced poverty that only hindered rule of law, aggravated tensions, and made people susceptible to mobilization along ethnic lines by military and political opportunists. While both states are part of supranational regional organizations, the strength, values, and interests of these two organizations are vastly different. The Council of Europe, founded in 1949, is characterized by a culture committed to Human Rights. Being an old organization comprised of wealthy and like-minded states, it has been able to develop strong institutions. The interest in and capacity to enforce human rights law manifests in the strength of the European Court of Human Rights and the European Convention on Human Rights. This culture of human rights and strength of institutions combined with an interest from regional states absorbing the stateless together brought the Court to convict Slovenia of breaching the European Human Rights Convention. Slovenia, under the weight of this powerful regional organization, conceded. Additionally, Slovenia is a new member of the EU and has such had an interest in accepting the EU’s human rights norms in order to cement their status as an EU member (and to avoid EU sanctions). The fledgling ASEAN, on the other hand, only recently adopted their Charter in 2008. As such, the organization is young, weak, and not highly institutionalized. While its Charter seeks to “protect human rights,”[86] it lacks any judicial infrastructure for doing so. It does, however, contain articles explicitly outlining: “respect independence, sovereignty, equality, territorial integrity and national identity of all ASEAN member states,”[87] “non-interference in the internal affairs of ASEAN member states,”[88] “respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion,”[89] and “abstention from participation in any policy or activity, including the use of its territory, pursued by an ASEAN Member State or non-ASEAN state or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States.”[90] From these articles it is abundantly clear that the culture of ASEAN is such that it values sovereignty and non-intervention far more than human rights. In addition to weak institutions and a culture that respects sovereignty, the ASEAN member states are not absorbing the Rohingya population and thus have no interest in intervention. Gruesome as it may be, the geographic reality of the Southeast Asian region is such that those who flee from Myanmar do so by boat, and many do not survive the oceanic crossing. Those who do are headed primarily to non-ASEAN member Bangladesh. The Rohingya who attempted to enter Thailand, which is an ASEAN member state, were either returned to Myanmar[91] or did not survive.[92] Findings: The Importance of Regional Asymmetry This paper maintains that nearly all of the above differences share a common factor: they are regional in nature. The realities of being a European state versus a Southeast Asian state are markedly different. These regions have different histories, resources, levels of institutionalization, values, cultures, and interests, all of which are reflected in the actions (or lack thereof) of their supranational organizations. Without clear international law, it falls on these regional organizations to choose whether to intervene on the part of the stateless in the name of human rights or to be silent and honor sovereignty. This essentially means that without the protection of international law, domestic law, or refugee law, the fate of stateless peoples is currently determined by the fortuity of geography. Should they be rendered stateless in a region with a strong, established supranational organization with a culture valuing human rights, their treatment will be wildly different than a stateless person born in a region with a young, weak supranational organization that values sovereignty. Conclusion This paper has demonstrated that the issue of statelessness is so difficult to address because of the fundamental contradiction in international law protecting the universal human right to nationality and the state’s right to determine who its nationals are. When these rights come into conflict, it remains unclear which law supersedes the other, thereby creating opportunities for deprivation of nationality. This paper examined one successful example of statelessness being addressed (Slovenia) and one devastating failure (Myanmar). The case studies reveal the common use of citizenship laws as tools of ethnic engineering in newly formed states. They also reveal the primary difference, and thus determining factor, to be regional. In these legally ambiguous situations it was the strength, values, and interests of the regional organizations that determined whether or not stateless peoples were protected. Moving Forward This paper contends that the highly unequal treatment of the stateless of Slovenia and Myanmar is unacceptable. Rather than allow the fate of the stateless to rest upon the nature of the regional organization in place, clear and strong legal rights and protections need be outlined for stateless peoples. One manner of achieving this goal would be an amendment to the laws of refugees to include stateless peoples. The refugee legally flees their nation for “well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.”[93] Amending the law such that this definition also includes persons fleeing for well-founded fear of persecution for reasons of statelessness would suffice. A second, more difficult, option would be to bolster a body of law specifically for stateless peoples (like that for refugees), as the current state of international law protecting stateless peoples is evidently insufficient. As the legal system stands now, the global community will likely not intervene in Myanmar until the crisis becomes so egregious as to invoke the Responsibility to Protect, and even then it is not clear if intervention will occur, and if so what form it will take. Endnotes [1] "Myanmar: Crimes against humanity terrorize and drive Rohingya out," Amnesty International, October 18, 2017, https://www.amnesty.org/en/latest/news/2017/10/myanmar-new-evidence-of-systematic-campaign-to-terrorize-and-drive-rohingya-out/ . [2] UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, September 2011, available at: http://www.refworld.org/docid/4ec4a7f02.html [accessed 16 December 2017] [3] United Nations High Commissioner for Refugees, "Protecting Refugees: questions and answers," UNHCR, February 01, 2002, http://www.unhcr.org/afr/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html . [4] "IDP definition," UNHCR|Emergency Handbook, https://emergency.unhcr.org/entry/67716/idp-definition . [5] "IDP definition," UNHCR|Emergency Handbook, https://emergency.unhcr.org/entry/67716/idp-definition . [6] Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Oxford and Portland, Oregon: Hart Publishing, 2016), 96. [7] "Right to a Nationality and Statelessness," United Nations Office of the High Commissioner, http://www.ohchr.org/EN/Issues/Pages/Nationality.aspx . [8] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [9] Article 12 (4), UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 12(4). available at: http://www.refworld.org/docid/3ae6b3aa0.html . [10] Article 12 (4), UN General Assembly, International Covenant, 5(d) (i) – (ii). [11] UN Human Rights Council, Human Rights and arbitrary deprivation of nationality: Report of the Secretary-General, 14 December 2009 (UN Doc A/HCR/13/34), available at: www.refworld.org/docid4b83acb2.html . [12] UN Human Rights Council, Report of the Secretary-General. [13] League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137, available at: http://www.refworld.org/docid/3ae6b3b00.html . [14] League of Nations, Convention on Certain Questions. [15] ILC, ‘Report on the Elimination or Reduction of Statelessness’ (1953) UN Doc A/CN.4.64;ILC, Yearbook of the International Law Commission, vol II (1963) 167 [14]-[15] [16] ILC, ‘Report on the Elimination or Reduction of Statelessness’; ILC, Yearbook, 167 [14]-[15]. [17] Paul Weis, Nationality and Statelessness in International law (Westport, CT: Hyperion Press, 1979). [18] "UN Conventions on Statelessness," UNHCR, http://www.unhcr.org/en-us/un-conventions-on-statelessness.html . [19] "UN Conventions on Statelessness," UNHCR. [20] Constitution of the Republic of Slovenia [Slovenia], 23 December 1991, available at: http://www.refworld.org/docid/4c407ae62.html . [21] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 20. [22] Citizenship Act of the Republic of Slovenia [], 25 June 1991, available at: http://www.refworld.org/docid/3ae6b5271b.html [23] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 160. [24] Igor Štiks, Nations and Citizens, 160. [25] Jasmine Demi´c, "The Erasure: Administrative Ethnic Cleansing in Slovenia," The Erasure: Administrative Ethnic Cleansing in Slovenia - ERRC.org, October 29, 2003, , http://www.errc.org/article/the-erasure-administrative-ethnic-cleansing-in-slovenia/1109 . [26] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 160. [27] Citizenship Act of the Republic of Slovenia, 25 June 1991, Article 10 (8). available at: http://www.refworld.org/docid/3ae6b5271b.html [28] Citizenship Act of the Republic of Slovenia, Article 10(4) [29] Igor Štiks, Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship (London: Bloomsbury Academic, 2015), 163. [30] Igor Štiks, Nations and Citizens, 160. [31] Open Society Justice Initiative, "European Court Strengthens Protections against Statelessness in Slovenia Ruling," Open Society Foundations, June 26, 2012, , https://www.opensocietyfoundations.org/press-releases/european-court-strengthens-protections-against-statelessness-slovenia-ruling . [32] Rainer Bauböck, Bernhard Perchinig, and Wiebke Sievers, eds., Citizenship Policies in the New Europe Expanded and Updated Edition (Amsterdam University Press, 2009), 302. [33] Bauböck, Perchinig, Sievers, eds., Citizenship Policies in the New Europe, 302. [34] Rainer Bauböck, Bernhard Perchinig, and Wiebke Sievers, eds., Citizenship Policies in the New Europe Expanded and Updated Edition (Amsterdam University Press, 2009), 312. [35] Bauböck, Perchinig, Sievers, eds., Citizenship Policies in the New Europe, 312. [36] "Languages across Europe: Slovenia," BBC, http://www.bbc.co.uk/languages/european_languages/countries/slovenia.shtml . [37] Sebastian Kohn, "Victory for Slovenia's "erased citizens" at the European Court of Human Rights," European Network on Statelessness, June 26, 2012, https://www.statelessness.eu/blog/victory-slovenias-erased-citizens-european-court-human-rights . [38] Kuric and others v. Slovenia, Application no. 26828/06, Council of Europe: European Court of Human Rights, 26 June 2012, available at: http://www.refworld.org/cases,ECHR,4fe9c88c2.html . [39] Toby Vogel, "Slovenia told to compensate Yugoslav citizens," POLITICO, April 23, 2014, https://www.politico.eu/article/slovenia-told-to-compensate-yugoslav-citizens/ . [40] Vogel, "Slovenia told to compensate Yugoslav citizens" [41] Open Society Justice Initiative, "European Court Strengthens Protections against Statelessness in Slovenia Ruling," Open Society Foundations, June 26, 2012, https://www.opensocietyfoundations.org/press-releases/european-court-strengthens-protections-against-statelessness-slovenia-ruling . [42] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 286. doi:10.1177/1043986216660811. [43] Azeem Ibrahim, Rohingyas: Inside Myanmars Hidden Genocide (Oxford University Press, 2016), 18. [44] Azeem Ibrahim, Rohingyas: Inside Myanmars Hidden Genocide (Oxford University Press, 2016), 26. [45] Ibrahim, Rohingyas, 26. [46] Ibrahim, Rohingyas, 18. [47] Ibrahim, Rohingyas, 26. [48] Ibrahim, Rohingyas, 27. [49] Azeem Ibrahim, Rohingyas: Inside Myanmars Hidden Genocide (Oxford University Press, 2016), 28. [50] Azeem Ibrahim, Rohingyas: Inside Myanmars Hidden Genocide (Oxford University Press, 2016), 50. [51] Constitution of the Socialist Republic of the Union of Burma, 3 January 1974, available at: http://www.refworld.org/docid/3ae6b5b64.html [52] Azeem Ibrahim, Rohingyas: Inside Myanmars Hidden Genocide (Oxford University Press, 2016), 52. [53] "Why is there communal violence in Myanmar?" BBC News, July 03, 2014, http://www.bbc.com/news/world-asia-18395788 . [54] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 290 doi:10.1177/1043986216660811. [55] Ullah, "Rohingya Crisis in Myanmar" [56] "Myanmar: Crimes against humanity terrorize and drive Rohingya out," Amnesty International, October 18, 2017, https://www.amnesty.org/en/latest/news/2017/10/myanmar-new-evidence-of-systematic-campaign-to-terrorize-and-drive-rohingya-out/ . [57] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 293. doi:10.1177/1043986216660811. [58] Human Rights Watch, perilous plight [59] Human Rights watch, perilous plight, 1 [60] Human Rights watch, PP, 2 [61] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, Article 33(1). available at: http://www.refworld.org/docid/3be01b964.html . [62] UN General Assembly, Declaration on Territorial Asylum, 14 December 1967, A/RES/2312(XXII), Article 3(1). available at: http://www.refworld.org/docid/3b00f05a2c.html . [63] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 294 doi:10.1177/1043986216660811. [64] Ben Westcott and Laura Koran, "Tillerson: Myanmar clearly 'ethnic cleansing' the Rohingya," CNN, November 22, 2017, http://www.cnn.com/2017/11/22/politics/tillerson-myanmar-ethnic-cleansing/index.html . [65] "Burma: Military Commits Crimes Against Humanity," Human Rights Watch, September 26, 2017, https://www.hrw.org/news/2017/09/25/burma-military-commits-crimes-against-humanity . [66] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 297 doi:10.1177/1043986216660811. [67] Rebecca Wright, Katie Hunt, and Joshua Berlinger, "Aung San Suu Kyi breaks silence on Rohingya, sparks storm of criticism," CNN, September 19, 2017, http://www.cnn.com/2017/09/18/asia/aung-san-suu-kyi-speech-rohingya/index.html . [68] Bearak, Max. "Aung San Suu Kyi calls Rohingya conflict a ‘quarrel’ in surprise visit to affected areas." The Washington Post. November 02, 2017. https://www.washingtonpost.com/news/worldviews/wp/2017/11/02/aung-san-suu-kyi-calls-rohingya-conflict-a-quarrel-in-surprise-visit-to-affected-areas/?utm_term=.f74c66c0d69f . [69] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 297 doi:10.1177/1043986216660811. [70] "Humanitarian crisis affecting Rohingya Muslims is the product of genocide," International State Crime Initiative, accessed May 16, 2015, http://statecrime.org/state-crime-research/press-release-humanitarian-crisis-affecting-rohingya-muslims-product-genocide/ . [71] "Humanitarian crisis affecting Rohingya Muslims is the product of genocide," International State Crime Initiative. [72] Bearak, Max. "Aung San Suu Kyi calls Rohingya conflict a ‘quarrel’ in surprise visit to affected areas." The Washington Post. November 02, 2017. https://www.washingtonpost.com/news/worldviews/wp/2017/11/02/aung-san-suu-kyi-calls-rohingya-conflict-a-quarrel-in-surprise-visit-to-affected-areas/?utm_term=.f74c66c0d69f . [73] "Burma: Military Commits Crimes Against Humanity," Human Rights Watch, September 26, 2017, https://www.hrw.org/news/2017/09/25/burma-military-commits-crimes-against-humanity . [74] Ben Westcott and Laura Koran, "Tillerson: Myanmar clearly 'ethnic cleansing' the Rohingya," CNN, November 22, 2017, http://www.cnn.com/2017/11/22/politics/tillerson-myanmar-ethnic-cleansing/index.html . [75] "Donors pledge over US$344 million in response to Rohingya refugee crisis," UNHCR, October 23, 2017, http://www.unhcr.org/en-us/news/press/2017/10/59ee1c494/donors-pledge-us344-million-response-rohingya-refugee-crisis.html . [76] Jera Lego, "Why ASEAN Can't Ignore the Rohingya Crisis," The Diplomat, May 17, 2017, https://thediplomat.com/2017/05/why-asean-cant-ignore-the-rohingya-crisis/ . [77] Jera Lego, "Why ASEAN Can't Ignore the Rohingya Crisis," The Diplomat, May 17, 2017, https://thediplomat.com/2017/05/why-asean-cant-ignore-the-rohingya-crisis/ . [78] "Humanitarian Response Plan," ReliefWeb, October 2017, https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-response-plan-september-2017-february-2018-rohingya . [79] Bangladesh, United Nations Development Programme, Humanitarian Response Plan (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/2017_HRP_Bangladesh_041017_2.pdf . [80] Bangladesh, United Nations Development Programme, Humanitarian Response Plan (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/2017_HRP_Bangladesh_041017_2.pdf . [81] Bangladesh, United Nations Development Programme, Humanitarian Response Plan (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/2017_HRP_Bangladesh_041017_2.pdf . [82] Association of Southeast Asian Nations (ASEAN), Charter of the Association of Southeast Asian Nations, 20 November 2007, available at: http://www.refworld.org/docid/4948c4842.html . [83] Donald L. Horowitz, Ethnic groups in conflict (Berkeley: University of California Press, 1985). [84] "Least Developed Country Category: Myanmar Profile," United Nations, 2015, https://www.un.org/development/desa/dpad/least-developed-country-category-myanmar.html . [85] "Least Developed Country Category: Myanmar Profile," United Nations. [86] Association of Southeast Asian Nations (ASEAN), Charter of the Association of Southeast Asian Nations, 20 November 2007, available at: http://www.refworld.org/docid/4948c4842.html . [87] ASEAN, Charter of the Association, Article 2.2A. [88] ASEAN, Charter of the Association, Article 2.2E. [89] ASEAN, Charter of the Association, Article 2.2F. [90] ASEAN, Charter of the Association, Article 2.2K. [91] Human Rights Watch, Perilous Plight: Burma's Rohingya Take to the Seas, 1 [92] Ahsan Ullah, "Rohingya Crisis in Myanmar," Journal of Contemporary Criminal Justice 32, no. 3 (2016), 294 doi:10.1177/1043986216660811. [93] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html . References Association of Southeast Asian Nations (ASEAN), Charter of the Association of Southeast Asian Nations, 20 November 2007, available at http://www.refworld.org/docid/4948c4842.html . Baik, Tae-Ung. Emerging Regional Human Rights Systems in Asia. Cambridge: Cambridge University Press, 2012. Bauböck, Rainer, Bernhard Perchinig, and Wiebke Sievers, eds. Citizenship Policies in the New Europe Expanded and Updated Edition. Amsterdam University Press, 2009. Bearak, Max. "Aung San Suu Kyi calls Rohingya conflict a ‘quarrel’ in surprise visit to affected areas." The Washington Post. November 02, 2017. https://www.washingtonpost.com/news/worldviews/wp/2017/11/02/aung-san-suu-kyi-calls-rohingya-conflict-a-quarrel-in-surprise-visit-to-affected-areas/?utm_term=.f74c66c0d69f. Bulaji´c, Svetislava. "Law of Nationality and the Dissolution of Yugoslavia." Indiana University Southeast. http://www.ius.bg.ac.rs/Naucni/prilozi/08%20Svetislava%20Bulajic.pdf. "Burma: Military Commits Crimes Against Humanity." Human Rights Watch. September 26, 2017. https://www.hrw.org/news/2017/09/25/burma-military-commits-crimes-against-humanity. CASE OF KURIĆ AND OTHERS v. SLOVENIA (European Court of Human Rights June 26, 2012), European Network on Statelessness 26828/06. Citizenship Act of the Republic of Slovenia, 25 June 1991, available at: http://www.refworld.org/docid/3ae6b5271b.html "Citizenship and the Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia." UNHCR Regional Bureau for Europe, European Series, 3, no. 1 (June 1997). Accessed November 28, 2017. http://www.unhcr.org/46e660582.pdf. Constable, Marianne. The Law of the Other: the Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge. Chicago: University of Chicago Press, 1994. Constitution of the Republic of Slovenia [Slovenia], 23 December 1991, available at: http://www.refworld.org/docid/4c407ae62.html . Constitution of the Socialist Republic of the Union of Burma, 3 January 1974, available at: http://www.refworld.org/docid/3ae6b5b64.html Demi´c, Jasmine. "The Erasure: Administrative Ethnic Cleansing in Slovenia." The Erasure: Administrative Ethnic Cleansing in Slovenia - ERRC.org. October 29, 2003. http://www.errc.org/article/the-erasure-administrative-ethnic-cleansing-in-slovenia/1109. "Donors pledge over US$344 million in response to Rohingya refugee crisis." UNHCR. October 23, 2017. http://www.unhcr.org/en-us/news/press/2017/10/59ee1c494/donors-pledge-us344-million-response-rohingya-refugee-crisis.html. Edwards, Alice, and Laura Van Waas, eds. Nationality and Statelessness Under International Law. Cambridge University Press, 2014. Eldridge, Philip J. The Politics of Human Rights in Southeast Asia. Politics in Asia. London: Routledge, 2002. Fripp, Eric. Nationality and Statelessness in the International Law of Refugee Status. Oxford: Hart Publishing, 2016. Horowitz, Donald L. Ethnic groups in conflict. Berkeley: University of California Press, 1985. "Humanitarian crisis affecting Rohingya Muslims is the product of genocide." International State Crime Initiative. Accessed May 16, 2015. http://statecrime.org/state-crime-research/press-release-humanitarian-crisis-affecting-rohingya-muslims-product-genocide/. "Humanitarian Response Plan." ReliefWeb. October 2017. https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-response-plan-september-2017-february-2018-rohingya. Bangladesh. United Nations Development Programme. Humanitarian Response Plan. 2017. https://reliefweb.int/sites/reliefweb.int/files/resources/2017_HRP_Bangladesh_041017_2.pdf. Ibrahim, Azeem. The Rohingyas: Inside Myanmars Hidden Genocide. Ibrahim, Azeem. The Rohingyas: Inside Myanmar's Hidden Genocide. London: Hurst & Co., 2016. Ibrahim, Azeem. Rohingyas: Inside Myanmars Hidden Genocide. Oxford University Press, 2016. "IDP definition." UNHCR|Emergency Handbook. https://emergency.unhcr.org/entry/67716/idp-definition. ILC, ‘Report on the Elimination or Reduction of Statelessness’ (1953) UN Doc A/CN.4.64;ILC, Yearbook of the International Law Commission, vol II (1963) 167 [14]-[15] Kiragu, Esther, Angela Li Rosi, and Tim Morris. "A review of UNHCR’s response to the protracted situation of stateless Rohingya refugees in Bangladesh." UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES POLICY DEVELOPMENT AND EVALUATION SERVICE (PDES), December 2011. http://www.netipr.org/policy/downloads/20111201_UNHCR-states-of-denial.pdf. Kuric and others v. Slovenia, Application no. 26828/06, Council of Europe: European Court of Human Rights, 26 June 2012, available at: http://www.refworld.org/cases,ECHR,4fe9c88c2.html . Kohn, Sebastian. "Victory for Slovenia's "erased citizens" at the European Court of Human Rights." European Network on Statelessness. June 26, 2012. https://www.statelessness.eu/blog/victory-slovenias-erased-citizens-european-court-human-rights. "Languages across Europe: Slovenia." BBC. http://www.bbc.co.uk/languages/european_languages/countries/slovenia.shtml. "Least Developed Country Category: Myanmar Profile." United Nations. 