Socialists Against Open Borders

Bernie Sanders is the U.S. Senator from Vermont, and a self-declared 'democratic socialist'. Until very recently, that label was about as successful in US politics as 'unrepentant pederast'. But now Sanders is running for the Democratic presidential nomination against Hillary Clinton. Although he has almost no chance of winning it, he is attracting huge crowds and plenty of attention, and is clearly forcing Clinton to the left. Sanders is easily the most left-wing serious candidate for a Presidential nomination in at least 15, if not 50 years. He would certainly be my choice for President.

And he's strongly against open borders:

Ezra Klein

You said being a democratic socialist means a more international view. I think if you take global poverty that seriously, it leads you to conclusions that in the US are considered out of political bounds. Things like sharply raising the level of immigration we permit, even up to a level of open borders. About sharply increasing ...

Bernie Sanders

Open borders? No, that's a Koch brothers proposal.

Ezra Klein

Really?

Bernie Sanders

Of course. That's a right-wing proposal, which says essentially there is no United States. ...

...

Ezra Klein

It would make a lot of global poor richer, wouldn't it?

Bernie Sanders

It would make everybody in America poorer —you're doing away with the concept of a nation state, and I don't think there's any country in the world that believes in that. If you believe in a nation state or in a country called the United States or UK or Denmark or any other country, you have an obligation in my view to do everything we can to help poor people. What right-wing people in this country would love is an open-border policy. Bring in all kinds of people, work for $2 or $3 an hour, that would be great for them. I don't believe in that. I think we have to raise wages in this country, I think we have to do everything we can to create millions of jobs.

You know what youth unemployment is in the United States of America today? If you're a white high school graduate, it's 33 percent, Hispanic 36 percent, African American 51 percent. You think we should open the borders and bring in a lot of low-wage workers, or do you think maybe we should try to get jobs for those kids?

I think from a moral responsibility we've got to work with the rest of the industrialized world to address the problems of international poverty, but you don't do that by making people in this country even poorer.

Ezra Klein

Then what are the responsibilities that we have? Someone who is poor by US standards is quite well off by, say, Malaysian standards, so if the calculation goes so easily to the benefit of the person in the US, how do we think about that responsibility?

We have a nation-state structure. I agree on that. But philosophically, the question is how do you weight it? How do you think about what the foreign aid budget should be? How do you think about poverty abroad?

Bernie Sanders

I do weigh it. As a United States senator in Vermont, my first obligation is to make certain kids in my state and kids all over this country have the ability to go to college, which is why I am supporting tuition-free public colleges and universities. I believe we should create millions of jobs rebuilding our crumbling infrastructure and ask the wealthiest people in this country to start paying their fair share of taxes. I believe we should raise the minimum wage to at least 15 bucks an hour so people in this county are not living in poverty. I think we end the disgrace of some 20 percent of our kids living in poverty in America. Now, how do you do that?

What you do is understand there's been a huge redistribution of wealth in the last 30 years from the middle class to the top tenth of 1 percent. The other thing that you understand globally is a horrendous imbalance in terms of wealth in the world. As I mentioned earlier, the top 1 percent will own more than the bottom 99 percent in a year or so. That's absurd. That takes you to programs like the IMF and so forth and so on.

But I think what we need to be doing as a global economy is making sure that people in poor countries have decent-paying jobs, have education, have health care, have nutrition for their people. That is a moral responsibility, but you don't do that, as some would suggest, by lowering the standard of American workers, which has already gone down very significantly.


You Cannot Film the Police in Germany

The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.

Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.

Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.

Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.

The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy -- legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.  

Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:

  • Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly. 
  • Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense. 
  • Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
  • Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
  • Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.

So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet -- as Americans do hundreds of times every day -- you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.


'Other People's Indians' and Germany's Minority-Filled Prisons

In one of his essays from the 1976 book Emperor of the Earth: Modes of Eccentric Vision, Czeslaw Milosz reminisces about the 19th-century American novelist Thomas Mayne Reid. Reid wrote Western novels which became popular after they were translated into Russian, and is probably still more famous in Eastern Europe than in the USA. Milosz noted a curious fact: Reid's novels contained matter-of-fact scenes in which European Americans slaughtered and multilated American Indians and vice-versa -- but when it came to the fate of Montezuma at the hands of the perfidious Papist conquistadores, Mayne penned a gushing tribute to the nobility of the hapless Aztecs. Milosz notes in an aside: 'as often happens, Reid loved Indians, but only “their” Indians.'

