Wednesday, September 17, 2014

The Meaning of "Harmless" in Describing Sexual Offenses

by Sherry F. Colb

In my column for this week, I take up the issue of whether prohibitions against incestuous marriage are distinguishable from prohibitions against same sex marriage (SSM).  The reason to discuss this issue is that various opponents of SSM (and of same-sex consensual sexual relationships more generally) have sometimes invoked prohibitions against incest in defense of their position. They say something like this:  "people seem to be okay with incest laws, so why do they suddenly become offended by laws against same-sex relationships, which stem from the same moral foundation?"  I propose in my column that there is at least one  important distinction between anti-incest laws and anti-gay laws that make the latter far more suspect and objectionable than the former. Nonetheless, I do not conclude that bans against incest or incestuous marriage (for consenting adults) are therefore legitimate, only that they are not as bad as SSM bans.  One reason to draw distinctions like this is that Justice Scalia famously lumped many different sorts of state laws against sexual behavior (including adult incest and homosexuality) into one category and implied that such laws are all of a piece.

One problem with Justice Scalia's category is that some of the laws in it inflict greater harm on their targets than others do.  I argue in my column that laws prohibiting same sex marriage (and same sex sexual activity more generally) fall into the "more harmful" category, while laws prohibiting incest (or incestuous marriage) fall into the "less harmful" category.  In this post, I want to focus on a different problem with the argument implicit in Justice Scalia's list and in some other writings I have recently encountered on the issue of sexual liberty.  Here is Justice Scalia's claim, in Lawrence v. Texas:  "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision [invalidating the Texas law criminalizing same-sex sodomy]."

In reading the different items on the list, the inference I draw is that Justice Scalia is identifying what he regards as laws that are (in his view) legitimate but that do not conform with the "harm principle." The harm principle holds that the law may only legitimately limit individual liberty to do as one pleases when one's chosen actions would inflict harm on others.  I understand the quotation in this way in part because Justice Scalia makes a point of qualifying his reference to incest by saying "adult incest."  Presumably, then, Justice Scalia is of the view that the Supreme Court's decision in Lawrence does not call into question prohibitions against incest that victimizes children, and that is because such prohibitions target behavior that harms others.  For the same reason, presumably, Justice Scalia does not place rape prohibitions on the list of newly vulnerable state enactments.

There is at least one item on Justice Scalia's list, however, that I would argue is "not like the others."  That item is bestiality. Bestiality is human sexual activity that involves a nonhuman animal.  There are at least two ways in which one might be inclined to characterize such behavior as harmless (and therefore as falling into Justice Scalia's category of properly decriminalized behavior after Lawrence).

The first approach is what may drive Justice Scalia's classification of bestiality:  because sexual conduct by humans that involves nonhuman animals inflicts no harm on other humans, it follows that it is harmless,  On this view, so long as no human is experiencing pain, suffering or death, the activity is harmless (and thus must find justification in some moral principle other than the harm principle). When the victim is a nonhuman animal, then, there is no victim at all.

This view strikes me as having very little to recommend it.  Hurting "others" ought logically to extend to hurting anyone who can actually experience being hurt.  That is presumably why, despite the fact that fetuses are not regarded as persons for Fourteenth Amendment purposes, no one has criticized laws banning "partial-birth abortions" as aimed at "harmless," "victimless," or "innocuous" conduct in the way that, one would probably criticize, say, Justice Scalia's listed state law prohibiting masturbation.  If a law criminalizes actions that inflict harm on a nonhuman animal, then the law can properly be justified as consistent with the same harm principle that we would use to test a criminal law prohibiting murder, aggravated assault, or rape.  To suggest otherwise is to claim that one can only cause "harm" to other humans.

A second way of defending the classification of bestiality as a "victimless" or "harmless" crime is more sophisticated than the first.  It posits that one could come up with particular examples of human sexual behavior involving nonhuman animals in which the human arguably does not inflict harm on the nonhuman animal. One such example might be where the nonhuman animal initiates the sexual interaction, and the human uses no force on the animal.  Because such interactions are possible and may occur sometimes, it follows -- by this logic -- that laws against bestiality are illegitimate, since one could capture the narrower category of "harmful" bestiality by prohibiting that directly rather than by placing the entire category of behavior off limits.

Attorney Antonio Haynes (who is my former student) makes a subtle, scholarly, and sophisticated version of the argument I have just described in a forthcoming law review article.

There is  insufficient space in a blog post to do justice to his article (which also makes other points about bestiality), but notwithstanding my admiration for the care and craft that the article displays, I do want to register skepticism about the bottom line that Haynes reaches.  

To my mind, real-life sexual interactions between humans and nonhumans are generally of the "harmful" sort, and the few "consensual" human-nonhuman sexual interactions that might in theory occur are themselves highly suspect, and thus properly stigmatized as well.

In the European countries where bestiality is legal, the enormous downside of such decriminalization is clear: animal brothels or "erotic zoos" exist, and so do the disturbing and sad photographs of victimized animals on the internet.  Though a country like Denmark technically permits only bestiality that does not result in animal suffering, the photographs that I can never hope to un-see evidence unwanted and forced sexual attacks that plainly caused pain and suffering and should properly be characterized as the rape of the animals involved (dogs and nonhuman primates, in particular).  To allow bestiality is, predictably, to disinhibit those who are inclined to commit sexual violence against animals, and it is difficult to imagine how a brothel in which an animal is held captive could be a place that protects against the "harmful" kind of bestiality.

But what about those individual cases in which the nonhuman animal initiated sexual contact and "wanted" a sexual relationship with a human?  I have to say first that I am extremely skeptical of people who claim that a nonhuman animal "wanted" to have sex with a human.  Having interviewed recidivist child molester Leroy Hendricks about his own history of offending, I can attest to the self-delusion of which sexual predators are amply capable in assessing their sexual "relationships" with their targets.  Hendricks told me, for example, that unlike another man who was in the "sexually violent predator" program in Larned, Kansas (a man Hendricks pointed out to me), he (Hendricks) never raped a child.

