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Saturday, August 27, 2005

Is the Mainstream Media Biased against Cindy Sheehan?

I argue that the answer to this question is "yes," in my latest media column for the Rocky Mountain News. Even though the media fawn over Mrs. Sheehan, they are so tied to the narrative of the grieving mother that they fail to report Mrs. Sheehan's views which strongly challenge the status quo. While her far-left supporters and her right-wing opponents both give her the respect of taking her views seriously enough to report and discuss them, most of the MSM shields its audience from learning about Mrs. Sheehan's radical critique of the United States.



(Comments enabled solely to discuss media coverage of Cindy Sheehan. Trolls who want to reargue the Iraq War will be deleted.)

41 Comments

Friday, August 26, 2005

Guest Blogging at Balkinization: Starting next week, I'm going to be guestblogging over at Balkinization about the emerging academic field of computer crime law. I'm presently writing a casebook on computer crime law for West Publishers, and working on the casebook has pushed me to think a lot about the field and its prospects. While I may be delusional, or just overly optimistic, my instincts tell me that computer crime is going to develop into an upper-level elective offered at most or all law schools within a decade or so. I'll be blogging about the basic themes of the course, why it will become more important over time, and why it will help eclipse more general courses in "cyberlaw." I may also blog about some other topics if the mood strikes me. In any event, stop by if you're interested.
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Cindy Sheehan's Seeming Support for the Insurgents in Iraq:

See here, where she refers to the foreigners who are coming to Iraq to join the insurgency as "freedom fighters," a term that I take it is a term of approbation for a person and his cause. (The statement is in an interview off the bus with a bearded interviewer — I'm told it's Mark Knoller of CBS — I'm about 1/4 of the way into the file; I wish I could give a minute/second mark, but I can't seem to get it to appear for me when the file is in this format.) I haven't been following the Cindy Sheehan story much, since I'm not sure that there's a lot of there there. But this particular item really struck me in a way that her attacks on President Bush did not.

Needless to say, I sympathize a great deal with Ms. Sheehan's loss, but when she's voluntarily made herself into a political figure, it seems to me that her views are legitimately open to criticism. Thanks to WorldNetDaily for the link, but I've checked it myself.

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Who Are Those People In Crawford Anyway?

The media seems to be covering the pro and anti war protests in Crawfor (Cindy Sheehan and all that) as some sort of showdown between the pro and anti war families of soldiers (this article from the Washington Times of pro-War parents protesting the political use of their kids' names by anti-War protestors was an unusual twist on the story that I had not seen elsewhere).

Has anyone actually tried to enumerate how many of those on site, either pro or anti War, actually have anything to do with active duty military or Iraq War casualties? My impression is that the overwhelming number of those down there are primarily professional activists rather than grieving family members suggested by the media. Nonetheless, the story I see coming from most of the media focuses on family members, thereby suggesting that most of the protestors are related to service members. I don't know that it changes the story that much, but to my mind, it would change my impression of the degree to which the various protestor sides actually speak for service members in any meaningful way as opposed to just grinding political axes.

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KC Johnson on Intellectual Diversity in Universities.--

The historian KC Johnson has an interesting, link-filled article on ideological and intellectual diversity at Inside Higher Ed:

Inside Higher Ed recently reported on four University of Pittsburgh professors critiquing the latest survey suggesting ideological one-sidedness in the academy. According to the Pitt quartet, self-selection accounts for findings that the faculty of elite disproportionately tilts to the Left. “Many conservatives,” the Pitt professors mused, “may deliberately choose not to seek employment at top-tier research universities because they object, on philosophical grounds, to one of the fundamental tenets undergirding such institutions: the scientific method.”

Imagine the appropriate outrage that would have occurred had the above critique referred to feminists, minorities, or Socialists. Yet the Pitt quartet’s line of reasoning — that faculty ideological imbalance reflects the academy functioning as it should — has appeared with regularity, and has been, unintentionally, most revealing. Indeed, the very defense offered by the academic Establishment, rather than the statistical surveys themselves, has gone a long way toward proving the case of critics who say that the academy lacks sufficient intellectual diversity.

Johnson then critiques three excuses for ideological homogeneity:

1. The cultural left is, simply, more intelligent than anyone else. As SUNY-Albany’s Ron McClamrock reasoned, “Lefties are overrepresented in academia because on average, we’re just f-ing smarter.” The first recent survey came in early 2004, when the Duke Conservative Union disclosed that Duke’s humanities departments contained 142 registered Democrats and 8 registered Republicans. Philosophy Department chairman Robert Brandon considered the results unsurprising: “If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire.” . . .

2. A left-leaning tilt in the faculty is a pedagogical necessity, because professors must expose gender, racial, and class bias while promoting peace, “diversity” and “cultural competence.” According to Montclair State’s Grover Furr, “colleges and universities do not need a single additional ‘conservative’ .... What they do need, and would much benefit from, is more Marxists, radicals, leftists — all terms conventionally applied to those who fight against exploitation, racism, sexism, and capitalism. We can never have too many of these, just as we can never have too few ‘conservatives.’” . . .

3. A left-leaning professoriate is a structural necessity, because the liberal arts faculty must balance business school faculty and/or the general conservative political culture.

Related Posts (on one page):

  1. Political Diversity on Law School Faculties.--
  2. KC Johnson on Intellectual Diversity in Universities.--
112 Comments
KQED-FM (San Francisco) on the Supreme Court Confirmation Processt:

I'll be on KQED-FM (San Francisco) in a few minutes (starting at 9:05 or so Pacific time), talking about the Supreme Court confirmation process.

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"Stay the Course":

E.J. Dionne writes in the Washington Post today, "First Step? Admit There's a Problem." He writes:

History repeats itself in strange ways. Consider two statements.

"A slogan like 'stay the course' is unacceptable."

And: "Stay the course is not a policy."

The first quotation goes back to October 1982, when a Republican candidate for governor of New York named Lewis Lehrman complained about his party's national slogan during that year's midterm elections. Stay the course, insisted Lehrman, who eventually lost narrowly to Democrat Mario Cuomo, was a lousy theme in the face of a 10 percent national unemployment rate.

The second quotation is of more recent, though still Republican, coinage. Last Sunday, Sen. Chuck Hagel of Nebraska laid into the Bush administration's policy in Iraq. Hagel insisted that remaining in Iraq over an extended period -- staying the course -- "would bog us down, it would further destabilize the Middle East, it would give Iran more influence."

The problem with Dionne's argument, of course, is that with respect to 1982, history has shown Reagan was right and Lehrman was wrong on the wisdom of the "stay the course" strategy, as the short-term pain of the severe 1982 recession created the economic conditions for a long-term boom. At the very least, Dionne seems to be mixing apples and oranges--Lehrman seems to be criticizing Reagan's rhetoric (the "slogan" of "stay the course") more than the policy, whereas Hagel is criticizing the substantive policy decision.

This is not to say anything about whether "Stay the course" is the right or wrong policy in Iraq, it is simply to say that the substance of the Lehrman example seems to support exactly the opposite of the point Dionne intends.

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The Stephanopoulus Option.--

The excerpts from George Stephanopoulus's December 1, 1997 Newsweek column ("Why We Should Kill Saddam") that I've seen on the web come from Newsmax. Yet there is a lot that is interesting in the rest of the piece, besides the portions already quoted. I have been unable to find a link for those who don't have LEXIS/NEXIS (or perhaps WESTLAW).

For example, Stephanopoulus says that he raised the idea of killing Saddam Hussein in a meeting in the Clinton Oval Office, but it was immediately ruled beyond discussion:

IN THE MIDDLE OF A CRISIS WITH IRAQ DURING PRESIDENT Clinton's first term, I wondered aloud in an Oval Office meeting about the prospects of killing Saddam Hussein. Before I could finish the sentence, the then national-security adviser Tony Lake looked up to the light fixtures and said: "He was just kidding. We're not planning anything like that." Of all the words you just can't say in the modern White House, like "shred this," none is more taboo than "assassination."

For good reason. Most of our cold-war efforts to kill foreign leaders like Fidel Castro (we planned to use exploding cigars and poisoned scuba suits) bordered on the comical — and rarely worked. So in the wake of the Church Committee's revelation of CIA abuses in places like Cuba, Chile and the Congo, President Ford signed a sweeping, one-sentence executive order: "No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination."

But what's unlawful — and unpopular with the allies — is not necessarily immoral. So now that I'm not in the White House, I can say what I couldn't say then: we should seriously explore the assassination option. Even though the current crisis may be subsiding temporarily, we don't know what the future holds. A direct attack on Saddam would no doubt be politically risky — the president, concerned about his place in history, would be torn between the desire to get rid of a bully and the worry that an assassination plan gone awry would embarrass him late in his term. But the president should think about it: the gulf-war coalition is teetering and we have not eliminated Saddam's capacity to inflict mass destruction. That's why killing him may be the more sensible — and moral — course over the long run.

Stephanopoulus then goes into just-war theory and the practical problems with getting Saddam. He even expresses doubt that a massive US war with allies would be able to topple Saddam's regime:

Experts like former CIA director Robert Gates have said that assassination is a "non-option" because Saddam is so elusive and well protected. That's the strongest argument against assassination. But it loses some force when stacked against the alternatives: an indefinite extension of the sanctions that punishes the most vulnerable Iraqis without weakening Saddam or eliminating his ability to build weapons of mass destruction; or a massive military campaign that will crack the gulf-war coalition, risk allied troops and kill innocent Iraqis without ensuring Saddam's fall.

Next he notes that President Reagan used a "targeted airstrike against the homes or bunkers" of "Libya's Muammar Kaddafi."

Stephanopoulus ends:

A misreading of the law or misplaced moral squeamishness should not stop the president from talking about assassination. He should order up the options and see if it's possible. If we can kill Saddam, we should. [Quotations from LEXIS]

Related Posts (on one page):

  1. The Stephanopoulus Option.--
  2. Assassination as a Tool of Foreign Policy:
31 Comments

Thursday, August 25, 2005

You Know You're A Lawyer When you see a car with vanity license plates that read "1USCFAN", and you think to yourself, "Wow, the owner of that car must really love the United States Code!"
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[Andrew Morriss (guest-blogging), August 25, 2005 at 9:59pm] Trackbacks
Thanks:

It has been enlightening in many ways to spend time here. Thanks to Eugene for the invitation and to all for the useful comments and the many emails off-line.

The new semester starts next week and it's time for me to get to work. I've also begun a new blog with Tom Bogart (York College), P.J. Hill (Wheaton College & PERC), Fr. Charles Nalls (Christ the King (in Washington, D.C.)) & Fr. Michael Butler (St. Innocent Orthodox Church, Olmstead Falls, OH) on the intersection of religion and economics: St. Maximos' Hut. (If you want the derivation of the name you have to check out the blog.) You can visit us here. We're new, so come back periodically and see what develops. It is an interesting crew and we already have our first disagreement.

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Assassination as a Tool of Foreign Policy:

Pat Robertson's recent suggestion — now recanted — that the U.S. government assassinate Venezuelan president Hugo Chavez led me to think a bit more about this subject. Let me pass along some tentative thoughts (especially tentative as to point 2 below), and see what the rest of you think.

1. Morality: Government-sponsored assassination is essentially an act of war; it's an attempt to affect another nation's government policy by military force. Nonetheless, if an invasion is morally justified, it seems to me that an assassination is if anything more so. It would be an odd morality that allowed the killing of enemy soldiers, many of whom are personally morally innocent, but forbade the killing of their commander-in-chief — or even ostensibly civilian leaders of the enemy government — who may be morally culpable indeed.