'Other peoples' Indians': The tendency to attribute poor integration of minorities in other countries exclusively to the majority's racism, but the poor integration of minorities in your country to deficiencies among the minorities. And the OPI effect is alive and well. Let's take an example. Here's a graph of the percentage of foreigners (adapted from statista) among the prison populations in a variety of European countries:

Untitled

Switzerland tops the list with a whopping 74.2%. Yes, you read that right: 74.2% of the people in Swiss prisons are not Swiss. Germany is nowhere near as skewed; only 27.9% of its prisoners are foreigners. But keep in mind that German only counts foreign nationals in its prisons. If you are of Turkish or Moroccan ancestry but have a German passport, you are not included.

If you define an ethnic minority in Germany the way most legal systems do -- someone whose external appearance is different from the native population and who has been the victim of discrimination by the majority native population -- then the number of ethnic minorities in German prisons, I am sure, would be at least 50%. There are no reliable statistics I have yet seen to prove this, because Germany doesn't keep them (see no evil, hear no evil, speak no evil). But I've visited many German criminal courts, talked to cops, prosecutors and defense lawyers, and been to German prisons. Everybody recognizes the vast over-representation of ethnic minorities in German prisons as an everyday fact of life that only the most reality-resistant Green Party ideologue would ever contest. I am happy to be corrected on this, but nobody has so far succeeded.*

So, Germany's prisons are filled with a disproportionate number of ethnic minorities, just as America's prisons are. Now is where things get interesting. Why is that the case? Here is the explanation you will find in the average German newspaper:

  • Blacks and certain other minorities are over-represented in American prisons. It is inconceivable that this could be the product of higher rates of violent crime among American blacks. The reason for this over-representation must be discrimination in the American justice system. [Illogical but frequent further conclusion:] Therefore, America is an irredeemably racist society.
  • Ethnic minorities are over-represented in German prisons. Since there is no racial discrimination within the German criminal justice system, which is staffed by honorable professionals, these conviction rates reflect reality: minorities commit crimes that get you in prison more frequently than ethnic Germans commit them. This is because minorities tragically fail to adapt properly to German society, despite the noble efforts we Germans make to help them. [Illogical but frequent further conclusion:] The fact of their crime rates must be concealed and obfuscated as much as possible, since it could feed into right-wing stereotypes of 'criminal' immigrants.

I could find dozens of examples to back up these narratives, but since we all know that, I'll just skip it. I will point to an interesting counter-example, though, from Focus of all places: in an article about German prisons, the author notes (g) quotes an expert and a study showing that German judges gave noticeably longer sentences for the same crime when the offender had a Turkish name rather than a German one. But that's still the exception.

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When Can German Police Stop and Question You?

Public service time! In the USA, there is a cottage industry of people spreading the word about what rights citizens have during encounters with police. One of the best videos is from 'Flex Your Rights'. It's just below. The video addresses automobile stops and house searches, but I decided to concentrate on this post on police stopping and questioning people on foot. The video starts just as a a police car pulls up to question a young black male. The cops are investigating illegal graffiti in the area. The lawyer comments on each step of the transaction: 

So what's the situation in Germany? A popular German legal website has a short but informative article here (g). The basic ground rules:

Police must always give you a reason for stopping and questioning you. However, this reason does not alway have to be a concrete suspicion. In certain circumstances police are permitted to stop people as a preventive measure to avoid dangers to public safety (Gefahrenabwehr). These are not intended to assist in investigating a crime, but rather preventing one.

For this justification to apply, it needs to be shown that a danger to public safety exists at a particular location -- for instance, a demonstration in which disturbances are likely to take place, or a well-known drug market where crimes are routine.

Such places are often named specifically in your local state's local-policing law -- for instance Bavaria allows suspicionless public-safety searches where large numbers of prostitutes gather. Also, in special circumstances police can declare entire regions of a city 'danger zones', as Hamburg did in 2014 during left-wing demonstrations.