To be sure, unlike human children, adult nonhuman animals are understood to be capable of engaging in consensual sexual relations.  That is in fact how sexual reproduction occurs among nonhuman animals (at least those living outside of human captivity).  But this fact seems to me largely irrelevant to bestiality. 

Humans do not ordinarily regulate  sexual relationships between nonhuman animals who live outside of our farms, zoos, and other captive environments.  This is not because we believe that the relationships are all consensual (some animals, in fact, engage in forced copulation) but because we see no beneficial role for human laws in trying to help wild animals avoid unwanted sexual interactions with other wild animals.  Our intervention, in other words, would likely make animals' lives far worse than they are, so we treat at least those animals we do not "own" as separate sovereigns (until we wish to kill them, that is). By contrast, we do have an interest in intervening in sexual relationships between humans and nonhumans, since we know that a great proportion of these "relationships" are violent and harmful, and we have no biological reason to think that any are essential to the happiness of other animals.

Stated differently, there may be humans who feel that they can experience sexual fulfillment with other animals, but it is no more the job of nonhuman animals to fulfill the sexual needs of human adults than it is the job of human children to do so.  And to the extent that we worry that we are "depriving" nonhuman animals of desired relations with humans, we have little evidence for that worry.  Animals living their lives freely, outside of human captivity, rarely approach humans for sexual liaisons, at least so far as I am aware.  

To decriminalize bestiality is thus to provide assistance to those humans who wish to have sex with other animals; it does nothing for animals, and it exposes them to significant harm. And for the unusual cases in which the animal seems "interested," an analogy is worth considering.  When a human prisoner appears to a prison guard to be "consenting" to having sex with the guard, we have good reason to be suspicious of the consent and to treat as categorically non-consensual any such sexual relations.  The same holds true for "relations" between a human and a nonhuman animal over whom the human has sufficient control to be touching him or her sexually.

At this point, I think it important to note (as Haynes does, albeit for a different reason) that the harms involved in bestiality are very much like the harms involved in "raising" animals for food (and thus in consuming the animal products "raised" for such use).  In both cases, humans seek some kind of pleasure (culinary or sexual).  In both cases, the kind of pleasure in question is in general an important part of human flourishing, i.e., to be able to eat food and to be able to express oneself sexually. Nonetheless, one can eat healthfully and even decadently without demanding that animals be bred into existence, subjected to mutilations, and ultimately slaughtered -- as all animals in the flesh, dairy, and egg industries are.  And one can likewise express oneself sexually without involving a vulnerable captive animal who one may have a vested interest in believing reciprocates the human's desire.

Beyond these significant commonalities, in which both animal product consumption and bestiality inflict harm on nonhuman animals to serve human interests that could be served in other ways that do not involve cruelty to animals, there are other parallels too. In animal agriculture on land, breeding commonly takes place through what is euphemistically called "artificial insemination" but which in fact involves humans stimulating the breeding male to ejaculate and humans shoving their hands and/or tools into the anuses and vaginas of female animals.  This is what one pays for when one purchases dairy, eggs, and flesh foods, and it looks a lot like bestiality of the forcible sort.

In short, there are important differences between the legal prohibitions that  Justice Scalia places in the "parade of horribles" list in his  Lawrence dissent.  Bestiality, unlike other behaviors on the list, is almost always harmful, and if one understands what makes it harmful, one can easily see that consuming the "food" created through animal exploitation and slaughter is no more victimless than bestiality.

Tuesday, September 16, 2014

The Fragile Psychology of 21st Century Conservatives

-- Posted by Neil H. Buchanan

With very few exceptions, the Dorf on Law posts and Verdict columns that Professor Dorf and I write are fully independent projects.  That is, they are not only solely authored, but each of us rarely even knows in advance what the other will be writing about.  This is, in part, a matter of pure logistics and conservation of energy, because it would frankly be too time consuming to coordinate our topics.  It is also, of course, a matter of different interests and areas of expertise.  Most of the time, each of us just waits to see what shows up on the days when the other is writing.

It was, therefore, something of a pleasant surprise to note last week that our writings on Wednesday through Friday (Professor Dorf's Verdict column and his Wednesday and Friday Dorf on Law posts, along with my Verdict column and Thursday post) all converged on the same theme.  Working from very different starting points, we both noted how the presumption that conservatives use cold, hard logic, while liberals allow their hearts to bleed, has been turned upside down.  As Professor Dorf put it on Friday, the "familiar structure" of the claim goes like this: "Conservatives say that some well-meaning policy based on an emotional reaction of liberals will actually be counter-productive."

Here, I want to explore some further examples of how this presumption is upside down.  The emerging picture is one in which conservatives not only engage in fact- and logic-challenged argumentation based on heated emotions, but they also are doing so in an effort to be liked.  That is, notwithstanding chest-pounding claims (like some of the lines that I quoted in my post on Thursday) that amount to saying, "I'll do what I want, and you can all suck it if you don't like it, because I don't care what you think," the reality is that much of conservatives' energy is spent trying to get others to see that they are really good guys.

The perfect distillation of the "screw you" attitude, perhaps, was found in the 80's movie "Wall Street," in which Michael Douglas's Gordon Gekko character smirks while saying, "Greed is good.  Greed is right.  Greed works."  In some ways, that famous speech really can be seen as a big F-U to the rest of the world.  On the other hand, Gekko is speaking not to the world at large, but to a bunch of shareholders who are angry about Gekko's tactics.  He is saying, in essence, that they are being emotional, and he is there to set them straight.  Stop hurting yourselves, you chumps!

But in the real world, we hear that kind of talk from conservatives all the time, and it is not just in speeches to fellow shareholders.  It is impossible to shake the feeling that, for all their talk about how they do not care what other people think, conservatives dislike being disliked.  They fund think-tanks and influence academia (Olin money, anyone?) not just to justify conservative policies on efficiency-based grounds (grounds that are, as I have argued, infused with normative beliefs and are far from being objective), but to make people say, "You know, these guys actually have our best interests at heart."