2015. https://www.un.org/development/desa/dpad/least-developed-country-category-myanmar.html. League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137, available at: http://www.refworld.org/docid/3ae6b3b00.html . Lego, Jera. "Why ASEAN Can't Ignore the Rohingya Crisis." The Diplomat. May 17, 2017. https://thediplomat.com/2017/05/why-asean-cant-ignore-the-rohingya-crisis/. Manly, Mark, and Santhosh Persaud. "UNHCR and responses to statelessness." The Repository on Forced Migration. http://www.fmreview.org/sites/fmr/files/FMRdownloads/en/statelessness/manly-persaud.pdf. "Myanmar: Crimes against humanity terrorize and drive Rohingya out." Amnesty International. October 18, 2017. https://www.amnesty.org/en/latest/news/2017/10/myanmar-new-evidence-of-systematic-campaign-to-terrorize-and-drive-rohingya-out/. Open Society Justice Initiative. "European Court Strengthens Protections against Statelessness in Slovenia Ruling." Open Society Foundations. June 26, 2012. https://www.opensocietyfoundations.org/press-releases/european-court-strengthens-protections-against-statelessness-slovenia-ruling. Perilous Plight: Burma's Rohingya Take to the Seas. New York: Human Rights Watch, 2009. "Right to a Nationality and Statelessness." United Nations Office of the High Commissioner. http://www.ohchr.org/EN/Issues/Pages/Nationality.aspx. Sawyer, Caroline, and Brad K. Blitz. Statelessness in the European Union: Displaced, Undocumented, Unwanted. Cambridge: Cambridge University Press, 2011. Southwick, Katherine. "Preventing Mass Atrocities Against The Stateless Rohingya in Myanmar : A Call for Solutions." Journal of International Affairs 68, no. 2 (Summer 2015). Accessed November 18, 2017. https://search.proquest.com/docview/1679734035?pq-origsite=gscholar. "'The Government Could Have Stopped This': Sectarian Violence and Ensuing Abuses in Burma's Arakan State." Human Rights Watch. July 31, 2012. Accessed November 18, 2017. https://www.hrw.org/report/2012/07/31/government-could-have-stopped/sectarian-violence-and-ensuing-abuses-burmas-arakan. Ullah, Ahsan. "Rohingya Crisis in Myanmar." Journal of Contemporary Criminal Justice 32, no. 3 (2016): 285-301. doi:10.1177/1043986216660811. "UN Conventions on Statelessness." UNHCR. http://www.unhcr.org/en-us/un-conventions-on-statelessness.html. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, Article 33(1), available at: http://www.refworld.org/docid/3be01b964.html . UN General Assembly, Declaration on Territorial Asylum, 14 December 1967, A/RES/2312(XXII), Article 3(1), available at: http://www.refworld.org/docid/3b00f05a2c.html . UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 12 (4),. available at: http://www.refworld.org/docid/3ae6b3aa0.html . UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html UN High Commissioner for Refugees (UNHCR), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, September 2011, available at: http://www.refworld.org/docid/4ec4a7f02.html. UN Human Rights Council, Human Rights and arbitrary deprivation of nationality: Report of the Secretary-General, 14 December 2009 (UN Doc A/HCR/13/34), available at: www.refworld.org/docid4b83acb2.html . United Nations High Commissioner for Refugees. "Ending Statelessness." UNHCR: The UN Refugee Agency. http://www.unhcr.org/en-us/stateless-people.html. United Nations High Commissioner for Refugees. "Protecting Refugees: questions and answers." UNHCR. February 01, 2002. http://www.unhcr.org/afr/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html. Vogel, Toby. "Slovenia told to compensate Yugoslav citizens." POLITICO. April 23, 2014. https://www.politico.eu/article/slovenia-told-to-compensate-yugoslav-citizens/. Weis, Paul. Nationality and Statelessness in International law. Westport, CT: Hyperion Press, 1979. Weissbrodt, David S., and Clay Collins. "The Human Rights of Stateless Persons." Human Rights Quarterly 28, no. 1 (February 2006): 245-76. doi:https://doi.org/10.1353.hrq.2006.0013. Westcott, Ben, and Laura Koran. "Tillerson: Myanmar clearly 'ethnic cleansing' the Rohingya." CNN. November 22, 2017. http://www.cnn.com/2017/11/22/politics/tillerson-myanmar-ethnic-cleansing/index.html. "Why is there communal violence in Myanmar?" BBC News. July 03, 2014. http://www.bbc.com/news/world-asia-18395788. Wright, Rebecca, Katie Hunt, and Joshua Berlinger. "Aung San Suu Kyi breaks silence on Rohingya, sparks storm of criticism." CNN. September 19, 2017. http://www.cnn.com/2017/09/18/asia/aung-san-suu-kyi-speech-rohingya/index.html. Štiks, Igor. Nations and Citizens in Yugoslavia and the Post-Yugoslav States: One hundred Years of Citizenship. London: Bloomsbury Academic, 2015.

Oliver Hicks The Necessity of Perspective: A Nietzschean Critique of Historical Materialism and Political Meta-Narratives Oliver Hicks Karl Marx and Friedrich Nietzsche both contributed immensely to 19th century political philosophy and laid the foundation for countless revisions, interpretations, and new theories throughout the 20th and 21st centuries. While they share a common goal of exposing hidden, socially constructed restraints in order to liberate the individual, they differ sharply on both the nature of those societal restraints and what liberation actually looks like. I present these thinkers as foils: Marx guided by a normative approach that sees liberation as an inevitable conclusion of current social conditions, and Nietzsche describing liberation as necessary but ultimately ambiguous. Ultimately, I assert that this ambiguity is a necessary acceptance of true liberation that ought to humble any assertion of truth, morality, or rationality. I. Introduction But everything is fair It’s a paradox we call reality So keepin’ it real will make you A casualty of abnormal normality - Talib Kweli, Respiration (1) The above remarks are from a verse of the 2002 duet album Mos Def and Talib Kweli Are Black Star , in which artist Talib Kweli describes his inner-city New York landscape. The broader context of the song speaks to the harsh and often hopeless reality of a low-income Black experience. It begins with a dialogue from the seminal hip hop documentary Style Wars , in which a New York graffiti artist describes a recent work titled “Crime in the City.” The work implicitly asks the audience whether “crime” is all his city has to offer or if it is simply what one chooses to see when examining the New York streets. Kweli contributes his own perspective in the aforementioned line, in which he calls his reality a “paradox” where everything in this world is fair. Thus, nothing can be unfair with the proper perspective, lending itself to the paradox of never being able to pin down what is truly right or wrong. Kweli speaks of inter-gang violence, where young Black men are pitted against each other for the scarce resources present in their desolate environment. Yes, success is good, but at what cost to the broader struggle of their community? The second part of his stanza questions the efforts of anyone in this world to be truly “real,” as Kweli plays with a definition that is so integral to one’s identity in the hip hop community. Hip hop and rap are built around delivering viscerally authentic, or “real,” stories, usually about struggle, persecution, and ultimately perseverance against an adverse world. Thus, “keeping it real” becomes the idealized form of living as opposed to whitewashed versions of struggle or falsified stories for commercial success. But what does “realness” actually entail, and is it captured by this idealization? Kweli would answer that it is less objective than it might seem. Any attempt at authenticity is undermined by another perspective, and thus the vanity that accompanies an allegedly “real” individual instead makes them a casualty: they are not truly real, authentic, nor honest versions of themselves, but rather they are only “real” by an externally defined perspective, one that society wants for them. Kweli is inverting a pillar of rap culture by arguing that what is deemed true “realness” by people in the city is actually defined by the same subjective standards used to define its opposite. Put simply, the inner-city stories to which Kweli is referring are authentic as defined by what is expected of the storytellers: to be hard, cold-blooded, and insensitive to the harsh world around them. But does this produce genuine versions of who these individuals could be given different circumstances? Or are they simply buying into the “abnormal normality,” one defined by social constructs that is ultimately abnormal to whatever their “real” selves might be? The question of authenticity amidst veiling social norms is one discussed by a variety of modern political theorists, all seeking to understand who we are in order to understand who we ought to be—and how we ought to be governed. From descriptions of a primordial state of nature proposed by early contract theorists to Karl Marx’s world-encompassing system of historical materialism, these modern thinkers attempt to sketch out the natural, psychological, and social undercurrents of our behavior. Though Marx was the first to usher in a hermeneutics of suspicion by critiquing existing philosophical norms in search of hidden truths, he did so with the intent of outlining his own normative conception of humanity's goal (or his own end point on the linear timeline that is progress): communism. Decades later, Friedrich Nietzsche claimed “we are unknown to ourselves, we men of knowledge” in his preface to On the Genealogy of Morals. He proposed a philosophy that sought to interrogate reigning value systems that presented themselves as natural or self-evident without replacing them with his own explicit normative solution (2). Nietzsche recognized the limitations of philosophical inquiry while operating within the system he was critiquing. Humans lack a basic sense of what is good as enshrined in the concept of natural law or historical materialism because our entire system of moral values is a product of changing power dynamics. More importantly, we cannot see any semblance of truth unless we shed these artificial moral constructs. The relativity inherent in our ability to make judgements of ourselves and fellow citizens ultimately moves the goalposts of political theory itself: we are no longer moving toward that ideal form with which Plato was so obsessed because we cannot accurately define it. There are no political meta-narratives, no slate of criteria with which we can accurately and objectively identify our deepest human nature—to do so would be to dismiss far too many factors and make far too many assumptions. Rather, we must instead work to interrogate our unwavering beliefs in perceived truths or ideal forms in order to understand how we might escape them as they arise. As shown by Talib Kweli in his aforementioned lyrics, the inability to shed the social, moral, and ethical constructs that surround a particular Black experience raises questions regarding