Idi Amin was ultimately driven from power by a Tanzanian invasion (which was prompted by a Ugandan invasion of Tanzania, but would have been eminently justified even without that). If the Tanzanians or others could have stopped Amin's murders by assassinating Amin, and without killing any Ugandan soldiers, that would have been even better.

The same goes for many other tyrants, though naturally not for every leader you dislike: Just as invasions are unjustified in most certain circumstances, so are assassinations (especially of democratic leaders, where the people's self-government as well as the leader's right to live are implicated). My point is simply that assassinations are no morally worse than other acts of war, and likely morally better than many such acts.

(I don't know enough about Hugo Chavez to express a view on which category he falls into; I mentioned Chavez only because Robertson's remarks prompted me to post this, not because I have any views about him. I also set aside for purposes of this post questions about whether and when such assassinations violate either domestic law or international law; the "morality" inquiry is about whether they're inherently wrong, not just about whether they violate the legal rules, since presumably we can change any executive orders of statutes, or withdraw from any treaties, that we think are too constraining. For a couple of past posts about one corner of the legal question, see here and here.)

[UPDATE: For whatever it's worth, George Stephanopoulos seems to take this view, too, in a Dec. 1, 1997 Newsweek article urging the assassination of Saddam Hussein.]

2. Practicality: The chief problems with assassination, it seems to me, are practical ones. First, assassination will only do so much — it will remove one person, but it may see him replaced with someone who is equally bad, or it may lead to a bloody fight for succession, which may yield more deaths of innocents than the tyrant was responsible for. Especially if the assassination is done for humanitarian reasons (which may sound odd, but as the Amin hypothetical shows, would be eminently plausible), a humanitarian would want to make sure that the act will really do more good than harm. In many (though not all) situations, an invasion is a much surer way of accomplishing your goals than an assassination would be.

Second, democracies have much more to lose from an increase in the number of foreign policy assassinations than do tyrannies. As best I can tell, foreign policy assassinations are quite rare, even among countries that are quite hostile to each other, to the point of war or near war.

This condition — perhaps a tacit understanding — is very good for democracies. Civilian leaders in democratic governments, including ones who have a great deal of power, are generally soft targets except at the very highest levels (e.g., President or Vice President): They are often seen in public, and they generally live as the people do. That's good; we want our political leaders to meet with ordinary citizens, and to live like ordinary citizens. In autocratic governments, power is generally much more centralized, and the few who have power can much more easily live in bunkers, and always be under heavy guard.

If a spate of foreign policy assassinations leads more countries (and nongovernmental groups) to adopt this tactic, tyrants could protect themselves to a considerable extent, with little effect on their ability to govern. What's more, they probably won't be much deterred by the risk of assassination, unless we can make the risk very high: They knew the job was very dangerous when they took it, and they are likely the sorts of people who can live quite well with this sort of risk.

On the other hand, politicians in democratic countries could protect themselves only through steps that would substantially change, and change for the worse, the way our democracies function. Also, quite a few democratic politicians might conclude that the job isn't worth the risk. Naturally, there will always be some who are willing to take the risk; but I'm not sure that we want that sort of self-selection effect, in which political positions are increasingly taken only by people who want them so much that they're willing to ignore mortal danger to get them.

Of course, this all presupposes that our attempts at assassinating others will lead others to assasinate us; and this may be a mistaken presupposition, because I suspect that most of our enemies and potential enemies aren't exactly animated by a sense of fair play here. Yet the fact is that, despite the softness of many of our targets (again, not the President or Vice President but many other important leaders), our enemies — even in past shooting wars — have not generally gone after them. Likely this was often because they feared retaliation on our part. But I suspect that there was a bit of a tacit deal involved there, and if I'm right, then some violations of the deal could lead the whole deal to break down. (And, yes, I know that there have been violations of the deal already; but sometimes such deals survive a few breaches, but fall apart once a tipping point is reached.)

This having been said, there will of course be exceptions. Hitler was an unusual enough figure even within Germany, and the worth of killing him was so great, that assassinating him would have been very much worthwhile (though also very hard, as many would-be German assassins learned). When we're fighting a broader war, the killing of high military and quasi-military officers may be necessary, and might not materially increase the risk of retaliation beyond what it would be in any case. Still, it seems to me that if you look at the big picture, the seemingly cheap step of assassination ("just take him out") may generally be much more expensive than it appears.

In any case, these are just some tentative thoughts — I'm most surely no expert on the question — and I'd love to hear what others think.

UPDATE: I use the term "assassinate" because I don't want to sugarcoat what would be happening — the deliberate killing of a particular person. But if you think that "assassinate" inherently carries a connotation of improper deliberate killing, just mentally replace the use of "assassinate" in my post with "targeted killing."

Dictionary definitions of the term in fact reflect this ambiguity in the term. Some define it using the term "murder," which generally means kill immorally or illegally; others define it using the term "kill," which doesn't carry that meaning. I generally lean towards the latter category: A deliberate attempt to kill Hitler would in my view be commonly called "assassination," though it would of course be morally praiseworthy. And I think that this is a common enough use of the term that saying "targeted killing" instead would make it sound like I was pussyfooting around the subject. But, again, if you think that assassination definitionally can't be permissible, just use the term targeted killing instead.

FURTHER UPDATE: Professor Bainbridge has a Catholic perspective on the issue.

Related Posts (on one page):

  1. The Stephanopoulus Option.--
  2. Assassination as a Tool of Foreign Policy:
47 Comments
Tipping at Buffet Restaurants:

I've long wondered about this question. Say that you normally tip 15% for normal good service in a full-service restaurant. How much should you tip in a restaurant where pretty much everyone eats from a buffet? The waiter takes your drink order, gets you the drink, and gets you the check; the waiter or the busboys clean up after you; the waiter or a busboy takes care of small condiments requests (e.g., to get a bottle of low-sodium soy sauce or stuff like that). Should it still be 15%? 10%, because the waiters do much less than full-service waiters do, and end up serving many more tables? 5%?

More to the point, what's the social norm? There's nothing magical about a 15% tip, or an 18% or 20% tip if some people prefer it — the important thing is that it's a social norm, and becomes part of the deal: You go to a normal restaurant, and you're essentially (morally, if not legally, though there's been one odd legal incident that I know of related to this) promising to pay the cost of the meal plus 15%, unless the waiter's poor service gives you good reason to undertip. What are you promising when you go to a buffet?

I'd love to hear people's views, especially on the descriptive what's-the-social-norm question.

UPDATE: If you're concerned about the waiter's income, keep in mind that because the waiter has to spend less time per table, he will probably be serving more tables. A waiter who is tipped 15% per order at a buffet service restaurant will thus end up making more for the same amount of total work (work per table x number of tables) than a waiter who is tipped 15% per order at a full service restaurant. (The busboys still work pretty much as hard per table, though, and I assume that the tip is split with the busboys, so you can't just proportionately reduce the tip by the reduction in the waiter's amount of work.)

On the other hand, I don't know to what extent this is taken into account in the base salary that the waiter is paid by the restaurant; that, I take it, turns on what the restaurant and the waiters expect the tips to be. And I also have no personal experience confirming my supposition that waiters at buffet restaurants serve more tables than at full-service restaurants, though I think my speculation on this is well-founded. So none of this proves that the rate should be below 15%, but it does suggest that the "buffet restaurant waiters need to live just like full-service restaurant waiters, so they should get the same percentage tip" argument is likely mistaken or at least incomplete.

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Guess Who Calls Outcomes in Kelo and Raich "Unwise"?: In a recent speech, a prominent federal judge called the outcomes in last Term's Supreme Court decisions in Kelo v. New London and Gonzales v. Raich "unwise."

  On the question of Kelo v. New London, the eminent domain case, this prominent federal judge explained that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." As for Gonzales v. Raich, the medical marijuana case, the judge explained that "I agree with the policy choice made by the millions of California voters."

  The name of this prominent federal judge? John Paul Stevens, the author of the majority decisions in Kelo and Raich, who explained that while he opposed the results in both cases as a matter of policy, he felt compelled to reach them as a matter of law.

  UPDATE: Mike Rappaport responds over at The Right Coast: "Give me a break."
38 Comments

Wednesday, August 24, 2005

Law Teaching: Brian Leiter has a number very good posts up about getting into law teaching over at Leiter's Law School Reports.
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Blue States Only Please:

Some aspiring law professors include geographic limits on where they are willing to teach on their AALS application forms. For understandable reasons (e.g. family, health), some are more geographically mobile than others. Then, according to Glenn Reynolds, there's the candidate who will only consider jobs in "Blue States, Florida and Virginia" and will not consider "Other red states." Ironically, this means he or she is more likely to end up in a red part of a blue state (e.g. Orange County), than in the blue part of a red state (e.g. Austin, Cleveland). [It also does not say much about his or her open-mindedness and academic temperament, but that's another blog post entirely.]

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An Odd Complaint:

The AP reports (thanks to The New Editor for the pointer):

Dr. Terry Bennett says he tells obese patients their weight is bad for their health and their love lives, but the lecture drove one patient to complain to the state.

"I told a fat woman she was obese," Bennett says. "I tried to get her attention. I told her, 'You need to get on a program, join a group of like-minded people and peel off the weight that is going to kill you.'" . . .

[The woman's] complaint, filed about a year ago, was initially investigated by a panel of the New Hampshire Board of Medicine, which recommended that Bennett be sent a confidential letter of concern. The board rejected the suggestion in December and asked the attorney general's office to investigate. . . .

"Physicians have to be professional with patients and remember everyone is an individual. You should not be inflammatory or degrading to anyone," said board member Kevin Costin. . . .

It's hard from the article to figure out exactly what the woman is complaining about; it may well be that Dr. Bennett said something harsher than what he's quoted as saying. (The complaints and other materials are apparently confidential, though if anyone has any more data on this, I'd love to hear it.) Still, if the account is correct, it's pretty troubling. And, more broadly, do we really need government regulation to keep doctors from being mean to their patients? (For a sense of the First Amendment issues raised by such regulations, by the way, see this post.)

UPDATE: Another article reports that Bennett "has 'an obesity lecture for women' that is a stark litany designed to get the attention of obese female patients. He said he tells obese women they most likely will outlive an obese spouse and will have a difficult time establishing a new relationship because studies show most males are completely negative to obese women." I can see how that would get some people upset, though I also see why the doctor might figure that this is the one way to get to people who haven't listened to his other advice. And it still seems to me that this isn't something the state medical board needs to be regulating.

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Those Who Sincerely Wonder Whether My Posts Are Motivated By Anti-Gay Animus

might want to read my earlier posts trying to debunk the myth of the hyper-promiscuous median gay male (also here, here, here, and here), criticizing "Don't Ask, Don't Tell", arguing against the "nongenital sex is unnatural" argument, and arguing that even religious people who take Biblical injunctions seriously, but who believe in religious tolerance, should treat tolerance of gays and lesbians as equivalent to tolerance of other religions. I will be the first to say that I don't endorse all the things that many gay rights activists endorse; for instance, while I support same-sex marriage, I think it should be recognized by statute, not by judicial fiat. But if you treat everyone who doesn't completely agree with you, and sometimes even agrees with your adversaries, as an anti-gay bigot, you might want to ask how sound, fair, and effective an attitude like that is.