The example that I discussed last Thursday, the conservative business writer Josh Barro's aggressive defense of the "ownership rights" of people who (like him) want to recline their seats on airplanes, no matter how inconsiderate that is of other people, provides some insights into this phenomenon.  The obvious tip-off is his contrived attempt at the end of his NYT piece to turn the story into a conflict between short people and tall people.  His argument, if you can call it that, boils down to this: "You people who care so much about other people's feelings should think about how great tall people already have it.  How dare you impose on those put-upon short people!  I'm the one who really cares about fairness and civility."

Why bother saying any of that?  What is it that makes it so important to misapply economic theory to justify one's own selfish behavior?  Why not simply embrace the ethos of "I've got mine, Jack" and be done with it?  It is possible, I suppose, that what is really going on here is an attempt by conservatives to condescend to talk to liberals on their own childish grounds, attempting to demonstrate that conservative ideals can be repackaged as mushy, emotional nonsense that will convince the feeble-minded.  But the defensiveness is too intense to support that explanation.  The rhetoric is generally not, "Let's think about how this seemingly selfish behavior is ultimately for the betterment of mankind," but instead heatedly shouts, "I am NOT a bad person."

This fits into a point that I made in a Verdict column a few months ago, when I described the obvious defensiveness of the conservatives on the NYT op-ed page who were arguing against income redistribution.  Both of those authors were, I wrote, obviously trying to work through their longstanding emotional pain from being shunned by their liberal peers, sneering that upper-middle-class liberals are not really concerned about the poor, but are instead obsessed about not being rich enough, and that they are really all a bunch of hypocrites.  "You call me selfish, but I know that you're selfish, too.  I'm just honest about it!"

This story also helps to explain a political meme that has puzzled me for quite some time.  As I noted in detail in a post last December, conservatives' go-to move is to accuse liberals of "envy," in response to liberals' attempts to moderate some of the income inequality in society.  Supposedly, we liberals wish to visit "vengeance" on the successful people who are life's real winners.  I have, at various times, likened this to a child whose mother soothingly says, "Don't worry, Dear.  Those kids who hate you are just jealous."

As I have explained (with as little emotion as possible), the liberal case for redistribution need not (and, as far as I have ever heard, does not) rest on any such emotional justifications.  I have never heard anyone say (even behind closed doors) that the real reason to tax the rich is to take them down a peg, nor have I ever heard a liberal say or imply that they worry about the rich being inherently superior in some way.  Indeed, we also hear the complaint from conservatives that liberals look down their noses at rich people, which is inconsistent with conservatives' claims that liberals are envious.  But when one is being emotional, of course, it is possible to believe two contradictory things.

Viewed in this light, the claims that liberals are acting out of emotion, from jealousy and so on, are a matter of projection by conservatives.  "Stop being so emotional!" becomes a way of dealing with one's own darkest fears.  If only people could see that our motives are good, conservatives seem to say, they would stop calling us names.

As Professor Dorf argued on Friday, the point is not that it is liberals who are the truly cool, rational players on this stage.  Instead, it is important to move past this archaic notion that reason and emotion are entirely separate spheres, and instead to understand how empathy, pathos, and other emotions can and should affect legal and policy analyses.  As he says, noting the increasingly emotion-laden attacks from conservatives is a matter of comparison, showing that, if anything, the roles have been reversed (assuming that there ever was a time when the roles lined up according to the conventional wisdom), with conservatives relying ever more on their guts.

Monday, September 15, 2014

What Is the International Law Justification for Targeting IS/ISIS/ISIL in Syria?

by Michael Dorf

A number of commentators--including my colleague Jens Ohlin and Yale law professor Bruce Ackerman--have argued quite persuasively that President Obama lacks domestic legal authority to conduct military operations against the Islamic State (IS).

There are really only two possible sources of such authority, and neither works. First, the President could be exercising his inherent power to defend the country against a foreign attack, in which case, at the least, the War Powers Resolution clock has started ticking, but as Ackerman points out, the Obama Administration's views with respect to Libya in 2011 (which I criticized at the time) suggest that the Administration does not regard the WPR as applicable. Second, the President could claim to be acting pursuant to the post-9/11 Authorization for Use of Military Force (AUMF) but as Ohlin and Ackerman (and others) point out, even under the broad view of the AUMF that includes authorization for targeting forces "affiliated" with al Q'aeda, IS is not covered, because IS is not affiliated with al Q'aeda.

Meanwhile, there is a further question worth raising. Even if Congress grants Obama a new AUMF for bombing IS, that would only mean that doing so would comply with domestic constitutional law. We would still want to know whether the use of such force is consistent with international law.

I think the answer with respect to bombing IS in Iraq is pretty clearly yes: IS has attacked the Iraqi government and so, at the invitation of the Iraqi government, the US is providing assistance in Iraq's exercise of its right to national self-defense.

But the picture is different with respect to bombing IS in Syria. The government of Syria has said that it would welcome US airstrikes on IS in Syria but only if coordinated with the Syrian government. Because US policy is hostile to the Assad regime, US airstrikes against IS in Syria will not be coordinated with the Syrian government and thus, by the latter's account, are an act of aggression. Are the strikes in Syria nonetheless permitted under international law?

That question seems to me to implicate US policy elsewhere. Since 9/11 the US has conducted drone strikes in the territory of non-belligerent countries, especially Pakistan and Yemen, with unclear levels of permission from the respective host governments. If and when Pakistan, Yemen, or some other country gave the US permission to carry out such attacks in their territory, the US would have been acting similarly to how it is now acting in Iraq: at the invitation of a host country exercising the right of national self-defense against an insurgent force. But it does not appear that all of the US bombing in Pakistan and Yemen has been with the permission of the host countries. Such attacks have thus been illegal under international law--except perhaps (and it is a very big perhaps) if one regards Pakistan and Yemen as giving safe harbor to irregular non-state forces with which the US is at war.

Even supposing that (proportionate) drone strikes in Pakistan and Yemen were permitted by international law, bombing IS in Syria would still be illegal because, by hypothesis, Syria would not be inviting the US presence and Syria cannot realistically be said to be giving IS safe harbor. The most that can be said here is that the Assad regime has targeted IS less aggressively than it might have, because it saw IS as a threat to some of the other anti-Assad forces. That is not safe harbor and, in any event, the Syrian regime does now seem intent on combating IS. But if the US cannot plausibly claim to be bombing in Syria either with Syrian permission or in response to a de facto belligerency by Syria, then there is no international law justification for the bombing.