And what if the police do stop you based on general location? You are required to answer basic questions: your name, your address, your nationality, date and place of birth. The police can ask you to present an identification card (either the German national identity card or a passport), but you are not required to carry this identification around with you everywhere, so if you don't have it with you, that is not against the law.

The police may ask you further questions, such as where you are coming from and where you are going, but you are not required to answer them. A lawyer quoted in the article recommends that you do answer them in a polite but very curt manner, since this is likely to de-escalate the situation.

Note that this applies only when the police stop you without any concrete suspicion you have committed a crime. If they do have such a suspicion, they may be entitled to ask more questions.

The police are also permitted to engage in questioning of random people without individualized suspicion of crime at airports and train stations and trains. The purpose of these stops is usually to try to find illegal immigrants. A German court has found that stopping someone based solely on their appearance or skin color is unconstitutional according to the German Basic Law. (The lawyer in me says they will almost certainly find other ways to justify the search, though.)


84% of People Killed by US Police This Year Were Armed

Blog_police_killings_washington_postBoth the Washington Post and the Guardian have been trying to create national databases of the number of people killed by police in the USA, since the federal government doesn't do this. The Guardian reporters did a Reddit AMA about their series here. The graphic was the result of number crunching done by Bob Somerby and graph by Kevin Drum, who comments:

[A]bout 16 percent of the victims weren't carrying a deadly weapon at the time they were killed. That breaks down like this:

  • 26 blacks out of 132, or about 20 percent.
  • 35 whites out of 253, or about 14 percent.
  • 17 Hispanics out of 83, or about 20 percent.

These percentages are roughly similar across races, but don't account for total population. When you account for that, unarmed blacks are killed at about 4x the rate of whites and 2x the rate of Hispanics.

Blacks are over-represented given their share of the population, but it's impossible to say whether that's true given their much higher share of violent crime, as I've pointed out recently. Obviously each death of an person at the hands of police warrants concern, investigation, and perhaps changes in policy, especially if they're unarmed. But is there a massive epidemic of unarmed black people being gunned down by police in America? No. 


Yet More Context for Black Prison Population

In response to a few comments on the last post, here are a few graphics from a major recent paper on black crime rates in the USA. The full citation is: Steffensmeier et al., 'Reassessing Trends in Black Violent Crime, 1980-2008: Sorting out the 'Hispanic Effect' in Uniform Crime Reports Arrests, National Crime Victimization Survey Offender Estimates, and U.S. Prisoner Counts. Criminology, 2011; 49 (1): 197 DOI: 10.1111/j.1745-9125.2010.00222.x.

The problem with some American crime statistics is they lump in Hispanic offenders with whites. A part of the abstract reads:

We argue that prior studies showing a shrinking Black share of violent crime might be in error because of reliance on White and Black national crime statistics that are confounded with Hispanic offenders, whose numbers have been increasing rapidly and whose violence rates are higher than that of Whites but lower than that of Blacks.

The paper later explains why failing to separately count Hispanics may distort the true size of the Black-White gap in violent crime:

Because most Hispanics identify as White (approximately 93 percent) and few as lack (approximately 4 percent) and because crime-reporting programs typically record Hispanic arrests as White arrestees, failing to separate ethnicity from race—in particular, failing to separate Hispanics from non-Hispanic Whites—not only limits understanding of ethnic involvement but also hides the true disparity between Whites and Blacks. Rates that blend Hispanic origin across race inflate White rates and deflate Black rates, making 1) the disparity between the two groups seem less extreme than when Hispanic ethnicity is considered (Demuth, 2002, 2003; Hartney and Vuong, 2009; Steffensmeier and Demuth, 2000) and 2) possibly creating an illusion of Black–White convergence or a shrinking Black proportion of overall violence.

The authors then apply a corrective for this problem, and report the results:

1. A small-to-moderate increase in the Black fraction of homicide from 57 to 65 percent (vs. virtually no change [49–50 percent] in the confounded Black fraction).