96 Comments
Sssh! We're Not Supposed To Be Talking About

the relative risk of male homosexual sexual conduct: So some commenters to this post seem to think. To recap: My earlier post noted in passing that male homosexual sex is much more dangerous for the men than is heterosexual sex. To my surprise, three people e-mailed me with fairly detailed messages that either denied or minimized these risks. I decided to respond, because this is actually an important point, on which people need to know the facts.

1. But wait! A couple of the commenters decided that this must show some "ulterior motives" and some presumably sinister "agenda," because of course my statement was "so obvious" that there was no legitimate reason for mentioning it. I get three e-mails (which I noted in my original post) denying the accuracy of my claim. None seem to be from cranks — one is from a Ph.D. who's also a founding father of the gay rights movement, and the two others are from people who seem to be quite articulate, thoughtful, and generally well-informed. You'd think there'd be two pretty obvious motives for my responding: (A) I want to rebut what seem to be important and dangerous misconceptions. (B) I want to respond to people's criticism of my assertion. Apparently not.

OK, though, I confess: I am developing an ulterior motive in writing about this stuff. The more people tell me not to write about things that strike me as important and perfectly legitimate to write about, the more I'm tempted to write about them. If people are trying to cow others into not discussing this information, then it's all the more important that we remain uncowed.

2. Several commenters also argued that posting this information was somehow improper because it might be misused (for instance, because it would "play right into the hands of the anti-gay right").

Well, I'm an academic, and my sense of the academic ethos — or at least the best of that ethos — is that we try to publish the facts, even when the facts may be used by bad people in bad arguments as well as by good people in good arguments. (Yes, there are obvious exceptions, perhaps such as publishing information about how anyone can brew up smallpox in his kitchen; but the very extremeness of this example should remind us how narrow these exceptions are.)

Lots of information related to race, sex, sexual orientation, and more can be and has been misused by bad people. Yet reasoned inquiry and debate can't proceed without it. You can't think seriously about criminal justice and crime control without recognizing the racial disparities in crime. You can't think seriously about the causes of disproportionate representation of men and women in certain fields without at least considering whether men and women might on average have important biological differences that might explain some of this disproportion. You can't think seriously about what public health strategies are needed to fight AIDS, about whether various existing strategies are being conducted usefully and honestly, about whether it's proper for sperm banks or blood banks to screen out gay donors, about why AIDS infection patterns are so different in Africa and in the U.S. — or for that matter, about how careful one should be in one's own sex life, or whether (if one is a bisexual) one should experiment with homosexual sexual behavior — without knowing the data about the demographics of HIV.

If people misuse the data I posted, I'm sorry, in the sense that I wish they didn't do that. But I'm not the least bit sorry I posted it. These are tremendously important facts; literally life-or-death facts for some. I'm going to keep posting information like this, because I believe that keeping quiet about it does far more harm than good. And the more I see people trying to stop others from distributing this information, the more important it seems to me that it be distributed.

40 Comments
Solove v. Kerr on the Fourth Amendment and New Technologies: In a forthcoming symposium issue of the Fordham Law Review, my colleague Dan Solove and I debate the relative merits of constitutional rules versus statutory rules in the area of online privacy. The basic question is this: Which branch of government is likely to generate better rules regulating police investigations when technology is rapidly changing? The legislature or the judiciary?

  Last year, I argued in an article called "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution" that Congress has the institutional advantage over courts, and would likely generate better and more balanced rules. Now Dan has responded, arguing that I am all wrong, and I have replied to his response (or did I respond to his reply? I can never remember such things).

  Anyway, you can read Dan's paper here: "Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference". You can read my short response to Solove (13 pages) here: "Congress, the Courts, and New Technologies: A Response to Professor Solove".
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Is Justice Breyer channeling John Hart Ely?--

The Wall Street Journal has a teaser story on Justice Stephen Breyer's new 161-page book to be released in a few weeks: "Active Liberty: Interpreting Our Democratic Constitution." I didn't know that Breyer was a disciple of John Hart Ely (and he may not be), but the interpretive theory described in the WSJ's account of Breyer's book sounds a lot like the main argument in Ely's Democracy & Distrust (1980).

Here is the WSJ on Breyer's book:

By contrast [with Justice Scalia's book on interpretation], Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values — such as the marketplace of free ideas — by limiting the ability of monied factions to overwhelm other points of view. . . .

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government. . . .

In his book, Justice Breyer contends that originalists can be just as subjective as other judges, reaching the outcome they favor by emphasizing some historical elements and ignoring others. Such a literal reading, he writes, can be "inconsistent with the most fundamental original intention of the Framers themselves."

On amazon.com, the book description (which is usually put out by the publisher) includes this: "Justice Breyer states that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts."

Here is a description of Ely's argument taken from an online review of Ely's 1980 Democracy & Distrust:

Ely's theory of judicial review focuses on allowing everyone equal input in the representative part of the government and free participation in the political process. If the government is a fair representation of the beliefs of the nation, the Supreme Court does not need to make value judgments with one exception, which is the other half of the theory. The Court must not allow the majority to take advantage of the minority. Ely admits that both of these require certain value judgments by the Court; however, the values of fair representation and protecting minorities were invoked by the Founding Fathers. For example, James Madison wrote in The Fe[de]ralist no. 51, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

I have ordered my copy of Breyer's new book. I can't wait to see how Breyer's democracy-enhancing interpretative strategy differs from Ely's democracy-enhancing interpretative strategy. I hope that in his book Breyer details how his theory follows or differs from Ely's, and that he deals with the criticisms that have been made of Ely's thesis.

Also, to the extent that Ely actually applies his democracy-enhancing approach in a very different way from Breyer's, I wonder about the amount of judicial discretion that might be inherent in democracy-enhancing approaches (would this be more or less than other interpretive approaches?). For example, Ely was hostile to extensive administrative rulemaking because bureaucrats were not elected, and Ely (though favoring abortion) was highly critical of the original decision in Roe v. Wade, but not of its progeny because of stare decisis (from Wikipedia), :

Ely wrote several influential law review articles, including a devastating critique of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Review, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be."

Ely's most notable work, however, was his 1980 book Democracy and Distrust, which ranks as one of the most influential works about Constitutional law ever written. In it, he argues against "interpretivism," of which Hugo Black was an exponent, and "originalism," advanced by Justices such as Antonin Scalia, by contending that "strict construction" fails to do justice to the open texture of many of the Constitution's provisions; at the same time, though, he maintains that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic. Instead, Ely argued that the Supreme Court should interpret the Constitution so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political process on procedural grounds . . . .

Interestingly, Ely was born the same year as Breyer and they were in the same cohort as Harvard professors from 1973 to 1980. Ely's book came out 10 months before Breyer left Harvard to join the First Circuit in December 1980, so it would have been by far the leading book on judicial interpretation when Breyer first became a judge. Ely died of cancer in 2003.

26 Comments

Tuesday, August 23, 2005

Dangerousness of Male Homosexual Activity:

Some readers challenged my claim that there is "disproportionate and grave health danger from male homosexual activity" to men, compared to the danger from male heterosexual activity. I think this danger is tragic, and I very much hope that medical advances will lead to the danger's decreasing. All decent people should agree that it's tragic. (The bunk that we hear from some quarters about AIDS being God's punishment for homosexuality would suggest, as some wit put it, that lesbians must be God's chosen people, since their rates are apparently very low.) But it seems to me quite clear that this danger is very much there.

Reader Brian King, for instance, writes:

The fact is that male homosexuals having a one-night stand are more then twice as likely to practice safe sex then heterosexuals having a one-night stand. Given this, from a health point of view, you should think that it's preferable for a bisexual man to experiment with homosexuality, then to remain heterosexual. If the bisexual man in 2005 has sex with a male, that male has a 66% chance to demand a condom, while a female only has around a 33% chance to demand a condom. Ergo, pairing the bisexual with the male homosexual results in statistically safer sex then pairing the bisexual with the female.

Your reasoning is flawed because current STD rates are a comment on the safe sex practices of men 20 years ago. Gay men, in response to this crisis, have changed their behavior over the years. Now, gay men are the most informed people in the world about safe sex. . . .

[Quoting a study:] "From 1993 alone, nine different studies reported that two thirds of gay men were being primarily safe in locales as disparate as North Carolina, Britan, Australia, Pittsburgh, and San Fransisco. Yet, the national aids behavioral surveys surveyed heterosexual men and found: 'Among respondents with multiple partners, only 28% of men and 32% of women always use them (condoms) with secondary partners...in general, almost half the men and women with multiple partners never use condoms.' Another study compared gay and straight men and found gay condom use "twice as high.'" . . .

If gays are engaging in safe sex, that's wonderful. Nonetheless, even if one focuses on new (post-1993, and even more recent) HIV/AIDS cases among U.S. males, the majority are among gay men (if one uses means of acquisition as an admittedly rough proxy for sexual orientation). Gay men are only roughly 4% of the male population. This means that gay men are still disproportionately much more likely than straight men to get infected, by a factor of 20 or more. Even if gay men are using condoms more often, they may be engaging in riskier sexual behavior (receptive anal sex as opposed to insertive genital sex), and (probably more importantly) they're having sex with people who are much more likely to be infected. The CDC, for instance, reports that of new AIDS diagnoses among males in 2003 (which I suspect are mostly people infected after 1993), nearly 18,000 of the about 32,000 involved "male-to-male sexual contact" as the primary risk factor, and nearly 2,000 more involved "male-to-male sexual contact and injection drug use." Only a little over 5000 involved heterosexual contact as the primary risk factor. The Texas data for new HIV diagnoses (see PDF p. 12) among males in 2003 is similar: 1700 of the 3500 involved male/male sex, plus 150 more involved male/male sexual contact plus drugs as risk factors. 270 were from heterosexual contact, though another 1100 were other/risk not reported, so maybe there were more heterosexual acquisitions there.

Another reader suggests that it's a mistake to focus solely on HIV, and it's better to look at estimated lifespans — if gay male lifespans are on average the same as straight male lifespans (presumably controlling for various demographic factors), then that means that homosexual activity as actually practiced is on average less dangerous than heterosexual activity. Dr. Franklin Kameny (a leading gay rights activist of long standing) writes that "Homosexual sexual conduct is not dangerous, and its alleged danger is being MUCH over-stated and exaggerated here. As an 80-year-old gay man, sexually active for some 50 years and less so for well over a decade before that, and in good health for my age, I can certify to such lack of danger. Most of the founding fathers of the gay movement died in their 70s, 80s, and 90s."

A lifespan comparison study would be a great study to see, but I don't think it's ever been done right, and it would be very hard to do right. In the meantime, let's look again at the Texas data for (see PDF p. 12). The data suggests that there were about 50,000 HIV and AIDS cases among male homosexuals in Texas since 1980 (again, if you use method of infection as an admittedly rough proxy for the infected person's sexual orientation). The population of Texas is roughly 20 million; that leaves 10 million males; and if roughly 4% of Texans are homosexual or bisexual (working off the national percentage, that's about 400,000.

Naturally, we'd need to add to that 400,000 in some measure because of transience — there were people moving in and out of the state, and dying and being born since 1980, and since such people are counted in the AIDS and HIV cases, they should be counted in the population data as well (and unfortunately I don't know of any data that can tell us precisely how many people have lived in Texas in 1980, as opposed to those who live there now). But even if we double that, we still have a huge mortality / HIV infection rate — not at African levels, thankfully, but over 5% of all Texan homosexuals and bisexuals — and one that's likely underestimated, because presumably many people who have HIV haven't yet been tested and therefore aren't included in the HIV statistics.