Indeed, once one goes down this road, it looks like the Obama Administration policy of training and arming "moderate" rebels in Syria is itself pretty clearly a violation of international law too. That's what the ICJ said in 1986 in Nicaragua's case against the US for arming the contras. Significantly, in that case the US did not argue that it had a right to arm the contras because the US has the right under international law to try to overthrow bad regimes, but that the US was coming to the aid of El Salvador, which was under attack by Nicaragua. The ICJ rejected this defense on the facts but significantly, in the current circumstances there isn't even a fig leaf of a simliar argument.

The US does not say that by arming anti-Assad rebels we are protecting Turkey or some other ally against Assad. I suppose that if I were a lawyer for the Obama Administration I would try to argue that attacking IS in Syria is part of the national self-defense of Iraq, on the theory that Syria is either unwilling or unable to stop the IS threat from spilling over into Iraq, but that is also problematic. As noted above, the Syrians are willing to confront IS, so the argument would have to be that Syria is unable to take on IS. I think a decent argument can be made that there ought to be an international law right of national self-defense to attack enemies in the territory of a non-belligerent state even if that state opposes such an extension of hostilities, so long as that state's own efforts against the non-state enemies are ineffective, but there really is nothing in international law that currently authorizes such a right of self-help in the territory of non-belligerents. And even if this argument were to succeed, it would only provide a legal justification for attacking IS in Syria. It would not provide a legal justification for supporting the "moderate" rebels fighting against Assad in Syria.

So what is the Obama Administration's justification under international law for its military policy in Syria? So far as I can tell, Obama--like some of his predecessors in both parties--has simply ignored the fact that supporting the overthrow of the government of a foreign sovereign that is not attacking or threatening to attack is a violation of international law.

Except when Putin does it.

Now let me be very very clear. I am not saying that Russia's support for anti-Kiev separatists in Ukraine is morally equivalent to Obama's support for anti-Assad rebels in Syria. What I am saying is that the US cannot plausibly criticize Putin (or other aggressors) on the ground that his actions violate international law. They do violate international law, but that does not distinguish them from US actions.

Well, so what? Isn't it sufficient to point out that Putin is using military force to undermine a government that resulted from a popular revolution against a corrupt kleptocrat, whereas Obama is providing military support (in the "moderate" rebel policy) to undermine a ruthless dictator who commits atrocities against his own people? As I said, there is a very salient moral distinction between Russian and US policies.

But something substantial is sacrificed when the US, through its violation of international law, makes sincere resort to international law unavailable as a standard of criticism. We undermine our own credibility more generally and weaken the value of international law. This policy of weakening international law--which, as I have said, is bipartisan--is probably counterproductive in the long run. International law tends to serve the interests of powerful states, much in the way that the domestic law of property serves the interests of those who have property, and so the US has much to lose from the weakening of international law.

Let me float one last possibility. For some years, liberal interventionists like Samantha Power have argued that international law should recognize a responsibility to protect vulnerable civilian populations as the basis for military action. I am sympathetic to the idea in principle but I think that it must be tied to some sort of international process for authorization; otherwise, it too easily becomes a pretext for interventions on other grounds. E.g., Putin, even while denying that he is intervening in Ukraine, cites a duty to protect Russian speakers from the "fascists" in the Ukrainian government. And we in fact have a system for such authorization: the UN Security Council. That system is itself subject to criticism, but then the focus of change efforts ought to be on the Security Council, not the responsibility to defend.

In any event, even if I am wrong and the liberal interventionists are right that there ought to be international legal authority for otherwise unauthorized humanitarian interventions, international law--the UN Charter and customary international law--does not currently recognize humanitarian intervention as a ground for the use of military force. So the Obama policy remains a violation of international law.

Perhaps it's still the right thing to do. Sometimes there is a moral duty to violate the law. But here, as elsewhere, one would have greater confidence in American foreign policy if one had the sense that the government counted the violation of international law as a barrier to its favored policy, even if not an insuperable one.

Friday, September 12, 2014

Reason, Emotion, and the Law

by Michael Dorf

In my column on Wednesday discussing last week's same-sex marriage rulings, I noted that in his opinion upholding the Louisiana ruling, Judge Feldman dismissed the many contrary rulings by other federal courts as based on "empathy" and "pathos." As I explained, the charge was backwards: once one considers the arguments in play, it appears that the opponents of SSM are the ones who have given in to unreason. Indeed, in recent years and across a range of issues, American conservatives have more generally come to believe their "guts," (to use Stephen Colbert's line), even when the actual facts as evinced by evidence are to the contrary. (E.g., climate change; evolution; U.S. history). That is not to say that there aren't plenty of liberals whose views of the world are faith-based rather than evidence-based; there are; I'm simply making a comparative point.

Nonetheless, the claim that one's opponents have based their views on emotion rather than reason is a very common move, both in the culture generally and in law in particular. And it also tends to be a more common move on the right than on the left. For example, conservatives oppose raising--or in the orthodox view even having--the minimum wage because, they say, markets set wages, so that the minimum wage can only have any effect when the market wage is lower, thus raising costs, suppressing demand, and ultimately increasing unemployment. The argument is right under a certain sort of economic theory but wrong or at best very overstated in practice. However, here I'm less concerned with the employment effect, if any, of minimum wages, than I am with the familiar structure of the argument: Conservatives say that some well-meaning policy based on an emotional reaction of liberals will actually be counter-productive.

Standard views of the law incorporate this use-your-head-not-your-heart logic. Think of the iconic statue of Lady Justice blindfolded so that she does not give in to sympathy. Or think of standard jury instructions warning jurors. They warn jurors not to decide the case based on prejudice, which is fair enough, but they also tell jurors not to decide based on sympathy. Sympathy, like empathy, is seen as antithetical to the cold hard logic of the law.