the obscuration of truth and the need for a variety of perspectives. Using Nietzsche’s skepticism of philosophy and morality as a foil for Marx’s historical materialism, I will draw on a number of their works to discuss the validity of any proposed political meta-narrative. First, I will present a brief model for viewing history as forward-facing in the pursuit of a realized ideal form, courtesy of Marx. Then, I will use Nietzsche to reject the notion of an ideal form and instead emphasize the need for perspective to understand any type of truth, political or otherwise, in order to escape the social constructs that mystify this truth and enslave us to normative ideals. II. Historical Progress as Forward-Facing: Marx’s Determinism Marx famously remarked at the beginning of The Communist Manifesto that “the history of all hitherto existing society is the history of class struggles”(3). More importantly, however, was the history that Marx was proposing henceforth. Communism was not just a prescription for the ills of capitalism, but a prediction of the inevitable collapse of the market economy itself: the contradictions intrinsic to capitalist function would ultimately lead to its own demise. Communism would simply be the final and best option for a post-revolutionary society. In this way, Marx lays a deterministic view of human progress. If humanity keeps moving forward as is, we will reach an inflection point; if we actively work to deconstruct the status quo, we will reach that same inflection point sooner. Though bleak, this notion of progress posits its own normative assumption that society is moving forward : ideology has simply masked antagonistic class divides while capitalism exploits them, but we will inevitably overcome this stain on history to usher in a new and better world. This deterministic presentation of history, or historical materialism, is one of Marx’s greatest contributions to political philosophy. Using this dialectical approach, Marx identified two main forces that drive historical change: the division of classes and the division of labor. The evolution of class systems is best articulated in the first section of the Manifesto , where Marx focuses primarily on Europe’s transition from feudal to modern societies, namely bourgeois societies. Feudal societies were composed of complex hierarchies: feudal lords, vassals, guild-masters, journeymen, apprentices, serfs, and more. Among these classes existed a constant dynamic of oppression, wherein higher classes dominated subordinate ones as defined by the material conditions of each (14). Centuries of global exploration, however, produced ever-expanding markets and ever-increasing demand that revolutionized the modes of production and condensed class antagonisms into Marx’s binary: the bourgeoisie and the proletariat. This defined the “Modern Industry” that Marx witnessed in the 19th century, wherein “the modern bourgeoisie is itself a product of a long course of development, of a series of revolutions in the modes of production and of exchange” (5). Underlying this series of class revolutions are developments in the division of labor: first in tribal communities, then ancient communes, feudal states, commercial states, and finally the capitalist state of the bourgeoisie. The division of labor reflects both the growth of the productive capacities of these communities as well as the growth of divided interests among individuals. For example, Marx argues that the division of labor within a nation first leads to the “separation of industrial and commercial from agricultural labor, hence to the separation of town and country… [then] to the separation of commercial from industrial labor” and so on (6). Occurring simultaneously are infinitesimal divisions within these branches “among the individuals cooperating in definite kinds of labor” (7). Ultimately, Marx places the modern industrial state, with all of its complex and specialized divisions, on an historical timeline that inevitably moves toward the maximization of its productive capacities since it is constantly in competition with similarly structured nations. This maximization, however, along with its own internal contradictions, begets its own destruction. The consolidation of “scattered private property” into the consolidation of “capitalistic private property” in the hands of an increasingly smaller elite becomes too heavy to support itself, and the fetters that confine the socialization of labor for exploitation ironically lead to the organization of a massive, oppressed class that revolts against their slave-wage masters (8). This revolution, Marx argues, is a smoother transition than the original consolidation of private property via the socialization of labor, since the latter is the “expropriation of the mass of the people by a few usurpers,” but the former is the “expropriation of a few usurpers by the mass of the people” (9). However, the light at the end of this tunnel that is capitalism and the driving force behind this expropriation of the few by the many is Marx’s concept of “species-being.” As human beings, Marx considers our most basic and fundamental essence to be our drive to engage in productive activity; it is our “working-up of the objective world,” in which “[man] duplicates himself not only, as in consciousness, intellectually, but also actively, in reality, and therefore he contemplates himself in a world that he has created” (10). This creative process, when done freely, consciously, and socially, is what separates us from animals and satisfies our life purpose: we choose what to make and when to make it in order to survive. Capitalism disrupts this process by commodifying labor and subsequently alienating the laborer first from their product, second from their process, third from themselves, and finally from each other (11). As a result, the worker becomes antagonistic to the entire system of private property: they are resentful of the bourgeois capitalist, suspicious of their fellow worker, and disillusioned with themselves, all because of alienation from their species-being. The rediscovery of our species-being is the natural epilogue to the implosion of capitalism. And yet, this conclusion relies on Marx’s own crypto-normativity. Like the early contract theorists who came far before him, Marx is simply making his own normative assumption regarding human nature: we live to create the world around us, and are only satisfied by seeing ourselves in that world. One could argue that the exploitation of this process is a violation of a Marxist natural law, and that a communist revolution is a means of retributive justice. As noble as it may be to argue that communism is the inevitable end point of a history structured by material conditions, Marx’s theory is limited by its own dogmatic assumptions. However, he was not alone in proposing human history as a deterministic teleology. Marx built his theory off the critique of Hegel, who argued a similar conception of history driven by conflicts in ideas rather than material conditions. Adam Smith falls into this same category, emphasizing the ability to improve society through the accelerating efficiency of mutually beneficial economic transactions and production (he even titled his magnum opus The Wealth of Nations —“Nations” being plural to suggest collective benefit in pursuing capitalistic ends). Immanuel Kant believed in the ability of individual societies to develop the faculties of humankind over time, leading again to the upward trajectory of progress and the inevitable achievement of our full potential. However, each of these thinkers suffer from the same flaw: they boldly claim to know the end stage of humanity and the final form to which political philosophy strives while being limited by their own historical context and intellectual horizons. III. Rejection of the Pure Form: Nietzsche’s Response Though his work is filled with a multitude of social and moral critiques, Nietzsche claimed that “the worst, most durable, and most dangerous of all errors so far was… Plato’s invention of the pure spirit and good as such” (12). Consistent with Nietzsche’s long-standing critique of religion was his belief that Christianity had become “Platonism for ‘the people’” by providing an ideal form to which, by restricting one’s indulgences and taking leaps of faith, one could strive and achieve a good moral life. To Nietzsche, however, faith extends far beyond theology: it applies to every corner of philosophy and knowledge. Philosophers’ pursuits of knowledge are done in vain, since each proposes an alleged “cold, pure, divinely unconcerned dialectic” that is, in reality, simply “an assumption, a hunch, indeed a kind of ‘inspiration’... that they defend with reasons they have sought after the fact” (13). A particularly heinous example of this prejudice is Kant’s “discovery” of a new human faculty, one that allowed him to argue man’s capacity to make synthetic judgements a priori . Nietzsche argues this discovery was in fact not a discovery at all, but a lazy leap of faith that compelled him to answer his own questions “by virtue of a faculty” and essentially invent his own causa sui (14). Consequently, Nietzsche argues that we ought to approach knowledge with suspicion. By questioning the value of truth and certainty in the face of their opposites, Nietzsche rejects the idea of proposing a fully contained and explanatory system for any type of knowledge, since “in the philosopher… there is nothing whatever that is impersonal; and above all, his morality bears decided and decisive witness to who he is ” (15). Dogmatic philosophy and its ideal forms, therefore, are less interesting to Nietzsche than the necessity of our belief in them. Rather than ask what our beliefs say, a better question to pose is what these beliefs say about us . By accusing all philosophy of being dogmatic, Nietzsche is drawing attention to the philosophical limitations of any single individual. As such, a new generation of philosophers ought to embrace “the dangerous ‘maybe’ in every sense,” instead putting their faith in possibilities rather than certainties (16). To recognize one’s own inability to offer an all-encompassing system for the world is to endorse the necessity of perspective, the variety of which is the only way to understand the true nature of anything. To deny this necessity, which Nietzsche calls “the basic condition of all life,” is to instead continue the pursuit of that Platonic good spirit or ideal form (17). Rather than working to defend knowledge as we come to understand it, philosophers should be constantly interrogating knowledge in an attempt to free themselves from their own prejudices. In doing so, one rejects the idea of truth as purely objective and “knows how to employ a variety of perspectives and affective interpretations in the service of knowledge” (18). Nietzsche draws attention to the fact that there is no view from nowhere: “there is only a perspective seeing, only a perspective ‘knowing’; and the more affects we allow to speak about one thing, the more eyes, different eyes, we can use to observe one thing, the more complete will our ‘concept’ of this thing, our ‘objectivity,’ be” (19). Put differently, one can liken Nietzsche’s concept of truth to a statue: any singular view of the statue only provides a singular picture of it. The view from the front of the statue will give a completely different image than that from the back, assuming we could even agree upon which is front and back in the first place. A plethora of angles upon which to view the statue, therefore, is necessary to truly understand it since any individual view is inherently limited by their position relative to the object. “Free spirits,” then, unlike those who throughout history have proposed their singular view of the statue as correct, are that new generation of individuals who constantly question their own prejudices and adopt new angles (20). In this way, one could argue that Nietzsche rejects the concept of Truth altogether, and perspectivism becomes a practical tool for understanding the world around us as we develop our own concepts of knowledge. At the very least, Nietzsche seems to suggest that regardless of the existence of any Truth, we cannot even begin to understand Truth unless we prioritize an ensemble of perspectives over any individual one. In doing so, we can use the former to prevent us from being limited by the latter. Once again, Nietzsche’s perspectivism has less to do with its relationship to truth (capital-T or otherwise) and more to do with its relationship to the individual and their inherently limited perspective. This concept of agency and power in the face of social restraints is consistent throughout Nietzsche’s works, and one of the most obvious ties is in his critique of Christianity. Nietzsche makes explicit his disdain for the church in The Genealogy of Morals by arguing that the church itself pioneered a type of slave morality that inherently limits the capability of man by suppressing his instincts. Throughout history, however, this morality was used strategically by the weak (namely priests) to seize some semblance of power from the nobility, whose morality is entirely self-affirming, contemptible towards things outside itself, and emphasizes power over restraint (21). Not unlike Talib Kweli’s description of his catch-22 lifestyle as a gangster in inner-city New York, Nietzsche asks us to consider a bird of prey and a lamb: “there is nothing strange about the fact that lambs bear a grudge towards large birds of prey—but that is no reason to blame the large birds of prey for carrying off the little lambs” (22). In fact, he continues, the lambs would be perfectly well off to regard anything like a bird of prey as evil, since it is the source of violence against them; the bird of prey, however, might view this “somewhat derisively, and will perhaps say: ‘we don’t bear any grudge at all towards these good lambs, in fact we love them, nothing is tastier than a tender lamb” (23). The perspective that is intrinsic to these qualitative judgements of good and evil both undermines their objectivity and highlights a cornerstone of Nietzsche’s philosophy: will-to-power. With regard to Marx, Nietzsche dismisses one of his most basic assumptions using this concept of the will-to-power: … life itself is essentially appropriation, injury, conquest of the strange and weak, suppression, severity, obtrusion of peculiar forms, incorporation, and at the least, putting it mildest, exploitation; —but why should one for ever use precisely these words on which for ages a disparaging purpose has been stamped? Even the organization within which, as was previously supposed, the individuals treat each other as equal—it takes place in every healthy aristocracy—must itself, if it be a living and not a dying organization, do all that towards other bodies, which the individuals within it refrain from doing to each other: it will have to be the incarnated Will to Power, it will endeavor to grow, to gain ground, attract to itself and acquire ascendency—not owing to any morality or immorality, but because it lives, and because life is precisely Will to Power… “Exploitation” does not belong to a depraved, or imperfect and primitive society: it belongs to the nature of the living being as a primary organic function; it is a consequence of the intrinsic Will to Power, which is precisely the Will to Life (24). By arguing that exploitation is not inherently evil, it is easy to dismiss Nietzsche as equally normative with different assumptions. The difference, however, is that Nietzsche’s critique does not lead him to propose a political solution or theorize a political meta-narrative meant to end suffering as he sees it, for that would be replacing one restraining superstructure with another. Will-to-power, according to Nietzsche, is not a facet of human nature that must be complemented by politics nor economics: the will-to-power is a means to finding that solution. It is the unaffected and unfettered ability of truly “free spirits” to escape the confines of “good” and “evil” themselves. As discussed above, no philosopher is truly impartial nor void of their own prejudices, and political meta-narratives such as Marx’s unwavering rejection of exploitation cannot exist to serve their purpose without accepting some degree of dogmatic assumptions. Nietzsche himself is no exception, which is why he hypothesizes these free spirits rather than identifying with them. But continuing to engage in philosophy, particularly political philosophy, without interrogating these assumptions and prejudices is distracting; we cannot begin to construct new worlds until we have deconstructed old ones. Earlier in Nietzsche’s career, we see a similar critique of Christian morals in a different context. In On the Advantages and Disadvantages of History for Life , Nietzsche argues that Christianity seeks to define an end point for humanity by predicting “an end to life on earth… and [condemning] the living to live in the fifth act of the tragedy” (25). By limiting the scope and potential of humanity, Christianity restrains the true potential of the strong and capable, or those who might have the potential to transcend the social or moral limitations they have inherited. Moreover, Nietzsche argues that “Christianity would like to [destroy] every culture which incites to striving further and takes for its motto memento vivere … [it] rejects with a shrug of the shoulders everything in the process of becoming, and spreads over it the feeling of being very late arrivals and epigoni” (26). Though Marx’s calls to action for the proletarian revolution seem counterintuitive to a feeling of being “late arrivals” or “epigoni,” Nietzsche’s critique holds true with regard to Marxism’s crypto-normative, deterministic approach to social organization. Marx provides an all-encompassing system that is meant to both explain and predict the movement of human progress, which owes itself entirely to factors and conditions that are beyond the individual. In a way, this parallels Nietzsche’s diagnosis that we are products of our society to a degree much higher than we realize. The difference, however, lies in their prognosis. Marx believed that the course of these societal effects, namely material conditions, would inevitably lead to the implosion of the status quo that, if properly prepared for, could usher in his optimal form of social organization. Individuals, therefore, might not be “late arrivals” nor “epigoni,” though Marx certainly seems to think that these individuals are entirely at the behest of their own material conditions. The asymmetrical influence that these material conditions have on us—the proletariat being exploited by these material conditions and the bourgeoisie benefitting from them—leads Marx to draw moral conclusions: exploitation is bad and satisfaction of species-being is good . What Marx fails to do is recognize that he is a product of his own material conditions, and so are his theory and determinations of “good” and “bad.” The quasi-utopian society that is only permitted by the revolution is itself borrowing descriptions from the idealized lifestyles of the bourgeoisie. In The German Ideology , Marx suggests that man in a capitalist society is “a hunter, a fisherman, a shepherd, or a critical critic, and must remain so if he does not want to lose his livelihood,” which is true for most working-class individuals. He then adds that in a communist society that same man may “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticize after dinner, just as [he has] a mind, without ever becoming hunter, fisherman, shepherd or critic” (27). The ability to actively satisfy one’s species-being, or to do as one pleases without the alienating incentives required by capitalism, is simply the universalization of bourgeois life—it’s not hard to imagine that these hypothesized jacks-of-all-trades did exist in 19th century Europe, they just happened to be the elite. He who can labor (or engage in any productive activity) without being defined by that labor is a privilege of the ruling class—and one that Marx identifies as good and therefore preferable. In other words, a communist society destroys class conflicts by creating the conditions of one class for all classes. This is not to say that Marx is proposing an egalitarian utopia as his positive project, since he does believe in a relatively heterogeneous society living by the mantra “From each according to his ability, to each according to his needs”(28). Moreover, the concept of class itself is theorized to dissolve post-revolution, but this does not mean that Marx’s ideal conditions for all human beings aren’t plagiarizing the conditions of a single class as observed pre-revolution. When workers own the means of production rather than capitalists, they will have the resources, leisure time, and material conditions to produce in accordance with their species-being and satisfy Marx’s normatively defined purpose (or achieve his own concept of “good”). Like Kant, Marx is creating his own causa sui . A Nietzschean contribution to Marxism might argue, then, that capitalism must be deconstructed in the same way that we might deconstruct Christian morality: not with the intent of replacing these superstructures with our own normative solution, but by interrogating them to essentially see where it takes us. Again, the elusive free spirit is not an indirect, self-congratulatory description of the value of Nietzsche’s own theories, nor is it a pessimistic and nihilistic acceptance that nothing truly matters. Rather, it is a new theory in itself—one that considers the possibilities of a new generation of entirely self-affirming thinkers stripped of their prejudices and social restraints. IV. Conclusion Marx’s ultimate conclusion is that a history of society determined by material conditions leaves us no choice but to reject our current modes of production in favor of a society that complements the satisfaction of our species-being. If we don’t, then capitalism will destroy itself anyway. Marx certainly presents himself as a revolutionary determined to unite the working men of all countries toward a common purpose, but it’s difficult to reconcile this call for individual agency toward a collective purpose with the material conditions that seem to govern us regardless of that agency. Marx’s own logic is, again, itself determined by the superstructures he seeks to identify; he is no more or less a product of them than any of the