So male homosexual activity does seem much more dangerous, on average, than male heterosexual activity. As I've said before, this danger is tragic. But it seems to me a grave mistake to deny this danger.

155 Comments
Debate Club on Assisted Suicide Case: The Legal Affairs Debate Club this week is considering the upcoming Supreme Court case of Gonzales v. Oregon, a.k.a. the assisted suicide case. The participants are Jonathan Adler and Wesley J. Smith. (Hat tip: Michael Cernovich, who offers his own take, too.)
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Turkmenistan:

The UPI reports:

Turkmenistan President Saparmurat [for life] Niyazov has deemed recorded music a negative influence on society and banned it from public events, TV and weddings.

Niyazov has already banned opera and ballet from the former Soviet state, saying they were unnecessary, the BBC reported. . . .

He has also banned car radios, closed all hospitals except those in the capital and renamed calendar months after his relatives, the BBC said.

This account suggests that the calendar renaming plan is a bit more complex than that, but it still prompts a puzzle -- though the answer should be so obvious that it's really more a reminder than a puzzle: What other (and likely much more influential) month renaming plan does this echo?

Also, another question: Does the music ban cover Living Colour's Cult of Personality?

Thanks to Daniel Schmutter for the pointer.

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One More Final Post on Sexual Conversion: I appreciate Eugene's reply, but I wonder if we're just left with a question of definitions. In the past, when I have heard the claim that "gays and lesbians are trying to convert others to homosexuality," I did not understand it to mean the narrow claim that Eugene is making. "Conversion" was depicted as something sinister and unusual, generally associated with the homophobic stereotype of gays as sexual predators. Those who have responded by calling such claims a "myth" were not taking the position directly implicated by the point Eugene makes; rather, I understood them to be arguing that the homophobic stereotypes were a "myth." If I'm right, Eugene's position is that the homophobic stereotypes are in fact a myth, but that it is possible to come up with an alternative meaning of the claim that so-defined might not be a myth. Whether that is true, it seems like a question of definitions more than substantive disagreement.
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I Don't Know Why It's Funny, But It Is:

BarcePundit points to an amusing video.

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Criminal Libel and Web Sites:

News.com reports:

Oklahoma prosecutors will soon weigh whether to take up criminal charges against a former mayoral candidate accused of libeling a longtime state politician on his Web forum.

In a police report filed Aug. 16, former state senator and convicted felon Gene Stipe charged that Harold King had published false information about Stipe and his family on his Web forum, the McAlester Watercooler, said Capt. Darrell Miller of the McAlester, Okla., police force. The nature of the information was not disclosed. . . .

Many people have argued that criminal libel laws are unconstitutional, but the Supreme Court has never so held. The government would have to prove, beyond a reasonable doubt, that the statement was false, and that the defendant knew it was false, or at least knew there was a substantial chance it was false and didn't adequately investigate that possibility. (This at least would be the rule for statements on matters of public concern.) The Court's most recent decision about this, Garrison v. Louisiana (1964), basically required this sort of proof, but did not go further and suggest that all criminal libel laws are per se impermissible. The article goes on to say that "[A]ccording to a 2003 study by the Media Law Resource Center[, a] total of eight suits -- or about 10 percent of all criminal libel cases [presumably over the last few decades] -- have involved Web postings by nonprofessional media. In half of those Web cases, including the three most recent ones, the charges were dropped. One of those recent cases led to a Utah criminal libel law being declared unconstitutional."

10 Comments
Conference on Consumer Credit Disclosures:

This summer the Payment Cards Center of the Philadelphia Federal Reserve organized an excellent program on "Federal Consumer Protection Regulation: Disclosures and Beyond." A summary of the program by Mark Furletti is available here. Yours truly was the keynote speaker for the panel on "Alternatives to Disclosure." Tom Durkin of the Federal Reserve Board headlined the morning panel. Given the long-simmering rumors of possible amendments to Reg Z, this was a timely and useful program on regulation of credit card use by consumers and disclosures and other regulatory approaches.

Here's the summary of recommendations from the program:

In general, these recomendations involve (1) making specific changes to current credit card disclosures, (2) improving the processes by which disclosures are implemented, (3) increasing reliance on technology for the purposes of making disclosures more useful and educating consumers, and (4) changing the "mix" of regulatory intervention in the industry. The paper concludes that while many participants do not expect significant improvements to existing federal consumer protections, there is evidence that standardized credit disclosures, when coupled with other regulatory tools, serve a segment of credit-card-using consuemrs well and could incrementally benefits from modification.

For those who are not familiar with it, the Payment Cards Center at the Philadelphia Federal Reserve is doing outstanding work in the area of payment cards research and this conference is a great example of their excellent research. Their materials are available here. While I'm at it, another great site for payment card research for those working in this area is Payingwithplastic.org.

22 Comments
Orpheus:

For reasons I can't explain, a couple of days ago I remembered the last stanza of this poem, so I decided I'd pass it along:

Orpheus

I was a fine musician
When I was back in Greece;
I soothed the very rocks, when we
Retrieved the Golden Fleece.
Folks liked my cool persona,
I played my lute with flair --
My voice rang out with quirky drawl;
I pleased the people, one and all,
With what the critics liked to call
My sad and wistful air.

I met the fair Eurydice
When she was seventeen;
And when I led her out of Hell,
Charmed even Proserpine.
I played, that Ixion's fiery wheel
Stood still, for once, that night.
I strained to hear the muted sound
Of footfalls on the quiet ground --
And she was gone when I turned round,
As I returned to light.

One night, I heard that sound again
For which I often yearn --
The tread of silent footsteps,
And I didn't dare to turn.
I learned that bitter lesson once
Upon the road from Hell.
I felt a blow upon my head;
I tumbled, hurt but not quite dead --
An altogether different tread
Than that I'd known so well.

The man who stole my wallet then
Was scared and ran away;
If only he had used his knife,
I'd be with her today.
We'd stroll around forever
In the sweet infernal spring....
In Hades, where the palms are rife,
We'd afterlive as man and wife --
But I have been condemned to life.
The Fates won't cut my string.

I've known that Hell was beautiful
Since we were first apart;
I can't imagine brimstone
In the dwelling of my heart.
With Sisyphus and Tantalus
I'd drink a glass of beer;
With fingers that would never tire,
Accompanied by Pluto's choir,
I'd play sweet music on my lyre
When she and I are near.

The gods today are strange to me;
My gods are out of reach.
I built a shrine to Jupiter
Last week on Venice Beach.
The flame grew dim and flickered out.
Could Hades be no more?
Apollo sings no more to me.
If they are gone, then so is she.
The Styx flows to a vacant sea
By a deserted shore.

The author is my brother Sasha.

6 Comments
Gays and Lesbians and Golf:

I was glad to read Orin's post below, and had a few thoughts about it.

A. I don't think that the golf analogy quite captures things. To make it closer, you'd have to posit the following:

  1. Some fraction of people doesn't just "get a great deal of pleasure from golf," but feels that playing golf is very important to their happiness and personal fulfillment (in the way that people feel that love, romance, or even an erotic relationship to the right person is very important to their happiness and personal fulfillment), and that not playing golf would cause them deep misery.

  2. Those people encounter lots of social pressure not to play golf, though many of them overcome that pressure, start playing golf, and feel their lives are far better as a result.

  3. Those people suspect that there are others like them who are still being victimized by this social pressure, and who are likely to be miserable (if they're mostly homosexual in orientation) -- or at least not as likely to find the right person for them (if they're roughly evenly bisexual in orientation -- as a result.

The closest sports analogy, I suspect, is to women who found sports to be a very important part of their lives, who found sports despite having been pushed away from it because they were girls, and who suspect that other girls who could be very happy playing sports are likewise being pushed away from it. Even this doesn't capture the importance of love and sex to people's lives, and the degree to which society discourages homosexuality; and the one other difference is that many people think all girls should be interested in sports, at least in some measure, while I suspect that most gays and lesbians recognize that only a small fraction of the population is likely to be at all interested in same-sex relationships. Still, it seems like a closer analogy. And in this situation, many feminist groups do try to influence society so that girls who might be interested in sports are encouraged to experiment with it.

2. But more broadly, I do agree with one aspect of Orin's post: The phenomenon that I was describing was not supposed to be shocking or unusual. It's just human nature, which is why I think it's such a plausible hypothesis. What strikes me as being implausible is the claim -- against which I was arguing -- that it's somehow a "myth" that gay and lesbians (not every such person, but many) are interested in converting some people to gay or lesbian behavior. As I pointed out, it's highly unlikely that they're trying to convert heterosexuals generally. But, as I argued, it does seem likely that they're trying to convert the orientationally bisexual but behaviorally heterosexual into at least exploring their homosexual sides: "[T]he [gay rights] movement . . . necessarily, and I suspect intentionally, also helps people who are attracted to both sexes be more willing to explore the homosexual facets of that attraction."

That is exactly the claim I was making in my original post. It is not a claim of unusual human behavior; rather, it is a claim of quite normal human behavior. And whether or not it's "a somewhat odd question to consider" if one is coming to it from a blank slate, I'm considering this question simply because it's a question that others have raised.

34 Comments
One Last Thought on Conversion and Sexual Orientation: If I understand Eugene's response, his argument boils down to the belief that people will try to convert others to do whatever they themselves really enjoy doing. For example, if I get a great deal of pleasure from golf, then I will encourage others to try it. If I meet someone who mentions that he is thinking of picking up golf, then I will try to "convert" him to be a golfer. (It's human psychology, the argument would run: if golfing makes me happy, then why wouldn't I attempt to get others to try it?)

  If my understanding of Eugene's argument is right, then whether gays and lesbians are trying to convert others seems like a somewhat odd question to consider. If the claim is true, then at most it's just a recognition that gays and lesbians enjoy same-sex conduct and are human beings. They're trying to convert people just like golfers are trying to convert people, bloggers are trying to convert people, and Harry Potter fans are trying to convert people. This may be what Eugene had in mind, but it seems like a signifcantly narrower claim than what I understood from his initial post.
18 Comments

Monday, August 22, 2005

The Debate over using the Koran in the courtroom.--

There has been a minor debate over using the Koran for oaths in North Carolina. Here is FOXNews account (tip to LGF):

Traditionally, witnesses taking the stand in court are sworn in by placing their hand on the Bible (search).

But when Muslims in Guilford County, N.C., tried to donate copies of the Koran (search) for courtroom use, judges turned them down.

Chief District Court Judge Joseph Turner (search) says taking an oath on the Koran is not allowed by North Carolina state law, which specifies that witnesses shall place their hands on the “holy scriptures,” which he interprets as the Christian Bible. “We’ve been doing it that way for 200 years,” he said. “Until the legislature changes that law, I believe I have to do what I’ve been told to do in the statutes.”

But the Council on American-Islamic Relations (CAIR) and the American Civil Liberties Union are challenging the Guilford County Courts.

“This was the first time that we had a judge … going on record and stating unilaterally what is a holy scripture and what is not — what we believe to be a violation of the establishment clause,” said Arsalan Iftikhar of CAIR.