During my first few years teaching at Columbia Law School, I encountered a reminder of the law's conventional opposition of reason and emotion whenever I looked out my office window, which opened up into the bowels of a famous Jacques Lipchitz statue of Bellerophon taming Pegasus. That office was considered undesirable (which is why I had it as a junior faculty member), and it was later turned into open space during building renovations, but I found the view through the statue interesting (albeit less conducive to quiet thought than my current views of Cayuga Lake and a waterfall). In any event, the statue was meant to symbolize Law (Bellerophon) bringing passion (Pegasus) under its control. As my former colleague Peter Strauss used to note, however, if you look closely at the statue you see something more like the opposite: Pegasus begins where Bellerophon's head should be, suggesting that passion has overtaken reason; Professor Strauss would also note that Lipchitz agreed to create the statue in the mid-1960s but it was not completed for many years, and that the growth of passion relative to reason reflected a certain perspective on the tumult of the period.

I'd like to offer an alternative interpretation of the statue, that may or may not have any connection to Licpchitz's intentions. Putting aside my objection to the premise that humans symbolize reason and other animals symbolize passion, I would argue the merger of Bellerophon as reason and Pegasus as passion symbolizes the inextricability of reason and emotion. The statue as thus reconceived rebukes the familiar notion that law should, or even can, be about thinking divorced from feeling.

The most famous articulation of a view of this sort in constitutional law is Justice Blackmun's dissent in the DeShaney case. There, the majority held that a county social services agency was not accountable for failing to intervene to protect a minor child from severe abuse at the hands of his father. Blackmun wrote that "compassion need not be exiled from the province of judging." But even that account of the view I am expounding understates the role of emotion, because Justice Blackmun conceptualized compassion (or emotion) as separate from reason. His idea was that a wise judge tempers justice with mercy, reason with feeling.

Yet modern brain science shows that emotion and reason are not even separate processes. People with damage to the emotional centers of their brains have great difficulty making decisions and reasoning more broadly. As Rebecca Tushnet argues in a recent Harvard Law Review article, the recognition of the role of emotion in reasoning should have concrete doctrinal applications in the law. Even more broadly, it has implications for how we understand the function of law itself.

Thursday, September 11, 2014

Using Economics to Justify Being a Jerk

-- Posted by Neil H. Buchanan

My latest Verdict column, published today, uses the recent controversy over reclining seatbacks on airplanes to make a larger point about the misuses of economic theory.  One of the foundations of the "law & economics" movement is known as the Coase Theorem.  Two weeks ago, a business columnist for The New York Times, Josh Barro, wrote a short, snarky piece in which he tried to use the common, bastardized version of that theorem to rationalize his proud willingness to be a jerk.  Here, I want to explore in further detail how economics is so often wrongly used to justify anti-social behavior.

[Before continuing, however, I do think that it is important to take a moment to note that today is September 11.  Despite all of the horrible things happening in the world, it says something very good that today is a day on which most people will go about their lives as if it were any other day.  That does not dishonor the memory of what happened thirteen years ago, but rather shows that life goes on.  Indeed, the very fact that I can comfortably write today not just about a relatively frivolous topic, but about one that is airplane-related, is a good thing.  Readers who are interested might wish to read some personal reflections about 9/11 from Professor Dorf and me, which we wrote to commemorate the tenth anniversary in 2011, here and here.]

In his piece for the NYT, and in an earlier piece that he had written for National Review, Barro does not merely try to argue that there is a theoretical case to be made that would justify reclining one's seatback on an airplane.  He positively screams that he revels in being inconsiderate of other people's concerns.  He begins: "I fly a lot. When I fly, I recline. I don’t feel guilty about it. And I’m going to keep doing it, unless you pay me to stop."  And there is the key.  He wants to describe this problem as merely a misunderstood economic market, where behavior should be judged by the cold, hard logic of economic theory, in particular this magic mantra called The Coase Theorem.

As I explain in my column, the Coase Theorem is one of the great mistakes of modern economics.  It is not that Ronald Coase himself was wrong.  Indeed, Coase spent years trying to tell people that they misunderstood what he wrote.  Unfortunately, for many people (including a lot of first-year law students, many of whose Property Law professors think that the Coase Theorem is a Rosetta stone), the Coase Theorem says something like this: "If you ignore transaction costs, then it does not matter to whom a property right is given, because either way, the result will be efficient."

In this case, the "property right" that supposedly needs to be allocated is the ability to control the space that a reclined seat can occupy.  It can either be the "property" of the person who might recline his seat into that space, or it can belong to the person whose knees, laptop computer, head (if leaning forward), and so on might be occupying that space.  Barro simply asserts, without explanation, that the property right belongs to the passenger who might recline into that space.  As I describe in the column, that is at least contestable, for reasons that have everything to do with people's general misunderstanding of what property rights really mean, in the context of Coase's actual theorem.

One of the best papers critiquing the common misunderstanding of the Coase Theorem was written by an economist at Queens University in Canada, Dan Usher: "The Coase Theorem is Tautological, Incoherent, or Wrong."  As Usher explains, the only way that the pseudo-Coase approach works is to say that the property right does not need to be assigned at all.  If there truly were no transaction costs, then it would be possible for the parties to make a decision that maximizes their combined happiness.  Or, put differently, the absence of transaction costs is logically equivalent to having one decision-maker, not two.

To his minimal credit, Barro does not take the extreme no-transaction cost position.  Indeed, if he did, then he would have to admit that his aggressive defense of the right to recline is no more nor less defensible than the opposite argument.  In response to an argument by another economist, who at least implicitly understands that Coase's real concern was entirely about the interaction of real-world transaction costs, Barro dismisses the idea that there is anything difficult about buying and selling the right to recline a seat.  That is the only way that he can write, "If [a] passenger so badly wanted the passenger in front of him not to recline, he should have paid her to give up that right," rather than to acknowledge that we need to understand the relative sizes of the transaction costs before deciding whether it is the passenger sitting behind who must bear the consequences of another person's selfish actions.

But in the end, Barro's argument is not really about reclining seats.  It is, instead, yet another case in which someone with economics training takes a little bit of knowledge and tries to turn it into a justification for being a jerk.  He is not merely making the objective statement that people are sometimes willing to ignore other people's concerns, and that policy must be clear-eyed in assessing how such self-interested actions play out in real life.  His is a normative assertion that it is right and good that people are selfish.