characters in his theory. The vain assertion of a universal truth that is species-being simply uses his own normative definition of what is good by borrowing language from those who have already determined what is good: the bourgeoisie. Consequently, we see his proposed political meta-narrative, that contradictory principles of capitalism inevitably lead to the realization of human emancipation, is at best incomplete and at worst deeply flawed. In the case of the former, we can at least use Marx’s critique of capital to understand how material conditions have shaped our world views: they can determine incentives, exploit workers based on factors beyond their immediate control, or assign value to both people and commodities. These are invaluable critiques that have wide-ranging implications, but they are nowhere near close enough to providing an all-encompassing system of human behavior. In the case of the latter, however, we are met with the dangerous hubris of which Nietzsche is so suspicious. The true nature of anything can only be understood by simultaneously interrogating our prejudices and assumptions while recognizing the need for multiple perspectives. Truth ought to be sought after, but it is extremely elusive and mystified by social constructs, whether they be political, material, moral, sexual, racial, or otherwise. From a postmodernist perspective, Nietzsche was perhaps prodigal. Today, we live in a pluralist world that is constantly challenging the normative assumptions that structure so much of our interconnected lives. Critical race theory has interrogated the fundamental principles of our facially neutral laws; emerging disciplines of queer and feminist studies have reshaped the way we understand and perform our gender and sexuality; successive generations of increasingly agnostic individuals have undermined religiously-grounded social norms to further liberate the arts and create a vibrant pop culture. Social media alone has become one of the greatest conduits for self-expression and has created channels of communication that the world has never before seen. Everything from college campuses to corporate boardrooms have acknowledged the importance of representation and diversity in order to create more inclusive communities. The 21st century is an era of interrogation that requires one to accept a multiplicity of perspectives. Ultimately, it could be said that we are unified by a common obligation to better understand each other. In a way, Marx becomes the casualty to which Talib Kweli is referring in his verse. The idealization of a satisfied species-being is arguably a normality defined by what is expected of human beings in a capitalistic world: to enjoy their work. It is not difficult to imagine that this is actually abnormal, and the entire concept of labor as we understand it could transform or even wither away in the epochs to come due to technology, climate change, or some other unforeseen development. Nietzsche therefore becomes a critical theorist superseding even Marx, for he seeks to critique not just one superstructure but all the superstructures that limit our ability to define for ourselves what is good, bad, evil, true, rational, or authentic. Political philosophy ought to continue elevating the voices that provide these pointed critiques and encourage generations of free spirits as they come. As Kweli might argue, to truly engage in philosophy is to suspect any normality as actually abnormal, and not suffer as a casualty of its misleading assumptions. Rather, we ought to use these suspicions in the service of life and work towards the most ideal form of social organization we can find while recognizing that there is always work to be done. Endnotes 1 Black Star. “Respiration (feat. Common).” Track 11 on Mos Def and Talib Kweli Are Black Star . Rawkus Records, 1998, CD. 2 Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 451. New York, New York: Modern Library, 1967. 3 Marx, Karl and Friedrich Engels. “The Communist Manifesto.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 473. New York, New York: Norton, 1978. 4 Ibid, 474. 5 Ibid, 475. 6 Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 150. New York: Norton, 1978. 7 Ibid, 150. 8 Marx, Karl, and Friedrich Engels. “Capital, Volume One.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 437. New York, New York: Norton, 1978. 9 Ibid, 438. 10 Marx, Karl, and Friedrich Engels. “Economic and Philosophic Manuscripts of 1844.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 76. New York, New York: Norton, 1978. 11 Ibid, 72-77; Marx describes species-being at length throughout the Manuscripts. 12 Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 193. New York, New York: Modern Library, 1967. 13 Ibid, 202. 14 Ibid, 207-208. 15 Ibid, 204. 16 Ibid, 201. 17 Ibid, 193. 18 Ibid,. 555. 19 Ibid, 555. 20 Ibid, 242-243. 21 Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 472–479. New York, New York: Modern Library, 1967.; Nietzsche describes his master-slave dichotomy of morality throughout the first essay of his Genealogy , though particularly in sections 10, 11, 12, and 13. 22 Ibid, 480. 23 Ibid, 481. 24 Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 393. New York, New York: Modern Library, 1967. 25 Nietzsche, Friedrich. On the Advantages and Disadvantages of History for Life . Translated by Peter Preuss. Indianapolis, Indiana: Hackett Publishing Co., 1980. 44 26 Ibid, 45. 27 Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 160. New York: Norton, 1978. 28 Marx, Karl, and Friedrich Engels. “Critique of the Gotha Program.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 531. New York: Norton, 1978. References Black Star. “Respiration.” Track 11 on Mos Def and Talib Kweli Are Black Star . Rawkus Records, 1998, CD. Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 437–601. New York, New York: Modern Library, 1967. Marx, Karl, and Friedrich Engels. “The Communist Manifesto.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 469–500. New York, New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “The German Ideology.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 146–200. New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “Capital, Volume One.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 294–438. New York, New York: Norton, 1978. Marx, Karl, and Friedrich Engels. “Economic and Philosophic Manuscripts of 1844.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 66–125. New York, New York: Norton, 1978. Nietzsche, Friedrich. “Beyond Good and Evil.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 179–435. New York, New York: Modern Library, 1967. Nietzsche, Friedrich. “On the Genealogy of Morals.” Essay. In Basic Writings of Nietzsche , translated by Walter Arnold Kaufmann, 437–601. New York, New York: Modern Library, 1967. Nietzsche, Friedrich. On the Advantages and Disadvantages of History for Life . Translated by Peter Preuss. Indianapolis, Indiana: Hackett Publishing Co., 1980. Marx, Karl, and Friedrich Engels. “Critique of the Gotha Program.” Essay. In The Marx-Engels Reader , edited by Robert C. Tucker, 525–542. New York: Norton, 1978. Previous Next

The Burden of Innocence: Arendt’s Understanding of Totalitarianism through its Victims Elena Muglia Author Emerson Rhodes Meruka Vyas Editors Hannah Arendt set out to describe an ideology and government that burst past understandings of politics, morality, and the law asunder. In Origins of Totalitarianism , Arendt argues that totalitarianism could not fit into previous political typologies. Instead, it navigates between definitions of political regimes like tyranny and authoritarianism, as well as distinctions historically made between lawlessness and lawfulness, arbitrary and legitimate power. Even then, Arendt holds on to the idea that totalitarianism can be described and analyzed despite escaping traditional understanding as a political ideology and system. In the preface of the first edition, Arendt expresses this hope, writing that Origins was: “Written out of the conviction that it should be possible to discover the hidden mechanics by which all traditional elements of our political and spiritual world were dissolved into a conglomeration where everything seems to have lost specific value and has become unrecognizable for human comprehension, unusable for human purpose.” One of the traditional elements of our “political and spiritual” world that she inquires about are questions of innocence, guilt, and responsibility. How can these concepts, which have both moral and legal implications, be applied and understood in the case of Nazi Germany, a regime void of morality and legality? Many political theorists have explored Arendt’s understanding of guilt in her report Eichmann in Jerusalem . In the report, Arendt utilizes Adolf Eichmann’s case—a Nazi Party official who helped carry out the Final Solution—to provide a concrete example of someone who is guilty but does not fit traditional understandings of what is required to be criminally guilty. Alan Norrie points out that Arendt exposes the tension between Eichmann’s lack of criminal intent, mens rea , and his criminal and evil actions (Norrie 2008. 202). The totality of totalitarianism complicates his criminal guilt, as Nazi Germany rendered every member of society complicit in its crimes. To unpack this complex nexus of guilt and responsibility, Iris Young looks at two of Arendt’s essays; “Organized Guilt and Universal Responsibility” and “Collective Responsibility” (Young 2011, 90). Young outlines how Arendt understands guilt as centered on the self, while responsibility implies a relationship with the world and membership in a political community (Young 2011, 78). Guilt arises from an objective consequence of somebody’s actions (Young 2011, 79) and is not a product of someone’s subjective state. With this understanding, everybody in Nazi Germany was responsible (irrespective of whether they took up political responsibility), but not everybody was guilty. Those who acted publicly against the Nazi Regime, like the Scholl siblings, took up political responsibility in a positive sense (Young 2011, 91). Richard Bernstein, who also discusses Eichmann, shares this understanding with Young—Eichmann is criminally guilty, but bystanders are not. Bernstein, however, elucidates that the bystanders’ responsibility is imperative to understand because their complicity was an “essential condition for carrying out the Final Solution” (Bernstein 1999, 165). By focusing on the areas of guilt and responsibility and primarily looking at Eichmann, however, these scholars leave a theoretical gap in understanding the relationship between the victims—the stateless and Jewish people for Nazi Germany—and totalitarian ideology. These groups lack political responsibility within the totalitarian system because their innocence implies a separation from the world and a political community. In her essay “Collective Responsibility,” Arendt notes that the twentieth century has created a category of men who “cannot be held politically responsible for anything” and are “absolutely innocent.” The innocence of these victims and their apoliticality strikes at the heart of why Arendt postulates that totalitarian ideology and terror constitute a novel