I don’t know why this should be a problem, since this issue was settled law in England before the American Revolution. In 1744 in Omichund v Barker, the Chancery Court held that a Hindu could testify and be sworn (while touching a Brahmin) but not an atheist, since for the oath of a Hindu “still the substance is the same, which is that God in all of them is called upon as a witness to the truth of what we say.”

In US v. Ward, 989 F.2d 1015 (9th Cir. 1992), Ninth Circuit Judge Fletcher wrote:

In Omichund v. Barker, 1 Atk. 22, 45 (1744), Lord Chief Judge Willes wrote, "It would be absurd for [a non-Christian witness] to swear according to the Christian oath, which he does not believe; and therefore, out of necessity, he must be allowed to swear according to his own notion of an oath." See also Atcheson v. Everitt, 1 Cowp. 382, 389 (1776) (Mansfield, L.C.J.) ("[A]s the purpose of [the oath] is to bind his conscience, every man of every religion should be bound by that form which he himself thinks will bind his own conscience most").

Certainly, one way or the other, a higher court is highly likely to allow a Muslim to swear on the Koran (as Erwin Chemerinsky is quoted as asserting).

It is interesting to consider that some sects (such as Quakers) do not allow swearing, and that many courts do not use a Bible but merely require that witnesses affirm the substance of the oath.

My daughter (the 18 year old Christian) points out to her atheist father that Matthew's account of the Sermon on the Mount (unlike Luke's) forbids the swearing of oaths:

Matthew 6: 22 (New American Bible): "Again you have heard that it was said to your ancestors, 'Do not take a false oath, but make good to the Lord all that you vow.'

But I say to you, do not swear at all;

23 not by heaven, for it is God's throne;

nor by the earth, for it is his footstool; nor by Jerusalem, for it is the city of the great King.

Do not swear by your head, for you cannot make a single hair white or black.

24 Let your 'Yes' mean 'Yes,' and your 'No' mean 'No.' Anything more is from the evil one.

Why Wouldn't Gays and Lesbians Want the Bisexually Oriented to Experiment with Homosexual Behavior?

I appreciate Orin's response to my post, and I agree that my post is based in some measure on speculation, as claims about people's motives often are. Yet it strikes me as sound speculation.

Recall that one premise of my post (for which I have considerable data) is that there are many people who have bisexual orientation, in the sense that they are attracted at least in some measure to both sexes. Of these, some may engage in purely heterosexual sexual behavior, others in bisexual sexual behavior, and others in purely homosexual sexual behavior. Social pressure, as well as internalized feelings of shame or guilt about homosexuality, may push many of the bisexually oriented into the purely heterosexual sexual behavior category.

Why wouldn't gays and lesbians who think that homosexual behavior is just fine want these people to experiment with homosexual behavior? After all, once some of these people overcome social and personal inhibitions, they may find that they're much happier in same-sex relationships than in opposite-sex relationships. Others may find that they're happier engaging in a mix of such relationships.

If the bisexually oriented person hasn't tried his homosexual side, I would think that many gays and lesbians would think that this is a shame: There must be something that keeps the person from looking into something that might give him or her great happiness. Working to convert a bisexually oriented person from a purely heterosexual behavior pattern that completely ignores the person's heterosexual side to one that is more open to the person's homosexual side -- even if only as an experiment to see how strong that side is -- would, it seems to me, be thought of as a good deed. (It would be seen as an especially unselfish good deed if the work involved destigmatizing homosexuality and making the bisexually oriented feel better about their homosexual side, rather than just having sex with the person directly.)

This is what I was trying to get at by posing the five questions in my original post. My sense of human psychology, based on which I'm speculating about people's intentions, would be that many gays and lesbians do think such conversions (or persuasion or influencing or whatever one may want to call it) are good; and I think the five questions help explain why that might be so.

Orin suggests otherwise: "Most people who encounter social disapproval for their conduct are probably more concerned about ending that stigma than about getting other people to be more like them." But I'm not sure that it quite works that way. Many people who encounter social disapproval for their conduct become especially aware of such disapproval, and especially empathetic of those who are in the same boat. I think to myself (to borrow an example I gave in my earlier post): What if I were a heterosexual in a hypothetical future overwhelming homosexual society, and I had overcome my original shame and fear at experimenting with heterosexuality? I'd think that I'd then want to make sure that other people like me -- including those who are bisexually oriented, but may end up happier in a heterosexual relationship than in a homosexual relationship -- felt comfortable experimenting, too. I'd even urge people who fit that profile to experiment (again, not necessarily with me), just so they can avoid the possible unhappiness of being stuck in relationships that aren't satisfying for them as they could be.

So it seems to me contrary to what I know of human psychology for gays and lesbians not to want the orientationally bisexual / behaviorally purely heterosexual people to convert to a more bisexual or homosexual behavior pattern. It's speculation, but it seems to me likely correct.

46 Comments
Response to Eugene's Post on Gay "Conversion": I have a number of difficulties with Eugene's post on whether gays and lesbians are trying to "convert" people to homosexual behavior, but let me press on just one: If the question is what a person or group of persons is subjectively trying to do, then I don't see the relevance of what the person or group should want to do, might want to do, or what the likely effect of the group's action might be. If I understand Eugene's post correctly, his claim is the former but the arguments are about the latter.

   Specifically, if the claim is that "gays and lesbians are trying to convert others to homosexual behavior," then we need some kind of evidence of individual people or groups subjectively trying to bring about a sexual "conversion." It may be true that destigmatizing homosexuality has the effect of making someone on the fence more likely to engage in homosexual conduct. But even if that is right, I don't see how it is relevant to the question of whether gays and lesbians are "trying" to do something, much less specifically trying to "convert" someone to homosexuality .

  If I read his post correctly, Eugene tries to work around this problem by speculating about motive. If there is a clear link between stigma and conduct, he reasons, then it's likely that some of the activists who claim to be focused on the former are really trying to influence the latter. But this is mere speculation of intent, not proof of it. Plus, it seems rather far-fetched to me. Most people who encounter social disapproval for their conduct are probably more concerned about ending that stigma than about getting other people to be more like them.

  Anyway, that's my sense of things. As always, civil and respectful comments only.
10 Comments
Same-Sex Marriage and Slippery Slopes:

I've just posted this article, which is forthcoming in the Hofstra Law Review. Here's the Introduction; for more details, and footnotes, see the article itself:

Recognizing same-sex marriage, some say, will make it more likely that the law will one day recognize polygamy. This is a classic slippery slope argument: Even if legal action A today (recognizing same-sex marriage) wouldn’t be that bad, or would even be moderately good, it should be opposed because it will increase the likelihood of a much worse legal action B in the future (recognizing polygamy). And the argument isn’t a logical one, but a psychological one: Though A and B are distinguishable, the argument goes, in practice it’s likely that various actors in our legal system — legislators, voters, judges — will eventually end up not distinguishing them.

Recognizing same-sex marriage, others say, will make it more likely that other “gay rights” laws will be passed and upheld, including laws that substantially burden religious objectors, institutions that are trying to further value systems that oppose homosexuality, or antigay speakers:

  • Employers (including churches, religious schools, and groups like the Boy Scouts) will have to hire homosexuals, even if they believe that the homosexuality is inconsistent with the employee’s position as a role model.

  • Private landlords will be required to rent to same-sex couples, even if the landlords have religious objections to providing space that would likely be used for sinful activity.

  • Roommates might be unable to advertise their preference for a same-sex heterosexual roommate.

  • Fear of “hostile work environment” liability under antidiscrimination law may pressure employers or educators into suppressing antigay views by employees or students.

  • Groups like the Boy Scouts may be required to have openly gay scoutmasters, or at least face exclusion from government benefits if they insist on limiting their leadership posts to heterosexuals.

This too is a slippery slope argument: Legal action A might not be that bad, for instance because giving same-sex couples marriage licenses doesn’t hurt anyone else. But taking action A will increase the chance of legal action B, which would be worse — from the perspective of some observers — because it would interfere with the free choice of people or groups who oppose homosexuality. (Naturally, some people might welcome the slippery slope, since they may favor B; but the argument’s target audience is those who oppose B.)

How can we evaluate the plausibility of these arguments? In this Essay, I’ll try to briefly discuss this question — and in the process, illustrate more broadly how slippery slope arguments can be made and analyzed.

Throughout, I’ll focus on examining the mechanisms behind the “slippery slope” metaphor. Metaphors are falsehoods. If they were literally true, they wouldn’t be metaphors.

Of course, metaphors are falsehoods that aim at exposing a deeper truth. They can be legitimate, and rhetorically powerful. Some of the most effective legal arguments use metaphor. Yet, as Justice Holmes cautions us, we must “think things not words” — “or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” So what are the facts for which the metaphor “slippery slope” stands? To determine how likely it is that we will “slip” from one legal decision to another, we need to understand how the “slippery slope” operates, in fact and not just metaphorically.

What follows will not discuss (except briefly in the Conclusion) whether recognizing same-sex marriage is good or bad on its own terms; whether recognizing same-sex marriage is so morally or practically imperative that slippery slope arguments are irrelevant; or whether recognizing polygamous marriages or accepting broader antidiscrimination laws is itself good. These are all important parts of analyzing whether to support recognition of same-sex marriage, but I leave them to the many other commentators who are happy to deal with them.

Rather, I will focus solely on the empirical claims behind the slippery slope argument: that recognizing same-sex marriage will indeed help bring about those consequences. This is just a subset of the broader policy question, but I think an important subset, at least for those who like (or don’t deeply dislike) the first step A but oppose the possible future step B. And I think that exploring this subset can help illuminate slippery slope phenomena more broadly.

36 Comments
S.F. Supervisors Reject WWII-Era Battleship Museum:

I just noticed this item, though it happened last month; according to an S.F. Chronicle article (see here and here for Web-accessible AP stories),

The San Francisco Board of Supervisors on Tuesday rejected efforts to bring the battleship Iowa to the waterfront as a museum, saying the peace-loving city is no place for a warship.

The supervisors voted 8-3 to rebuff a plan by supporters . . . to berth the World War II-era ship at San Francisco's port and turn it into a tourist attraction. . . .

[Some supervisors] cited several reasons why the ship doesn't belong in San Francisco: the widespread opposition to the war in Iraq, the unequal treatment of gay and lesbian enlisted men and women, and the city's reputation as the home of the peace movement.

"It's important that we have for our children, for those who come here, a vision that is uniquely San Francisco in terms of what, for decades, has been a city represented again and again in the foremost positions of peace movements," said Supervisor Jake McGoldrick, who opposed the plan. . . .

[The ship] first set sail in 1943, and its long career included tours during World War II and the Korean War. . . .

The debate turned Tuesday's meeting into a political free-for-all, with supervisors standing up to express their dislike of the Bush administration's policies and the war in Iraq.

Supervisors Tom Ammiano and Bevan Dufty, both openly gay, said they would not support bringing the ship to San Francisco because of how the military treats gay people.

Supervisor Ross Mirkarimi said permanently berthing the Iowa on San Francisco's historic waterfront is not something city residents would want.

"If I was going to commit any kind of money in recognition of war, then it should be toward peace, given what our war is in Iraq right now," he said. . . .

Just appalling. This ship helped protect America and the Free World from the Japanese and the Nazis. It helped protect the South Koreans from being overrun by the North. Yet somehow that's all outweighed in the Supervisors' minds by the Iraq war and of the military's policy on homosexuality. What a shocking lack of perspective and lack of respect for the institution that has helped (and continues to help) to protect San Franciscans -- and, I should mention, gay and lesbian San Franciscans, who would have suffered far worse than exclusion from the military in the hands of our WWII-era enemies, or of our modern enemies -- alongside all other Americans. (For more on a similar lack of perspective on the part of law schools that refuse to let the military interview on campus, see here.)