Barro's tone gives away the game.  In the National Review piece, he announces: "The property rights in reclining a seat belong to the person who is sitting in it. I will recline if I please."  Because I can, I shall!  And if people complain?  From his NYT piece: "[P]eople like to complain about all sorts of things; if they really cared that much, someone would have opened his wallet and paid me by now.”  He even disparages the people who have used the "Knee Defender," a device the locks seatbacks in place, for "steal[ing] from their fellow passengers.”  He describes another writer's effort to use pre-printed cards to ask people to consider other people's feelings as "inane," calling the cards "stupid."  (His attempt, at the end of his NYT piece, to turn the argument into a short-versus-tall fairness question is a transparent sham.)

The argument that "you could just pay me not to be a jerk" is, in the end, merely an attempt to hijack Ronald Coase, pretending that his theorem is a magical phrase that somehow converts selfish, anti-social behavior into market activity that can be traded for cash.  As one of my research assistants asked, why not invoke Coase to say: "You don't like me catcalling women on the street? I have a First Amendment property right to how I use my voice, so you're going to have to pay me to stop -- that's the only way to sort out whether someone values not being demeaned more than I value demeaning people."  Of course, there are other ways to get people to stop being jerks.  Saying, "Pay me or I'll offend again" sounds like it is somehow objective, because it invokes economic theory (incorrectly).  But it is nothing more than an emotional defense of a childishly simplistic worldview.

In the late 1990's or early 2000's, some economists surveyed graduate students in the top Ph.D. programs in the U.S., trying to determine whether economists are already jerks when they sign up for a Ph.D. program, or instead that they become jerks by studying economics.  The premise of the study was backed up by other surveys that showed that people with economics training were much more likely to exhibit anti-social behaviors and to rationalize narrow-minded selfishness.  The results suggested that there was a huge self-selection element, with anti-social types flocking into graduate economics study.  Of course, it is possible that the "nurturing" of jerkiness had happened at the undergraduate level, too.

In any event, it is remarkable how often economists -- who claim merely to be explaining the world -- fiercely defend selfishness as a good thing, and ridicule people who act selflessly.  It is not merely, it seems, that the non-selfish people are "leaving money on the table."  They are seen as chumps, or worse.  "You want to help children by working at a charity?  Stop being such an economic waste!"  This defensiveness and sense of grievance coming from so many economists is, perhaps, unsurprising.  But the real Coasean analysis does not change the fact that they are losing a fight with their mental demons.

Finally, let me note a further point regarding seatbacks.  In addition to defining property rights and letting the passengers fight it out -- a fight that, as I describe in my Verdict column, will not be any more "economically efficient" than the current squabbling -- another possibility exists (even outside of government regulation).  The airlines could simply install non-reclining seats.  And honestly, I do not know why that has not happened yet.  The in-flight nastiness is certainly costly to the airlines, not just in the occasional diverted flight, but in time wasted by flight attendants, damage to seats that are kicked in retaliation against rude passengers, and so on.  The real Coasean question is not always limited to: "Which of these two parties should be able to sell their property right to the other?"  Sometimes, after taking account of all transaction costs, the answer is: "None of the above."

Wednesday, September 10, 2014

Banning SSM Is Not The Same As Not Getting Around To Authorizing SSM

by Michael Dorf

In my latest Verdict column, I discuss last week's same-sex marriage (SSM) rulings: Judge Feldman's district court opinion upholding Louisiana's SSM ban; and Judge Posner's 7th Circuit opinion invalidating the Indiana and Wisconsin SSM bans. My column praises Posner's opinion overall but especially for his injection of a new argument into the growing genre of opinions striking down state SSM bans. As he foreshadowed during the oral argument, Posner performs a kind of judicial jujitsu. He turns the state claim that it is concerned about the consequences of accidental heterosexual procreation against the state: If the state were really concerned about those consequences, he says, it would permit same-sex couples to marry, because they are raising thousands of adopted children who were born as a result of such accidental heterosexual procreation.

That's a very nice move, but as I note in the column, it is potentially vulnerable to a rejoinder by the state: Rational basis scrutiny permits the state to tackle a problem one step at a time; here the state is tackling the problem for the heterosexual couples who keep their offspring; it need not also tackle other aspects of the problem. I say in the column that this is not a persuasive rejoinder but I do not elaborate at length why. Consider this blog post an extended footnote to the column.

The state rejoinder can only get off the ground if laws that facially disadvantage people based on sexual orientation are subject to mere rational basis scrutiny, rather than to heightened scrutiny. For the last 18+ years (since Romer v. Evans) the Supreme Court has found it unnecessary to decide what level of scrutiny applies to such laws, invalidating laws disadvantaging gays and lesbians even under rational basis scrutiny. There is a robust academic literature that argues about whether those decisions apply conventional rational basis scrutiny or a kind of covert heightened scrutiny. When I teach the relevant line of cases, I call this, tongue in cheek, "extra crispy rational basis scrutiny." (Occasionally students, to my horror, write that phrase on an exam as though it were an actual legal term of art.)

Meanwhile, precedents in some states and circuits say that sexual orientation is not a suspect or semi-suspect classification, so that judges in these states and circuits take the position that conventional rational basis scrutiny is the correct standard. I think those precedents are wrong for two reasons. First, sexual orientation is, or should be understood as, a form of sex discrimination, both literally and substantively. It is literally a form of sex discrimination because, in the case of SSM, whether a marriage license will issue depends on the sex of the applicants. It is substantively a form of sex discrimination because prejudice against sexual minorities relies on impermissible stereotypes about sex roles--the very evil that is at the core of what makes sex discrimination constitutionally objectionable.

Second, even if one thinks that sexual orientation should not be considered sex discrimination, standing alone it bears the hallmarks of a suspect (or semi-suspect) classification. Judge Posner summed up the reasons matter-of-factly and pithily when he wrote that "homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world ...." Only an unprincipled commitment to the notion that the Supreme Court is done recognizing suspect classifications--a kind of arbitrary numerus clausus--can support the view that sexual orientation is not a suspect classification.