form of government—“[it] differs essentially from other forms of political oppression known to us such as despotism, tyranny and dictatorship.” Totalitarianism targets victims en masse , but their status as victims is not based on any action they take against the regime. While Norrie, Young, and Bernstein all address that Arendt thinks that any “traditional” conception of the relationship between law and justice cannot be applied to totalitarianism directly, by focusing primarily on Eichmann, they are missing and understanding of a group of people that allowed totalitarianism to explode these notions. By tracking and parsing through Arendt’s understanding of the innocents and innocence in Origins of Totalitarianism and placing it in conversation with her understanding of action in The Human Condition, I elaborate on the unique and lack thereof, political relationship between totalitarian ideology and the innocents. I argue that the condition of innocence of the victims represents the essence of totalitarianism’s unique form of oppression and negation of the human condition. The positioning of the innocents in a totalitarian society acts as a lens for how totalitarianism aims to reshape traditional notions of political, moral, and legal personhood. I demonstrate this by first outlining what created fertile ground in the 20th century for the condition of rightlessness of the innocents. Second, I highlight how the targeting of innocents in concentration camps lies at the heart of totalitarianism’s destruction of the juridical person—someone who is judged based on their actions. Third, I argue that by bending any notions of justice, totalitarianism destroys the moral person, a destruction that is best expressed in the innocents’ lack of internal freedom. Finally, I argue that all these components entail severing the victims from a world where they can appear and be recognized as humans. Overall, I contend that while many of the techniques unleashed on the innocents apply, to an extent, to everyone under totalitarianism, including people like Eichmann, the innocents represent the full realization of totalitarianism’ attempt to alter the essence of a political and acting person. To understand how totalitarian regimes created a mass of ‘superfluous’ people who existed outside the political realm, it is first necessary to highlight what conditions Arendt thinks sowed fertile ground for totalitarian domination and terror in the first place. A crucial condition is rooted in the failures of the nation-state in dealing with the new category of stateless people in the interwar period in Europe. Following WWI, multiethnic empires, like the Austro-Hungarian and Ottoman empires, dissolved, which led Europe to resort to the familiar nation-state principle—presuming that each nationality should establish its state. As Ayten Gundogdu writes, “the unquestioning application of this principle turned all those who were ‘ejected from the old trinity of state-people-territory’ into exceptions to the norm” (Gundogdu 2014, 31). These exceptions to the norm, as were Jewish people, could not be repatriated anywhere because they did not have a nation. Instead of integrating these minorities and making them fully-fledged political members, policies like Minority Treaties codified minorities as exceptions to the law. The massive scale of refugees that existed outside a political community left a set of people without any protections apart from the ones that the state gave out of their own prerogative and charitable actions. This stateless crisis crystallized, for Arendt, the aporia of human rights—even though human rights guarantee universal rights, irrespective of any social and political category, they are enforced based on political membership. Human rights end up being the rights of citizens, leading the stateless to a condition of “absolute rightlessness.” This condition of rightlessness does not entail the loss of singular rights—just like the law temporarily deprives a criminal of the right to freedom—but a deprivation of what Arendt calls the right to have rights. Defined by Arendt as a right to live “in a framework where one is judged by one’s actions and opinions.” Instead of being judged based on actions or opinions, the stateless are judged based on belonging to a group outside the nation. This innocence, an inability to be judged based on one’s deeds and words, is the defining mark of the statelessness’ loss of a “political status” (Arendt 1951, 386), which primes these groups of people for the particular form of oppression that totalitarianism entails. While the stateless and their condition of rightlessness was constructed even before Nazi Germany, the existence and the continuous creation of a mass of innocents lies at the core of the raison d’étre of totalitarian politics. According to Arendt, totalitarianism operates based on a law of Nature and History, which has “mankind” as an end product, an “‘Aryan’ world empire” for Hitler. Mankind becomes the “embodiment” of law and justice. Jewish people, under Nazi Germany, are portrayed as the “objective enemy” halting nature’s progression, whereby every stage of terror is seen as a further development that is closer to achieving the development of the ultimate human. This continuous need to follow a Darwinian law of nature leads Arendt to define one of totalitarianism’ defining features as the law of movement: the only way that totalitarian regimes can justify their existence, expansion, and domination, and it relies almost entirely on the group of innocents. The innocents are crucial components of the concentration camps because they are placed there alongside criminals who have committed an action. If they only targeted “criminals” or those that committed particular actions, the Nazi party would have scant logic to fulfill its law of movement. The “innocents” are “both qualitatively and quantitatively the most essential category of the camp population.” in the sense that they exist in an “enormous” capacity and will always be present in society. Totalitarianism relies on innocents because their existence removes any “calculable punishment for definite offenses.” Totalitarian politics aim, eventually, to turn everyone into an innocent mass that could be targeted, not because of their actions, but their existence. Even criminals were often sent to concentration camps only after they had completed their prison sentences, meaning they were going there not because of their criminal activity but rather arbitrarily, sacrificing a mass in favor of the laws of history and nature. The condition of rightlessness combined with total domination, exerted through the concentration camps, obliterates the juridical person for all the victims of totalitarianism. The juridical person is the foundation of modern understandings of law, constituting a person who bears rights and can exercise rights and who, in derogation of the law, faces proportional and predictable consequences. By destroying the juridical person and turning its victims into a mass of people who exist outside any legal framework and logic, totalitarianism operates beyond any previously conceived notions of justice. As Arendt explains: “The one thing that cannot be reproduced [in a totalitarian regime] is what made the traditional conceptions of Hell tolerable to man: the Last Judgment, the idea of an absolute standard of justice combined with the infinite possibility of grace. For in the human estimation, there is no crime and no sin commensurable with the everlasting torments of Hell. Hence the discomfiture of common sense, which asks: What crime must these people have committed in order to suffer so inhumanly? Hence also the absolute innocence of the victims: no man ever deserved this. Hence finally the grotesque haphazardness with which concentration camp victims were chosen in the perfected terror state: such punishment can, with equal justice and injustice, be inflicted on anyone .” By “traditional conceptions of Hell” tolerable to man, Arendt means a Hell where every individual will be judged based on their actions and nothing else on the day of the Last Judgment. Totalitarianism shatters this idea and any existence of an “absolute standard of justice” through the concentration camps, which creates Hell on earth but without any rightful last judgment. Even more importantly, because of these innocents and the arbitrariness and “haphazardness” of the way they are chosen, Arendt explains that state punishment can be “inflicted on anyone.” A tyranny targets the opponents of a regime or anyone who causes disorder, but totalitarianism cannot be understood through such a utilitarian lens. As Arendt points out in various places in Origins , without understanding totalitarianism’ “anti-utilitarian behavior.” it is difficult and impossible to understand its use in targeting people who commit no specific action against the regime. Concentration camps and terror materialize the law of movement like positive law materializes notions of justice in lawful governments. The guilty are innocents who stand in the way of movement. Totalitarianism does not only operate outside any traditional forms of legality and juridical personhood but also transcends any understanding of morality—the moral person is destroyed just as the juridical one is; and this is, once again, fully expressed through the treatment of innocents who become the ideal subject of totalitarianism. The ideal subject of totalitarianism lacks both internal and external freedom—which is precisely what is imposed on the victims. A lack of internal freedom implies an inability to distinguish right and wrong. As Arendt explains, “totalitarian terror,” in the concentration camps, achieves triumph when it cuts the moral person from “the individualist escape and in making the decisions of conscience questionable and equivocal.” The Nazi Regime achieved this by asking the innocent to make impossible decisions that involved balancing their own life and the ones of their families. This often involved a blurring of “the murderer and his victim.” by involving even the concentration camp inmates in the operations of the camp. Concerning this, Robert Braun talks about Primo Levi’s discussion of the complicated victim—explaining that those who survived the concentration camps are always seen as suspect because of these blurred lines (Braun 1994, 186). Arendt has a parallel opinion to Levi that focuses more on those victim’s subjective state, explaining that when they return to the “word of the living,” they are “assailed by doubts” regarding their truthfulness. The innocents represent the perfect totalitarian subject as their doubts represent an inability to distinguish between truth and falsehood, which Arendt describes as the “standards of thought.” What is most striking about the destabilization of conscience is that it results in an inability to a freezing effect and an inability to act. As Arendt explains, “Through the creation of conditions under which conscience ceases to be adequate and to do good becomes utterly impossible, the consciously organized complicity of all men in the crimes of totalitarian regimes is extended to the victims and thus made really total.” Regardless of what “good” entails, doing it entails committing