Naturally, I should stress that the city had no moral duty to allow the berthing of the ship here; there may be all sorts of good practical reasons not to do this, even if, as the museum's supporters say, "they would cover the cost of moving the ship and remodeling the piers where it would be located . . . as well as any other annual fees the city would charge to berth the ship." But at least some supervisors' reason seemed to be essentially their lack of respect for the symbols of the U.S. military -- and what an awful reason that is.

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Why do they hate France?

The August 6-19 issue of the weekly France-Amerique edition of Le Figaro (one of the two top daily newspapers in France) contains a fascinating article on hostility to France. Historian Jan Eichler, in "La tentation de la francophobie" (The francophobe temptation), examines the sources of the strong anti-French sentiment in central and eastern Europe, with special reference to the Czech Republic. He notes that when asked for an explanation, Czechs cite the "trahison de Munich" (treason/betrayal of Munich).

Eichler explains, however, that the Munich citation has two distinct meanings. For some Czechs, it is simply a literal memory of a terrible act by the French government, which led to tremendous suffering for Czechoslovakia.

Other Czechs, he elaborates, use "Munich" as a shorthand for what they see to be France's failure to support the robustly pro-freedom American policies in Europe. For the latter group, the list of grievances includes some events which were well-known at one time, which have been forgotten by almost all Americans, but which are vividly remembered by many Czechs--such as France's withdrawl from the NATO military command during the DeGaulle presidency.

These pro-American Czechs resent French criticism of the "american way of life." They repeat the arguments of "la fameuse 'Reagan victory school'", which they believe won the Cold War (la guerre froid) and which the Czechs believe can also win the terror war. As the subhead of Eichler's commentary states, "Les nouveaux pays de l'UE, seduits par les theses neoconservatrices, optent pour l'atlantisme." (The new nations of the EU, seduced by the neo-conservative theses, opt for Atlanticism.)(Accent marks are omitted from the French headline.)

UPDATE: A few commenters are wondering about how many important daily newspapers there are in France. The French are blessed with many good daily newspapers, although, sadly, they do not publish on Sunday. However, Le Monde and Le Figaro are the two most important--especially for non-Communist readers. The monthly Le Monde Diplomatique probably has the biggest influence outside of France, with Fig's various international editions coming in second. The daily editions of Le Monde and Le Fig certainly have a huge lead over any other French newspaper for newsstand distribution in England, Germany, and Switzerland, based on my own observations.

P.S. Personally, I adore France's culture and its many historic contributions to Western civilization. Although I was appalled by France's pro-Saddam policies, it is important to remember that France has often played a very constructive role in the War on Terror--including sharing intelligence with the U.S., and helping to force Syria out of Lebanon. But I also understand why Czechs and other peoples who suffered under the Warsaw Pact for so many decades would be especially vigilant about wanting to side with nation that took the lead in their own liberation.

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Cat litter:

A paper I coauthored with the Mercatus Center's Susan Dudley on the history of the regulation of silica dust and the problems regulators face in defining exactly what it is they are regulating is available on SSRN. Silica is a big component in cat litter (hence the header) and some feared that the hazards of silicosis would result in skull & crossbones warnings on bags of cat litter. By posting about it here, I hope to drive up my downloads, and hence enhance Case's academic reputation through a higher SSRN ranking. Thus I am actually posting on my assigned topics.

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State law schools as transaction cost minimizers:

I thought that the most interesting theory proposed in response to my question about the rationale for state ownership of law schools was that it minimized transactions costs to bundle the set of goods produced by law schools rather than buying them ala carte. (There was also an interesting "promote local legal culture" theory proposed, but this one appeals to my economist's heart more.)

While this is an appealing idea in many respects and very much in the spirit of Coase, there are some offsetting costs to consider. Buying a law school (which some states literally did in the transition from the era of proprietary education to the modern era of university affiliated law schools - I believe both Cleveland State's Cleveland Marshall College of Law and IU Indianapolis were originally proprietary schools, among others) rather than buying various services introduces a principal-agent problem between the law school and the state.

The bundle of goods state law schools produce ought to include scholarship on state legal issues. Sometimes that can be framed within larger issues (i.e. a paper on whether a cap on punitive damages is a good thing is useful in deciding if Ohio should have a cap on punitive damages) but other times it is likely fairly state-specific. For example, Ohio has a particularly complex limitation on property tax revenues that slows the rise of property taxes but also makes for some very confusing tax elections, frequent tax elections, and undoubtedly biases the tax structure in some odd ways. An article on the punitive damage cap issue could wind up in any law review; an article on Ohio property tax law would be lucky to make it in one of the Ohio schools (and we have 9) law reviews. So, faculty are more likely to write the former than the latter, even at state law schools. Faculty are more likely to be rewarded for writing an article that places well, which pushes against the property tax article.

Perhaps the state would do such a bad job selecting topics for commissioned research that it wouldn't matter. And, of course, states can still commission research even if they also own law schools.

I'd be interested in readers' thoughts on how state-ownership might reduce some transactions costs and increase others.

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Red State, Blue Students:

Paul Caron has an interesting post on a poll he did of incoming U. Cincinnati students using the eInstruction handhelds. Paul is a consistently interesting scholar and innovative teacher. (And, in the link to my guest-blogging, organized the rankings conference that produced the paper that got me here. So, not too far off topic.)

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Another Reason to Be Skeptical of Poll Results:

Here's a question from a Pew Research Center, Pew Forum on Religion and Public Life survey, Oct. 15-19, 2003:

Society should not put any restrictions on sex between consenting adults in the privacy of their own home. Do you completely agree, somewhat agree, somewhat disagree, or completely disagree with this statement?

RESULTS:
Completely agree - 61%
Somewhat agree - 19
Somewhat disagree - 5
Completely disagree - 8
Mixed opinion (vol.) - 1 Don't know/Refused - 5

So can we confidently say that 61% really do completely agree with the statement -- to the point of supporting the legalization of prostitution? I'm pretty sure the answer is no: I doubt that most respondents would have realized that prostitution is covered (though it clearly is).

OK, can we at least that 61% is the rough fraction of people who completely agree with the statement as to those matters about which the statement is most often made -- homosexual activity, nongenital sex, and the like? Not really: The number may well be higher, but some people who believe that might have said "somewhat agree" or even "somewhat disagree" precisely because they realized that prostitution is covered. What that number is, we have no idea.

I do think we can guess that probably at least about 60% of the public oppose bans on homosexual activity and nongenital sex; I'd think that when most respondents heard the "consenting adult" language, they'd probably have thought of those things. But we can't even be confident of that, it seems to me.

Surveytaking is necessarily imprecise, partly because people don't accurately report what they really believe (or how they'll really vote). But questions like this, it seems to me, just exacerbate the likely inaccuracy.

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A3G Takes Questions: Over at Crescat Sententia, Will Baude has the first half of an online interview with "Article Three Groupie" of Underneath Their Robes.
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Recognition of Same-Sex Marriage as Supposedly Diminishing Regard for Marriage:

Some people argue that recognizing same-sex marriages will keep some heterosexuals from marrying. The theory, as best I can tell, is that the recognition will "diminish regard for marriage" (George Dent, The Defense of Traditional Marriage, 15 J. L. & Pol. 581, 623 (1999)), partly because treating traditional marriages "no better than a gay partnership" would "to most people . . . constitute not only the denial of a deserved accolade but a calculated insult" (id. at 617).

Now I'm pretty skeptical about this: I doubt that many people are put off from straight marriage by the fact that some percentage of people marries for bad reasons (e.g., marry someone rich and old whom you don't love and wait for them to die so you can inherit), and I don't see how the fact that some 2% or so of marriages would end up being same-sex would affect the remaining 98%.

Here, though, is a way we might try to test this (I realize that the analogy here is imperfect, but I think it can still be helpful): As I understand it, Catholics believe remarriage after divorce is wrong, and is in fact a form of bigamy. My sense is that while Catholics believe that religious marriage is a sacrament, they don't believe that the married parties are also religiously obligated to enter into a civil marriage. If they oppose civil marriage as an institution, they wouldn't be sinning by entering into the religious marriage but not the civil marriage.

Are there American Catholics who are so "insulted" by the fact that the civil law treats their marriage no better than a bigamous marriage of a divorcee, and who have so lost regard for the institution of civil marriage, that they refuse to engage in civil marriages? Or do they take the view that while some other people engage in bad or even immoral marriages, this wouldn't make their own marriage (both the religious marriage and the civil marriage) any worse? If the latter, then wouldn't we likewise assume that the behavior of opposite-sex couples won't be affected by the existence of same-sex marriages of which they disapprove?

Please do correct me if I'm misunderstanding Catholic doctrine here (which I well might be).

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Gays and Lesbians Trying to Convert Others to Homosexual Behavior:

I've seen lots of assertions that it's a "myth" that gays and lesbians try to recruit others into homosexuality. (See, among many other examples, here and here.) Yet it seems to me that this assertion of "myth" is likely itself something of a myth, or at least quite incomplete.

I rather doubt that many gays and lesbians harbor hopes that many heterosexuals will "become homosexual." That just isn't likely to happen, and I doubt that gays or lesbians make plans around it. Moreover, it may well be that you can't really change a person's sexual orientation, in the sense of whom the person is attracted to. (I'm not sure whether that's right, but I'm willing to assume it for purposes of this post.)

But sexual orientation is not the same as sexual behavior. In particular, people who are at least in some measure attracted to both sexes may be seen as having a bisexual sexual orientation, but they may choose to behave heterosexually, homosexually, or bisexually. And in fact, it appears that the majority of men — and nearly all women — who are at least in some measure attracted to the same sex are also at least in some measure attracted to the opposite sex:

Sexual attractionAmong menAmong women
Only opposite gender93.8%95.6%
Mostly opposite gender2.6%2.7%
Both genders0.6%0.8%
Mostly same gender0.7%0.6%
Only same gender2.4%0.3%
(Source: Laumann et al., The Social Organization of Sexuality 311 (1994), which I also noted — with the suitable warnings about the limits of even well-conducted random studies of small sexual minorities — here.) Here is the data from Laumann et al. about reported sexual practices (not just attraction) of people who have had some same-sex partners in particular time frames (numbers rounded):
Time frame in which the person has had some same-sex partnersFraction of male respondents (the ones who had some same-sex partners) who had partners of both sexesFraction of female respondents (the ones who had some same-sex partners) who had partners of both sexes
In the last year25%25%
In the last 5 years50%60%
Since age 1880%90%
(As best I can tell, the time frame in the numerator is the same as in the denominator — the 50% number, for instance, means that 50% of the men who have had a same-sex partner in the last 5 years have also had an opposite-sex partner in the last 5 years.) I did read a recent news report of a study that claimed that ostensibly bisexual men actually had the same physical arousal patterns, when shown potentially stimulating pictures of men and women, as either homosexuals or heterosexuals: "[I]n men there's no hint that true bisexual arousal exists." But as others pointed out in that news story, "the technique used in the study to measure genital arousal is too crude to capture the richness — erotic sensations, affection, admiration — that constitutes sexual attraction," especially given the consistent self-reports of men who claim to be bisexual. And the story reports that true bisexual physical arousal in women has indeed been documented.