But let us suppose for the sake of argument that the SSM bans were subject only to rational basis scrutiny. Even so, the one-step-at-a-time defense would fail as a response to Judge Posner's argument about adoption. To see why, one needs to examine exactly what the state is saying in its accidental procreation argument. The state is not saying that preventing same-sex couples from marrying in some way prevents accidental procreation by unmarried heterosexuals. And for apparently good reason, because that would be both illogical and, as Judge Posner shows, counter-factual. There is absolutely no evidence that permitting same-sex couples to marry in any way discourages opposite-sex couples from marrying.

Now maybe . . . just maybe . . . the state could argue that permitting same-sex couples to marry does discourage opposite-sex couples from marrying. Sure, there's no evidence for this supposed phenomenon, but traditional rational basis scrutiny does not require evidence. As expressed in the most forgiving formulation, if a court can conceive of a state of facts in which the state's law would further the state's goals, then the law satisfies rational basis scrutiny. Can we conceive of such a world? Sure, but the problem is that the only rational way of conceiving such a world is itself constitutionally problematic.

What would be the mechanism by which permitting same-sex couples to marry discourages opposite-sex couples from marrying? In a word, homophobia. Some number of opposite-sex couples who would otherwise marry would see that marriage ain't what it used to be now that those disgusting people can git married, so they would decide instead just to shack up. Then, when their fornicatin' led to babies, they would be less likely to stay together than if they had married. Presto! Permitting same-sex marriage would have undermined traditional marriage and thus contributed to the problem of accidental procreation by unmarried heterosexuals.

Let me emphasize that, to their credit, Indiana and Wisconsin did not make this argument. And to the credit of heterosexuals in Indiana and Wisconsin (and so far as I am aware, the rest of the country), homophobia is not so extreme that it actually leads to the foregoing hypothetical scenario. But again, traditional rational basis scrutiny does not require actual facts, only those that can be "conceived" (pun foreseen but not intended). Suppose that some other state were to advance the hypothetical scenario as an ostensible rational basis for a SSM ban. Surely a judge could conceive the hypothetical facts that I just conceived, right?

Yes, but whatever else the extra-crispy cases mean, at a minimum, they stand for the proposition that animus cannot be the basis for legislation, and in the imagined scenario the heterosexuals who are discouraged from marrying are discouraged because of animus: they are so disgusted by the prospect of SSM that they forgo marriage themselves. To be sure, the state would say that it doesn't share the animus; it is merely taking account of it for the benefit of the children. But that option is foreclosed by Palmore v. Sidoti, which held that, even in determining the best interest of actual children in a custody case, a judge could not in effect incorporate private bias. As the Court said there: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore involved race discrimination, but nothing about its logic would make it inapplicable to other constitutionally forbidden motives, such as the general prohibition on animus.

Accordingly, Indiana and Wisconsin were right to place no reliance on the imagined scenario in which straight people don't marry because they are demoralized by gay people marrying. It doesn't happen; it is an offensive claim; and even if the state were to advance the argument, it would fail under the logic of the animus cases and Palmore.

So what is the argument that the states advance regarding accidental reproduction? Their argument is not that that they need to ban SSM to mitigate the harm of accidental reproduction by unmarried heterosexuals. Their claim is simply that they do not need to extend marriage to same-sex couples because same-sex couples do not accidentally procreate.

At this point I want to make one very, very, very simple observation: The laws being challenged in the SSM litigation do not simply fail to extend marriage to same-sex couples. They ban SSM. So even if mere rational basis scrutiny should apply to such laws (and it shouldn't), the argument that there is a rational basis for failing to extend the institution of marriage does not explain why it is rational to ban SSM, rather than merely to fail to extend it.

Here we can use a variant on a hypothetical example offered by Judge Posner to illustrate the point. A state issues driver's licenses, initially simply for the purpose of ensuring that people operating motor vehicles can do so safely. If that is all that a driver's license does, then the state has a rational basis for failing to issue "non-driver's licenses" to people who don't drive. But over time, the driver's license begins to play multiple other functions. Private firms like banks, airlines, and bars demand to see a driver's license as identification; the government itself does the same in various contexts; perhaps even hospitals demand to see a driver's license as a condition of visiting a sick relative. Eventually, the driver's license comes to be a kind of universal ID card. Now imagine that non-drivers (including people who are physically unable to drive for various reasons such as blindness) organize to seek non-driver's licenses. If at that point the state passes a law or a state constitutional amendment forbidding the issuance of non-driver's licenses, the state can no longer rely on the original reason for issuing licenses only to drivers. The original distinction--between people who might endanger the public by operating motor vehicles and those who don't--has no bearing on all of the collateral benefits conferred by having a govt ID which are sought by the non-drivers. So even though the state may have originally had a rational basis for failing to issue non-driver's licenses, it lacks such a rational basis for banning them once the collateral benefits are clear.

Likewise with respect to SSM. (Indeed, even more so, because in the foregoing scenario, the non-drivers have another, albeit more expensive, option: they can obtain federal passports. But there's no way to get the state benefits of marriage by getting "federally married.") Perhaps it's true that at some point in the past state recognition of marriage for opposite-sex couples was rooted in concerns about accidental procreation. Even so, everybody knows that the SSM bans were not enacted because of a judgment that same-sex couples don't need protection against accidental procreation. My research in a news database reveals not a single reference to the phrase "accidental procreation" in connection with same-sex marriage before 2006, with nearly all of the references coming in the last couple of years.

The best that can be said for the accidental procreation argument is that it is not as ugly as some of the anti-gay arguments that have been raised in the past to defend anti-gay laws. (See, e.g., here.) Nonetheless, the sheer ridiculousness of the accidental procreation argument reveals it to be an obvious pretext, so that any judge or Justice who accepts it will likely be ridiculed, if not reviled as a bigot, in the not-too-distant future.

Tuesday, September 09, 2014

Assuming Your Result: Another Great Moment in Economic Silliness

-- Posted by Neil H. Buchanan

Are executives overpaid?  If you are inquisitive and open to thinking about evidence and logic, that is a difficult and nuanced question.  If, instead, you are a mainstream economist, then this -- like all questions -- is easy.  Although an awful lot of work goes into dressing up the analysis, the answer boils down to this: Executives cannot be overpaid, because what they are being paid must be the amount that they should be paid.  Think I'm joking?  If only.