2. A small increase in the Black fraction of robbery, from 67 to 70 percent (vs. a small decline in the confounded Black fraction from 60 to 57 percent).

3. A small increase for aggravated assault, from 42 to 44 percent (vs. a small decline in the confounded Black fraction, 37 to 34 percent).

4. A large decline in the Black fraction for rape, from 54 to 42 percent (vs. an even larger decline in the confounded Black fraction, 48 to 33 percent).

As with all modern survey, the authors consider both arrest and victimization rates, as well as other measures. Here are some relevant graphics from the paper:

Pages from Steffensmeier et al reassessing black criminality for hispanic effect criminology 2011So, as you can see, Blacks make up 12.6% of the US population, but according to the revised statistic in this paper, account for over 63% of all arrests for homicide. Even under the old, confounded number the percentage was 51%, still far in excess of their representation in the population. The authors then provide graphics for the multiple of how much higher black v. white crime rates are for specific crimes:

Pages from Steffensmeier et al reassessing black criminality for hispanic effect criminology 2011So these charts show how many times greater the Black crime rate for various crimes is than the white crime rate. The Black murder rate is about 11 times higher than the white murder rate, the black robbery rate is about 15 times higher. The gray lines are from victimization surveys, which as might be expected differ somewhat from arrest-rate surveys.

This study isn't the last word -- what study is? -- but it's well-respected and frequently cited. It shows no matter how you calculate it that rates of violent crime among Black Americans are significantly higher than those among White Americans. Since violent crimes such as these are the most likely to be punished with prison sentences, this information is essential to any assessment of potential racial discrimination in the US justice system. Any comment on the US justice system that leaves it these data is much, much worse than useless.

This is not to deny discrimination in the US justice system -- many studies show Black and Hispanic offenders receive 10-15% longer sentences than Whites for comparable crimes, and of course the imprisonment of non-violent drug offenders is heavily racially-loaded. But the huge disparities between Black and White violent crime rates shown above are doing a lot of the work explaining the over-representation of Blacks in US prisons. And I'm sure that the statistics of crime and incarceration rates for non-ethnic Germans in Germany probably would reveal similar trends.


American Law Professor Wants to Keep the Death Penalty

The perennial question from Europeans: Why does a 'civilized' nation like the USA hang on to a barbaric punishment like the death penalty? If I am in the mood, I reel off my 5-pronged answer (sometimes I miss a prong or add a few, depending on level of drunkenness).

One of those prongs is that in Europe, the entire law professoriate, and the entire educated class, is uniformly against capital punishment, with trivial exceptions. They act as elite opinion gatekeepers, making sure no pro-capital punishment arguments are ever aired in the mainstream media. Even Germany's leading tabloid, Bild, has always been against capital punishment.

Not so in the USA. Staying with the New York Times, here's an op-ed from William Baude, an assistant professor of law at the University of Chicago. He's commenting on a recent court decision, Glossip v. Gross, in which liberal Justices Breyer and Ginsburg advocated abolishing the death penalty in the USA: 

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

Note that Baude himself never states his own preferred position on capital punishment, except that it should be 'left to the states of the people'. A German law professor might well consider this pusillanimous, but of course you could also call it admirably restrained.


Credit Where It's Due: German Law Protects Gays in the Workplace

WorkplaceDiscrimination

A few days ago I pointed out the weak provisions of the German non-discrimination law on housing discrimination. It's only fair, though, to point out that the same law does prohibit discrimination in the workplace based on sexual orientation (g). It's still very difficult to prove a case and win damages in Germany based on the AGG, but at least the principle is there.

The US Congress has tried to enact the same protections many times over in a bill called the Employment Non-Discrimination Act, but failed. You need the House of Representatives and the Senate to pass the bill, and the President to sign it. So far, all three of those stars have not yet lined up in the right constellation, so the bill is not yet law. Many states have passed laws prohibiting discrimination against gays in the workplace, but 29 states still allow it.

I suspect a federal law might actually pass in the next 5-10 years. All you would need to do is get 10-15% of Republicans to vote for it and you would have it. (You would also need a Democratic President, of course.) I can't believe I'm saying this, but I think the change on this issue has been so dramatic in the last few years that getting 10-15% of Republicans is just possible.