an action that is for others. Doing good can be understood as analogous to how Young interprets Arendt’s understanding of political responsibility… further explaining how the victims are left to a condition of non-responsibility through their inability to both distinguish what is right and wrong, and act on it. The erasure of “acting” in totalitarianism gains new meaning, or rather a more comprehensive explanation, when looking at Arendt’s discussion of acting in The Human Condition. Arendt’s work in The Human Condition illuminates the full extent of why acting becomes impossible under totalitarianism, especially for its victims. As Nica Siegel explains, an essential aspect of her understanding of action in The Human Condition is the spatialized logic that grounds action in a space where one can “reveal their unique personal identities and make their appearance in the world.” Only in this way can an action take place as it has a “who”—a unique author—at its root, and thus has the potential to create new beginnings. With this understanding, totalitarianism is the antithesis of action for everyone, to an extent, but completely for the innocent. Totalitarianism removes their space to act internally—through the destruction of conscience explained in the previous section—and externally—removing any place to appear publicly. The innocent are removed from the rest simply by being in the concentration camps, isolated from everyone else but also from one another. This means that totalitarianism, in practice, removes any source and space for spontaneity. Arendt defines spontaneity in Origins almost identically to how she defines action in The Human Condition , saying that spontaneity is “man’s power to begin something new out of his resources, something that cannot be explained on the basis of reactions to environment or events.” This condition of the innocent also illuminates why creating new and making a political statement is impossible under totalitarianism. As Arendt explains, “no activity can become excellent if the world does not provide a proper space for its exercise.” As with many other tactics in totalitarianism, this lack of excellence and new beginnings is rooted in the fate of the innocents. Nobody’s actions can “become excellent” if they face the same consequences of the concentration camp as the mass of those who commit no action. This is why under totalitarianism, “martyrdom” becomes “impossible.” Just as totalitarianism assimilates criminals with innocents in their punishment, political actors are also assimilated to this category, as they are “deprived of the protective distinction that comes of their having done something,” just as the innocents are. What totalitarianism does to its victims is, therefore, a symptom of its wider perversion of human individuality and action in general. Even perpetrators like Eichmann lose their sense of individuality—A.J. Vetlesen has described the phenomenon as a double dehumanization between the victims and the perpetrator Every bureaucrat in Nazi Germany was replaceable and totalitarianism made them feel, paradoxically, “subjectively innocent,” in the sense that they do not feel responsible for their actions “because they do not really murder but execute a death sentence pronounced by some higher tribunal.” Jalusic argues that both aspects of humanization have in common, the “loss of the human condition.”, but what Jalusic misses is that Vetlesen, by arguing that it is the persecutors that dehumanize themselves to avoid personal responsibility and alienate themselves from their actions—thus going against the cog in the machine theory. The perpetrators retain a level of agency that is ultimately denied to the victims. The victims do not alienate themselves from their actions, as they cannot act in the first place. When Nazi officials send victims to the concentration camp, they lose any ability to appear and thus face a loss of the human condition, as Arendt describes in The Human Condition, “A life without speech and without action, on the other hand-and this is the only way of life that in earnest has renounced all appearance and all vanity in the biblical sense of the word-is, literally dead to the world; it has ceased to be a human life because it is no longer lived among men” The emphasis she places on action as being an essential part of living “among men” explains why, according to her, totalitarianism, unlike other forms of oppressive governments, transforms “human nature itself.” While she uses the term “human nature,” she makes a strict distinction between human nature and condition in The Human Condition , arguing that it is impossible for us to understand human nature without resorting to God or a deity. Even in Origins , when talking about human nature, she criticizes those, like the positivists, who see it as something fixed and not constantly conditioned by ourselves. In light of her understanding of the human condition, I argue that Arendt means that totalitarianism undermines an essential part of the human condition, not human nature. Arendt views the human condition, as opposed to human nature, as being rooted in plurality. By plurality, she means that each individual is uniquely different but also shares a means of communication with every other individual, and thus, the ability of each individual to make themselves known and engage with one another. With this in mind, “human plurality is the basic condition for both action and speech,” as each individual can make a statement and be understood by others. The treatment of victims and their innocence as their defining factor highlights that fellow humans can distort and condition crucial aspects of our human condition in favor of laws that pretend that humans can instill justice and nature on earth. To a degree, totalitarianism subjects everyone to the conditions of “innocence” that victims face. What distinguishes the victims from other agents under totalitarianism is that they demonstrate the ability of totalitarian ideology to instill a complete condition of innocence by playing a person entirely outside any political and legal realm and, by extension, outside of mankind. Innocence under totalitarianism is not a negative condition—in the sense of not having done anything, not taking action—but it is primarily a lack of positive freedom—the ability to do something and act. Arendt’s understanding of innocence elaborates on the unique condition of superfluousness under totalitarianism. This ‘superfluousness’ is justified through a legal and political doctrine that explodes past legal and normative frameworks by being based on movement instead of stability. The law of nature is in a constant process of Darwinian development, with the superfluous innocents as the sine qua non to keep going. A lot of what happens to the innocents, as their obliteration of a space to act, does happen to everyone under totalitarianism; however, the innocents bear the full expression of totalitarianism and fight past notions of moral, political, and legal personhood. The innocents are not only cut off from this personhood but also from what Arendt thinks it means to be human, as they represent an inability to do what human beings do, which is to create beginnings through spontaneous action. The unique condition of innocence that the victims of totalitarianism face exposes totalitarianism’s own legal and political theory. The Law of Nature that Nazi Germany espouses here cannot exist without the realization of a group of innocents who prove the nihilistic idea that humans can be sacrificed for perfected mankind. As Arendt explains, the concentration camps are where the changes in “human nature are tested.” We can only understand how totalitarianism could occur by looking at this unique political erasure. The terror and fate of the innocents act as proof for everyone in the totalitarian regime that they could be next. The status of the victims also sheds lights on the inexplicable deeds that Eichmann committed, as Arendt writes that one of the few, if not only one, discernible aspects of totalitarianism is that “radical evil has emerged in connection with a system in which all men have become equally superfluous.” Totalitarianism proves that it is fellow humans who are dehumanized, albeit to a different degree, who completely sever an individual’s ties from political and legal structures meant to protect them. This conclusion and elaboration of the peculiar form of oppression and domination of totalitarianism has pressing practical and theoretical implications for modern-day politics. As Arendt explains, totalitarianism is born from modern conditions, and so looking at how modern polities can and do create superfluousness can be a thermometer for descent into totalitarianism. After all, it is important to remember that statelessness in the 20th century came before totalitarianism’s domination and terror. References Arendt, Hannah. “Collective Responsibility.” Amor Mundi: Explorations in the Faith and Thought of Hannah Arendt , edited by S. J. James W. Bernauer, Springer Netherlands, 1987, pp. 43–50. Springer Link , https://doi.org/10.1007/978-94-009-3565-5_3. ---. Eichmann in Jerusalem: A Report on the Banality of Evil . Penguin Books, 2006. ---. The Human Condition: Second Edition . Edited by Margaret Canovan and a New Foreword by Danielle Allen, University of Chicago Press. University of Chicago Press , https://press.uchicago.edu/ucp/books/book/chicago/H/bo29137972.html. Accessed 8 May 2024. ---. The Origins of Totalitarianism . 1951. Penguin Classics, 2017. Benhabib, Seyla. “Judgment and the Moral Foundations of Politics in Arendt’s Thought.” Political Theory , vol. 16, no. 1, 1988, pp. 29–51. JSTOR , https://www.jstor.org/stable/191646. Bernstein, Richard J. “Responsibility, Judging, and Evil.” Revue Internationale de Philosophie , vol. 53, no. 208 (2), 1999, pp. 155–72. JSTOR , https://www.jstor.org/stable/23955549. Braun, Robert. “The Holocaust and Problems of Historical Representation.” History and Theory , vol. 33, no. 2, May 1994, p. 172. DOI.org (Crossref) , https://doi.org/10.2307/2505383. Gundogdu, Ayten. Rightlessness in an Age of Rights . Oxford University Press, 2015. DOI.org (Crossref) , https://doi.org/10.1093/acprof:oso/9780199370412.001.0001. Jalusic, Vlasta. “Organized Innocence and Exclusion: ‘Nation-States’ in the Aftermath of War and Collective Crime.” Social Research , vol. 74, no. 4, 2007, pp. 1173–200. JSTOR , https://www.jstor.org/stable/40972045. Norrie, Alan. “Justice on the Slaughter-Bench: The Problem of War Guilt in Arendt and Jaspers.” New Criminal Law Review , vol. 11, no. 2, Apr. 2008, pp. 187–231. DOI.org (Crossref) , https://doi.org/10.1525/nclr.2008.11.2.187. Siegel, Nica. “The Roots of Crisis: Interrupting Arendt’s Radical Critique.” Theoria: A Journal of Social and Political Theory , vol. 62, no. 144, 2015, pp. 60–79. JSTOR , https://www.jstor.org/stable/24719945. Vetlesen, Arne Johan. Evil and Human Agency: Understanding Collective Evildoing . 1st ed., Cambridge University Press, 2005. DOI.org (Crossref) , https://doi.org/10.1017/CBO9780511610776. Young, Iris Marion, and Martha Nussbaum. Responsibility for Justice . Oxford University Press, 2011. DOI.org (Crossref) , https://doi.org/10.1093/acprof:oso/9780195392388.001.0001.