The gay rights movement has aimed — in my view, on balance quite laudably — to make homosexuals feel more comfortable with their homosexuality, and to help people who are attracted to the same sex be more willing to act on that attraction. But it follows that the movement also necessarily, and I suspect intentionally, also helps people who are attracted to both sexes be more willing to explore the homosexual facet of that attraction. It thus increases the likelihood that the bisexually-attracted people who would otherwise engage in purely heterosexual relationships (because of fear of social stigma, or because of their own disapproval of their homosexual attraction) will instead be also willing to engage in some homosexual relationships.

If I'm right, the movement thus is trying to convert those who have a bisexual orientation but act purely heterosexually — or would act purely heterosexually, if we're talking about people who haven't started having sex yet — into also experimenting with homosexuality. This doesn't mean that most gays and lesbians are trying to do this to particular people up close and personal; there are obvious costs to that, such as the risk of rebuff if you get the other person's interest wrong, or the risk of quick abandonment if the other person is interested in experimenting but then concludes the experiment has been a failure from his or her point of view, so many gays and lesbians might well prefer partners who have a more definite homosexual preference. But there are many actions that might go into this sort of "conversion" (if only a conversion into a mix of homosexual/heterosexual behavior, and a conversion that in many cases will end up proving to be only temporary): Providing oneself for the actual sexual behavior is one, but so is public action to destigmatize homosexual behavior, or to provide positive homosexual or bisexual role models, something that for perfectly understandable reasons many gays and lesbians are indeed trying to do.

To further illustrate this, ask yourself: How would most gays or lesbians who believe that homosexuality is perfectly proper respond to these questions?

(1) A person who has had only heterosexual experiences is feeling some homosexual attraction. Should he or she experiment with homosexual relations to see if he or she finds them more rewarding, or at least a valuable facet of his or her future sex life (assuming this wouldn't constitute infidelity, that it's done with the proper protection against disease, that it's done with the right person, and so on)?

(2) Should gay rights groups try to change society so that such experimentation is less stigmatized?

(3) Should gay and lesbian friends of this person urge the person (of course, sensitively and without browbeating) to experiment, and to see if — given that he or she feels at least some same-sex attraction — he or she might indeed find same-sex relationships more rewarding?

(4) If this were a friend of yours to whom you were attracted, you knew that he or she felt at least some same-sex attraction, and you weren't worried about the emotional risk to yourself, would you consider having you be the person with whom the friend experiments? (Again, assume that neither of you is otherwise committed, the approach would be suitably sensitive, and so on; naturally, even sexual behavior that's perfectly proper in the abstract can be made wrong if done under the wrong circumstances.)

(5) Do you think that older teenagers (say, 16 and above) should have out-of-the-closet gay, lesbian, and bisexual role models so that those of the teenagers who feel some same-sex attraction would feel more open to experimenting to see if same-sex relationships will be more rewarding to them than opposite-sex relationships? (I'm not asking about sexual experimentation with the role models, but rather about the role models' presence making the teenagers more comfortable with their same-sex attractions.)

I suspect that most gays and lesbians who think homosexuality is proper would say "yes" to most or all of these questions. I know that if I were a heterosexual in some hypothetical future overwhelmingly homosexual society, and I were asked similar questions about "converting" people who were open to heterosexuality but had so far had only engaged in homosexual behavior into practicing bisexuals or heterosexuals, I'd say "yes." If you think some behavior can be proper and, for some group, very rewarding, you would naturally want people who aren't sure whether they fall into that group to try it out.

And if that's true, then gays and lesbians (though not necessarily each gay and lesbian) are trying to get others who have been behaviorally heterosexual, but who might be open to homosexual behavior, to try homosexual behavior. They almost certainly don't see all heterosexuals as likely converts. But they probably do think (with good reason) that some fraction — a substantial fraction compared to the number of pure homosexuals — might well be willing to change behaviors, especially if they are made to feel right and welcome in doing so. And, yes, that would include teenagers as well as fully grown adults. If most people think the age of sexual consent should be around 16 (the legal norm in the country), then I doubt that most gays and lesbians would think that it's wrong to encourage 16-year-old boys and girls who have some same-sex attraction to experiment with that attraction.

Now, as I've suggested, I don't think there's anything inherently immoral about such attempt to convert people away from purely heterosexual behavior, if they are interested in homosexual behavior, and of course if the "conversion" is done without force, imposition on those who are genuinely too young to decide, and so on. If it weren't for the disproportionate and grave health danger from male homosexual activity, I'd think such encouragement to explore which relationships give people the most happiness would be positively quite good. (Yes, I realize that the danger can be reduced by not engaging in anal sex, always using a condom, not having sex with a partner unless he's been tested and had not had sex for some months before the test, and so on. But most people are not nearly this cautious, and the reality thus remains that, given the vastly disproportionate prevalence of HIV among gays in America today, the greater risk from anal sex, a practice that for understandable reasons many male homosexuals do not want to forego, and the notorious difficulty with getting people to actually practice safe practices — whether aimed at preventing disease or conception — the fact remains that experimenting with male homosexuality is dangerous activity.) Given this danger, I'd prefer that men with bisexual orientations who can be happy with women not experiment with men; but that's a judgment about medical risk, not about the inherent morality of "conversion" attempts, and in any event it doesn't apply to lesbianism.

Nonetheless, if I'm right, then I don't think we should deny that the gay and lesbian movement does aim in part at "converting" people who have a wholly or partly bisexual orientation from a purely heterosexual behavior pattern to one that involves at least some (initially experimental) homosexual behavior.

UPDATE: A bunch of commenters think I shouldn't use the word "convert," for various reasons. The reason I'm using it is that I'm responding to an alleged "myth": People claim that it's a "myth" that gays and lesbians try to convert or recruit others, and I am arguing that this "myth" claim is "likely itself something of a myth, or at least quite incomplete." If you prefer to describe this not as "converting," but as something else (e.g., "influencing the person to change his practices"), that's fine. But if my analysis above is right, then one still shouldn't deride claims of conversion as "myth," even if one thinks that the word is slightly imprecise or has a bad connotation.

But in any event, it seems to me that the term is fine. It is hardly inherently pejorative: Changes in religious beliefs and practices are called conversions, and if people view them negatively, they do so because they disapprove of the new belief or practice, not because they disapprove of "conversion."

And it's also quite sensibly applied to changes in behavior (especially behavior that many people find important to their felt identity) and not just changes in some supposed inherent nature. If you persuade someone to become a vegetarian, you can be said to have converted him to vegetarianism. He's still biologically an omnivore, but his practices are now different. Likewise, changing someone from (a) being an orientational bisexual who engages solely in heterosexual relationships to (b) someone who is an orientational bisexual who engages solely in homosexual relationships, or to (c) someone who is bisexual both by orientation and practice strikes me as quite rightly called a "conversion."

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If You're Interested in Corporate Law, be sure to check out the first installment of the Conglomerate Junior Scholars Workshop.
Gorelick Should Have Gone:

The todo about Able Danger and what the FBI should or should not have known about Mohammad Atta has increased scrutiny of the 9/11 Commission report and renewed the debate over the "wall" between law enforcement and anti-terrorism efforts (see, e.g., here and here). Time will tell whether there is anything to the Able Danger story -- and whether or not the "wall" inhibited information shargin -- but it is clearer than ever that Jamie Gorelick should not have served on the 9/11 Commission. Whether or not she deserves credit or blame for the "wall" and other Clinton Administration policies, her presence on the commission undermines its credibility, and provides undo fodder for political partisans and conspiracy theorists. This is a point I made last year (see here and here). As I wrote last May:

the issue is not whether Ms. Gorelick made reasonable decisions as a Justice Department official. I have no interest in seeing the 9/11 Commission's work devolve into partisan finger-pointing about which administration is most at fault. Many people, in multiple administrations, made decisions that -- it can be seen in hindsight -- were in error. These people should be testifying before the 9/11 Commission, not participating on it. For this reason, and this reason along, Ms. Gorelick has no place on the Commission. Unless the Commissioners recognize this fact, the Commission will not fulfill its mandate of producing a neutral and credible report on the policy failures that led to 9/11.

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Patriot Act:

In a gesture intended to be reminiscent of the Patent and Trademark Office's special rule about patent applications for perpetual motion machines — no patent granted without a working model — I propose a new rule about comments that reference the Patriot Act: If you allege that some government misconduct was done pursuant to the Patriot Act, you must cite and quote the relevant section (for instance, from this online version) to prove that the Patriot Act can indeed be involved.

Yes, I know that perpetual motion machines are impossible, and abuse of the Patriot Act is vastly overstated (see, e.g., this post, among many others, for examples) but in fact possible. Nonetheless, annoying times call for annoying measures. (For those curious about the straw that broke the camel's back, see some of the comments to this post.)

Remember, "Patriot Act," like "fascism" and "unconstitutional," is not Latin for "government action I don't like."

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Sunday, August 21, 2005

The Intelligence Wall and the Culture of the Wall.--

At Captain's Quarters, a member of the intelligence community writes in describing his experience with the wall that was observed before 9/11 against sharing intelligence about terrorists:

From 1984 until 2002, I worked as a contractor doing mainly threat assessment and projection for most of the USG intelligence services but primarily CIA, DIA, Air Force and ONI. I assert that the main point about the Wall is that it was not a memo or a directive — it was a culture. There were many walls, throughout the Intelligence Community, as well as between the Intelligence Community and Law Enforcement. Most of these were of long standing and existed for good reasons — security and protecting civil liberties. But under Clinton, all the walls got taller and new ones were added. The reason for all this was that the Clinton Adminstration viewed the Intelligence Community much more as a source of potential embarrassment than as a trusted advisor. . . .

Not believing there were critical national security issuses for which the support the Intelligence Community was vital; acutely concerned about the potential for scandals and political embarassements . . . , and having a strong personal distaste for the whole business, Clinton set out to reduce the risk that the Intelligence Community could do him harm by making it as difficult as possible for the Intelligence Community to do anything. He did this thru his appointments, seeing to it that political animals and risk-adverse adminstrators got key postions; by changing the rules by which intelligence could be collected — for example, banning using people with crimnal associations or "human rights abusers" as HUMINT sources, which meant that no one in the Intelligence Community could talk to a disaffected terrorist; a huge blow that badly hurt our ability to keep tabs on terrorist organiszation after 1998 — and by building walls.

To give you a concrete example of how far the "Wall" culture went, I offer the following personal anecdote:

In Oct 1999, my group, of which I was lead analyst, was given a task to evaluate threats from about 6-8 different countries. State-sponsored terrorism was one of the threats. In our proposal, we argued that evaluating state-sponsored terrorism without considering the actual terrorists organizations themselves made little sense. . . .

All such projects have a kickoff meeting where we and the customers go over the analysis plan in detail, discussing data issues, security issues, potential problems and limitations, and the scope of the conclusions we expect to be able to produce. Attending our kickoff meeting were us, the DIA team for whom we were doing the analysis, and a CIA rep acting a liaison. Everything went great until the topic of terrorists came up.

At once, the DIA guys explained that maybe they’d been too optimistic about the "wall" issue. Our tasking included suggestions for threat mitigation, and since that was clearly counter-terrorism in this case, that was right out. We can’t give any counter-terrorist advice, they flatly said. OK, we said, what about assessment?

That depends, they replied.

