Meta-Paris

I confess: I was fascinated by visions of Paris this last Friday. More precisely, I was fascinated by the response to her physical return to the system. I thought at first it was just garden-variety schadenfreude but after a bit of reflection (such as it is) I think the episode speaks more to the importance the public attaches to an unspecified but deeply felt sense of fairness. I don’t think it’s that important, or even possible, to define exactly where this line lies; it’s probably not possible to do so, even if someone were foolish enough to try (hello?). But it does exist, and it’s dangerous to cross it, so I’m going to try to delineate its shape rather than its precise location.

We have three points this week for location purposes. First, we have Paris and the general outpouring of unhappiness at the idea that she would be released from jail before serving a certain number of days. I don’t think it matters whether its 23 days or 45 days; what matters is that it not be less than a week. In other words, her release triggered a sense of unfairness in that she should receive the same treatment as a similarly situated poor person might.

Point number two for the week was the defeat of the immigration bill. As recounted in the NYT a great number of “ordinary” people made their opposition to the immigration bill known, and the upshot was the bill’s defeat. For many people it seems that the question was one of fairness, as the story illustrates by quoting a woman who’d performed volunteer work but thought it was unfair to give out benefits to people who’d broken the rules. (Note to my three readers: I’m not taking a stance on a solution to the illegal immigration debacle here.)

Point number three is interesting because it comes from an unlikely source: a U.S. District Judge. I’m referring to the footnote where the judge, in the course of granting a motion for leave to file an amicus brief on behalf of Mr. Libby, suggests that the prominent conservative academics running to support Mr. Libby should also expect to be called upon to use their skills on behalf of less well-heeled defendants. Now, it’s true that strictly speaking, this is more snark than claim of fairness. But still, it makes its point by bluntly comparing the spectacle of these academics rushing to Libby’s defense with the lack of resources that other, poorer defendants face in the system. (There’s another take on the Paris-Scooter juxtaposition at Balkinization.)

Taking these three points together, what we have are three examples of an unwillingness to accept a degree of unfairness that seems beyond the norm. In other words, two of these events roused the general public, and the third roused a District Judge to protest elite “business as usual.” What’s my point? Just this: Americans will tolerate a great deal of structural unfairness, perhaps in the service of particular ideologies, preferences, or wants, but somewhere there’s a notion of fairness that kicks in when pressed hard enough. I know of no one who wouldn’t agree that one’s experience in the legal system is likely to be a better one if one has more money. Most people accept that, just as they accept a certain amount of imbalance in other aspects of their lives. At some point, however, the limit of tolerance is reached, and the cry of “unfair” goes up. Why does this matter? It matters because it’s useful to get a sense of where the bottom line in unfairness resides; it’s a fault line through American life. Perhaps all these episodes demonstrate is that the floor of unfairness is pretty low. Still, it’s reassuring to know that there’s some point beyond which even Americans resist the call of self-indulgence.