The latest example of this nonsense showed up in a fawning news article by a New York Times sports reporter last week.  Two economists (one of whom teaches at a prominent law school) wrote a typical economics article, in which they claimed to show that college football coaches' salaries are justified by the coaches' jobs being CEO-like.  That is, they noted that big-time college football coaches run large organizations, in which they manage hundreds of people, and they are asked to deal with the media, politicians, the public, and so on.  Moreover, they are supposedly held to account by the rigorous and unyielding performance standards of winning and losing.

(Note: Although I have written at length recently about college sports, this post is not concerned with any of those issues.  I am using the Times article and the paper that it discusses to make a point about current practices and norms in academic economics.  The football aspect is incidental.)

Once one has made the CEO comparison, however, it might occur to most people that the right way to think about this is through the well-established body of research that shows that executive pay is anything but market-driven.  This research goes back decades, and it is based on both objective evidence and the testimony of many people who helped rig the executive pay game in the first place.  Salary committees (at least those that are trying not to look too obviously like the CEO's puppets) set up nominally objective measures that, by design, push compensation inexorably upward.

The standard approach, widely discussed by everyone who follows such things, is to set up a game of leap-frog, comparing Company A's CEO's pay to that of Companies B, C, and D.  If D's CEO gets a raise (based on, say, an increase in the share price for one quarter), then A's CEO can say, "But wait, I was the highest-paid CEO in this group, and now I'm not, even though I've done nothing wrong."  B and C say something similar, and because it is all an inside job, "no" is not an acceptable (or even thinkable) answer.  There is an upper limit, because there is a finite amount of money, but there is no logical connection between the quasi-equilibrium and "market fundamentals."

Moreover, there has been a large body of research indicating that the measures of "performance" that are used to measure CEOs' worthiness are deeply flawed.  In organizations that sometimes employ tens or hundreds of thousands of people, all results (or at least all positive results, but sometimes negative results as well) are attributed to the top executive.  "Creation of shareholder value" is said to be the doing of the dynamic chief executive.  In the analogy to college football, wins and losses happen entirely because of the head coach.

These objections to the idea that CEOs are paid "what they are worth" are so well-known, in fact, that even NYT op-ed columnist Joe Nocera knows about them.  In his column last Friday, he ran through most of the common objections to the conservative economic mantra on CEO pay.  Of course, being a slave to the conventional wisdom, he indulged in a bit of academy bashing: "It’s amazing the things academics can find worthy of study, isn’t it?"  Yes, the problem is woolly-headed professors, not the takeover of economics and related fields by a cult-like group of apologists for power.  Right?  But I digress.

When I say "even ... Joe Nocera knows" these things, I am referring to the obvious fact that Nocera frequently does not appear to know what he is talking about, even in his original field of journalistic expertise: business.  He is an enthusiast, letting his emotions get ahead of facts and logic.  That is not to say that he is always wrong.  (He is no David Brooks or Ross Douthat.)  For example, his newest column provides a reasonable discussion of "corporate inversions," which are a major tax policy issue.  My point is that, if even someone as insistently unimaginative as Nocera knows about the arguments regarding executive pay, then those arguments must be reliably mainstream.  (Nocera also spins out of control at the end of the column, failing to understand the cash flows in university budgets.  But that is par for the course.)

That, however, does not stop our intrepid economics professors.  Rather than acknowledge that there are competing theories within labor economics, they pepper their paper with references to a monolithic thing called "economic theory," which provides unambiguous answers that can be tested.  From the abstract: "[Coaches] contracts’ features are consistent with what economic theory would predict."  And from the second paragraph of the paper: "Yet economic theory tells us that lucrative compensation is not necessarily a problem if the structure of the employment contract is aligned with value creation."  And in the conclusion: "In sum, we find that a close comparison of CEO employment contracts and college football coach contracts shows that both sets of agreements conform to the predictions of economic theory."

What is this unvarying economic theory to which the authors refer?  They never quite say, because they apparently believe it to be obvious.  The idea is that rational actors would not pay people more than they bring into the organization, because that would be irrational.  (Circularity is a big part of modern economics.)  Indeed, the final sentence of the article all but gives away the game: "Thus, if one believes that CEO compensation is set by the market at an appropriate level, and that employment contracts reflect this equilibrium, then one should reach the same conclusion about football coaches."  (This sentence was reprinted in the NYT article that I noted at the beginning of this post.)

And should we believe that CEO compensation is appropriately set by the market?  The authors clearly view this, too, as a trivial question.  Indeed, they could more honestly have written: "Thus, because one should believe that CEO compensation is set by the market at an appropriate level ... ."  For true believers, there is no "if" about it.

What is especially interesting here is that, as bad as the logical starting point might be, the analogy between CEO compensation and college coaches' pay is worse.  At least in for-profit businesses, the notion of "maximizing shareholder value" can be defined with some logical coherence.  Again, that does not mean that CEOs are actually paid according to a sensible definition of such value, but one can at least start from there to analyze the important questions.  But other than inventing the term "program value creation," the authors have nothing useful to say about how to measure "value" in the college sports context.  Maybe they are assuming that the money coming in from TV contracts is somehow tied to coaches' win-loss records (a truly bizarre idea); but how is the increased "value" of a big-time sports program meaningfully compared to what a coach does?

Indeed, the paper cannot (and does not try to) deal with the fact that most of the programs in question are drags on the parent universities' finances.  It would be more sensible financially to shut down many of these programs and turn them into club sports or Division III programs without athletic scholarships or TV money.  Yet, we can be sure that alumni and, in the case of public universities, legislators would quickly tell us that the true "value" of the program is much more than the TV, ticket, and memorabilia revenue.  It is all about creating warm glow, building loyalty, encouraging applications, and so on.

What would "economic theory" tell us about that?  Well, if we assume that CEO pay is set by the market, and if we assume that the college football market rationally and efficiently aligns coaches' pay with whatever people "value," then the answer is that the coaches are being paid what they should be paid.  Assuming one's result is easy.  What takes some skill, as this paper demonstrates, is making it appear as if one is doing anything more than merely justifying the status quo.