So we starting giving them examples of things we thought we might be able to say. No, we can’t say that, they would say, it still sounds too much like advice.

Well, what about this? we’d ask. Maybe not, they’d say, such-&-such organization vets those kind of conclusions; they’re the experts and we can’t step on their charter.

This went on for more than an hour and finally, somewhat exasperated, we asked them exactly what we could say; what type of conclusions we were allowed to draw. At this point, the DIA guys and CIA rep got together and basically gave us a dump on who in the government was doing what with respect to terrorism and what the rules of cooperation [or lack of it] were. At one point, they started talking about an organization we recognized as being in DIA. Wait a minute! we said, those guys are DIA! If they are working that, then we can say this and this and this!

"Yeah," the head DIA guy said, a bit sheepishly, "they are DIA, but they’re a different part of DIA and we can’t talk to them." . . .

We blinked a few times, and then all consideration of terrorism was dropped from the task. . . .

That is what Clinton and Gorelik's Wall culture did. It just didn't just prevent more effective cooperation and data sharing; it prevented the whole question of terrorism being addressed in a coherent fashion at all. No one was working the problem effectively, but I bet they all thought — just like we were told – that someone else was. That’s the "I thought you brought the matches" school of intelligence analysis, and that was the end effect of Clinton's intelligence policy: it turned the whole process of intelligence into one big game of "Who brought the matches?"

And on 9/11 we found out who: Al Qaeda brought the matches.

Related Posts (on one page):

  1. Gorelick Should Have Gone:
  2. The Intelligence Wall and the Culture of the Wall.--
  3. Did Lawyers Hinder Bin Laden Capture?--
Sarin Gas, Treason, and Plot::

I have nothing to add substantively to Jim's post, but the alternative title was just begging to be blogged (the referent is here). "Castor Beans, Treason, and Plot" would have been better, but that would be ricin. And yes, I hope that this event and the July 7 attacks won't be as bad for British Muslims as the Gunpowder Plot and related unpleasantness were for British Catholics.

More on the AIPAC Indictments: I was rather disappointed by the Ha'Aretz piece on the AIPAC indictments that David mentions below. I realize it's an opinion piece, but it seems very light on facts and very heavy on suspicion.

  As best I can tell, the only real factual claim in the piece is that "strange questions" were being asked during the investigation. The piece doesn't say who was asking the alleged strange questions, however, or two whom they were addressed. In addition, the two specific questions mentioned don't sound to me like something an FBI agent would ask (especially the second question). David suggests that the asking of such questions wouldn't surprise him because some anti-Semitic views are popular in "many 'intellectual' circles," but I don't think such circles are generally thought to include the Federal Bureau of Investigation.

  Finally, I know one of the prosecutors in the case, and in my experience he is a consummate professional. Kevin DiGregory (listed first in this press release) was a Deputy Assistant Attorney General in the Criminal Division at the Justice Department when I was a Trial Attorney there; in layman's terms, he was my boss's boss. I worked with Kevin on a bunch of cases, and found him to be a man of tremendous integrity.

  Of course, none of this rules out some kind of funny business somewhere along the line. But until we see real evidence of that, I'm not inclined to believe that the indictments are somehow improper.
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The Bobby Riggs--Margaret Court Mothers' Day Massacre in 1973.--

In today'a NY Times, reporter Selena Roberts has an excerpt from her book on the Billie Jean King--Bobby Riggs Battle of the Sexes tennis match. The excerpt tells the story of the earlier match between Riggs and Margaret Court, which Riggs won handily. It is a fascinating look at an earlier era:

The sprite-sized Riggs, a player who survived against giants by exploiting their human weaknesses, plotted his way to the Wimbledon men's singles title in 1939 at 21. The instant attention he gained was delightfully dizzying, a feeling he never thought he'd recapture. Then came the spring of '73.

To be surrounded like a bonfire again, to be seated at the best tables in the house, it all made for an intoxicating range of possibilities. But he couldn't realize any of them unless he made the match a reality. So Bobby did what came naturally for him - he put money on it. Armed with a $5,000 carrot, he sent out telegrams challenging his wish list of opponents: Billie Jean King, Chris Evert and Margaret Smith Court.

Billie was the one he wanted, the one who really mattered. "The sex leader of the revolutionary pack," he tagged her. That was typical Riggs, a lob over the net that was meant to tease, to frustrate. To goad. Billie just let it skip out of bounds. "There was nothing in it for women's tennis," Billie says. "I kept saying, 'No, Bobby, no.' "

Undervalued in King's Eyes

Margaret couldn't resist the bait. At first, hardly anyone knew that she had accepted Bobby's invitation. Then she and Billie shared a ride in an elevator at the Virginia Slims in Detroit.

"I'm going to play Bobby Riggs," Margaret mentioned as they inched down the shaft.

"What?"

"I'm getting $10,000."

"That's not enough," Billie countered, "and, secondly, this is not about tennis."

"What do you mean? I'm about to get $10,000."

"Margaret, I'm just going to ask one thing of you: You have to win this match." Margaret nodded politely. Too politely.

"No, I mean it. You have to win this match. You have no idea how important this is."

Billie understood what Margaret couldn't grasp: With critics starting to assail Title IX, with companies still treating working women as credit liabilities and maternity risks, with the credibility of feminists on the line, the consequences of a loss to Bobby could be dire. However, as Billie would later point out, "Margaret didn't see the big picture."

The Times also has a fairly negative review of Roberts' book, which is an odd juxtaposition.

European Anti-Americanism:

Here's a very insightful, though overly long, discussion of European anti-Americanism, and its connection to European anti-Semitism. A taste

After World War I, 'the Jews as rulers of America' became pronounced. It was at this juncture that the notions of Jewish Wall Street, Jewish Hollywood, Jewish Jazz, in other words of a thoroughly "Jewified" America became commonplace. It was at this time that all the forerunners for current codes such as the "East Coast" were permanently established. From then on, Jews and America became inextricably intertwined, not only as representatives of modernity but of holders of actual power. America was powerful and the Jews in it even more so. One of the standard staples of European anti-Semitism has always been to impute much more power to Jews than they actually have. Moreover, what makes this putative power even more potent is that it is believed to be clandestine and cliquish. With America's real power massively growing after World War I, power as a unifying notion between Jews and America became more pronounced and also lasting. The hostile perception of this alleged link became as integral to National Socialism as it later did to Stalinism, though with a significantly weaker intensity and less murderous manifestations.

Interesting Article on the AIPAC Indictment:

According to this article in Ha'aretz, U.S. Jewish leaders across the political spectrum think there is something not competely kosher about the indictment of two former AIPAC leaders for receiving classified documents, but they are keeping silent, for now, waiting to see how it plays out. The most disturbing quote from the article:

The investigation is also bad news for the Jewish community. Dozens of people, most of them Jews, have already been questioned. There were those who felt anger, particularly when asked questions such as, "Does AIPAC have dual loyalties?" or "Why do Jews actually have to act on behalf of Israel?" They told their friends they were asked "strange questions."

But I suppose this isn't surprising, when it's become respectable in many "intellectual" circles to suggest that a Jewish cabal lead the U.S. to war in Iraq on behalf of Israel.

UPDATE: With respect to Orin's comments above, given that the FBI investigation into AIPAC was headed by one David Szady, many would think it not at all surprising that inappropriate questions were asked by FBI agents. ["Although not named in the suit, Szady headed the elite department that former CIA Director George Tenet admitted in 1999 was involved with 'insensitive, unprofessional and highly inappropriate' language regarding the case of the attorney, Adam Ciralsky."] And the point of my comments was not that FBI agents are "intellectuals," but when intellectuals make prejudiced views of Jews respectable, it filters down.

FURTHER UPDATE: One reason I thought the Ha'aretz piece of interest was because many Jews active in politics absolutely despise AIPAC, some out of jealousy for its success, some because it is seen as too "right-wing" and friendly with Republicans, and some because it so transparently puts the power and prestige of AIPAC over any other consideration. If prominent Jewish activists are nevertheless universally privately defending AIPAC and its ex-employees, as the article states, that suggests they feel rather strongly that something is not right. Whether they are correct or not is beyond my knowledge.

Related Posts (on one page):

  1. A Response to David:
  2. Franklin/AIPAC case Query:
  3. More on the AIPAC Indictments:
  4. Interesting Article on the AIPAC Indictment:
Is Third Year Worth It?

Is the third year of law school all that valuable? Does it really require more than four semesters to take all of the truly meaningful courses? Some folks don't think so. See, for instance, this MSNBC article. An excerpt:

At many top law schools, the third year is famously relaxed, a halcyon interlude between rigorous introductory courses and the long hours that await graduates at law firm jobs. There is research and volunteer work, but also a lot of bar-hopping and little studying: 15 hours per week, according to one survey at 11 law schools, compared to 33 hours for first-year students.

But if it’s an extended vacation, it’s pricey: $30,000 or more at top private schools. And at many law schools, grads can’t count on the six-figure salaries awaiting many at the most prestigious programs, so an extra year of debt is a big burden.

Some educators want to see the third year beefed up, arguing the law is more complex than ever and future lawyers need more preparation, both for the bar and exam and for their careers. But others want it dropped.

Critics say there’s so much law that students will learn most of it on the job, anyway. They see the third year as a revenue racket, a full-employment scheme for faculty that comes at the expense of non-elite school students and discourages them from taking public service jobs.

I would be curious what VC readers think.

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Sunday Song Lyric: I have not done one of these in quite a while, but after seeing Neil Diamond in concert – and noticing the thunderous crowd response to “America” – I started thinking about the song’s unabashedly pro-immigration lyrics. “America” is a celebration of America as a land of hope and opportunity where people from other lands can come to prosper and pursue their dreams. Yet looking at recent polling numbers, it is hard to believe that a majority of Americans still share this vision. A large plurality, if not an absolute majority, of Americans believe in restricting the flow of immigration. Only a small minority believes more immigrants should be let in. I have no reason to believe the Neil Diamond concert audience was particularly unrepresentative on this score, and yet this song got a greater response than any other (with the possible exception of “Sweet Caroline”). Why? I’d suggest two non-mutually exclusive explanations.

First, it’s simply a good song that people like. Musical tastes need not be political. I certainly like many artists who espouse wrong-headed political views. Second, insofar as the song is an upbeat celebration of America, it strikes a patriotic chord among folks who have not thought much about the lyrics. It sounds like an unabashedly pro-America song, and that’s good enough for many listeners. (For another example of this phenomenon, see Bruce Springsteen’s “Born in the U.S.A.” – a song that sounds particularly celebratory and patriotic only until one considers the lyrics.)

In any event, here are the lyrics.

Far
We've been traveling far
Without a home
But not without a star

Free
Only want to be free
We huddle close
Hang on to a dream

On the boats and on the planes
They're coming to America
Never looking back again
They're coming to America

Home, don't it seem so far away
Oh, we're traveling light today
In the eye of the storm
In the eye of the storm

Home, to a new and a shiny place
Make our bed, and we'll say our grace
Freedom's light burning warm
Freedom's light burning warm

Everywhere around the world
They're coming to America
Every time that flag's unfurled
They're coming to America

Got a dream to take them there
They're coming to America
Got a dream they've come to share
They're coming to America

They're coming to America
They're coming to America
They're coming to America
They're coming to America
Today, today, today, today, today

My country 'tis of thee (Today)
Sweet land of liberty (Today)
Of thee I sing (Today)
Of thee I sing (Today)
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