Gay Marriage Now the Law in All 50 States

And on a similar note to the last post, the US Supreme Court just held (pdf) that the Constitutional guarantees of equal protection and due process of law require gay marriage to be recognized in all 50 states. Leftward-drifting Catholic Republican Justice Anthony Kennedy wrote the majority opinion for a 5-4 split court, which ends:

The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

* * *

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.


Housing Discrimination There and Here

Yesterday the U.S. Supreme Court decided Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case about the Fair Housing Act, a law passed by Congress in 1968 to combat housing discrimination:

De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races…

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968….

The question before the court was whether the FHA can be used for claims of ‘disparate impact’ – that is policies that have the result of affecting minorities and whites differently, even though there is no proof that the policymakers’ intention was to discriminate on the basis of race. The specific case here involves a federal rent-subsidy plan (Section 8) for poor families. The plaintiffs claimed that Texas agencies were contributing to residential racial segregation by steering minority Section 8 recipients to areas that were already disproportionately minority. The Plaintiffs had no proof that this was being done intentionally, so sued under disparate impact. The Supreme Court held that since most other American anti-discrimination laws can be used in this way, so can the FHA:

Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies.  The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.

So the United States already had a nationwide law prohibiting private housing discrimination in 1968, and has interpreted both it and similar laws to cover even discrimination that occurs unintentionally.

Let’s turn to Germany. German jurists will point out that the Article 3 of the German federal constitution (the Grundgesetz) prohibits racial discrimination on the part of the state, and that this provision can, in limited circumstances, be applied to transactions between private parties (the idea of so-called Drittwirkung). In practice, however, this possibility is practically irrelevant and is rarely-used. This is one reason the EU constantly prodded Germany to adopt a comprehensive, modern anti-discrimination law. Germany resisted until finally, in 2006, it adopted what’s known as the Allgemeines Gleichbehandlungsgesetz (AGG) or Equal Treatment Law. It was originally known as the Anti-Discrimination Law, but the title had to be watered down.

So what are the housing-discrimination provisions of the AGG? Here’s a short website (g) from a law firm that explains things pretty well. The main provision outlaws discrimination by private landlords on the basis of “race, ethnic ancestry, sex, religion or worldview, disability, age, or sexual identity”. Gosh, that sounds mighty progressive, you might be saying.

But actually, there are quite a lot of exceptions! For instance, if you’re renting a portion of the residence you currently occupy, you aren’t bound by the AGG at all. Seems reasonable enough. But then we get to a rather bigger loophoole: the so-called ‘small landlord’ exception. This provides that the full terms of the AGG do not apply to any landlord who puts on the market fewer than 50 residences. If you own 49 rental properties and are thus a ‘small landlord’ (!!), you are not permitted to discriminate on the basis of race or ethnic ancestry, but you can discriminate on all the other grounds as much as you want. Only when you rent more than 50 residences does the AGG apply in full force.

But wait, there’s more! Turns out there’s a loophole even here: a landlord may refuse to rent to someone in order to preserve ‘socially stable residential population structures’ and to preserve ‘balanced cultural relations’, whatever that means. Ironically, this provision of the law sells itself as an anti-discrimination measure: to prevent large concentrations of foreigners in a certain area, a landlord can refuse to rent to foreigners who wish to come there and live. Of course, the landlord then has to subsidize the rent of the foreigners he discriminated against so they can pay four times higher rent to live in the white part of town. Oh wait, no he doesn’t.

Also, if you want to sue a landlord for damages, you must do so within a 2-month limitations period, which is awfully short. Plus, without access to landlords’ documents through court-ordered discovery, you may have a hard time proving your case.

The doomsayers predicted a wave of litigation after the AGG was passed, but it never happened. Critics call the AGG a paper tiger (g) and have routinely called for it to be strengthened.

Germans take almost-sensual pleasure (g) in denouncing the ‘pervasive racism’ of American society. But the American legal system offers far more powerful tools for combating racial discrimination than Germany does.* In Germany, legal innovations that have long been the law of the land in the USA are still fiercely opposed by all but the most left-wing parties.

 

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