Eugene Volokh's Blog, page 2679
November 2, 2011
Okay Someone Explain It To Me
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I am sure that many readers have seen this floating around the internet. I am not great at math; I'm not intuitive at it and hate trick questions most of all, because they are ... tricky. On the other hand, ever since realizing when I started law school that in my life I couldn't avoid — what, exactly? — well, the basic math required to do the first year of a standard MBA, I have forced myself to grapple with math with my limited math intuition. I work problems, learn the formulas, do online courses that force me to do problem sets to keep basic skills in things like statistics.
I'm saying all this as a suggestion to people like me who, unlike apparently the vast majority of VC commenters, are not particularly good at math but need it at some level. The problem for folks like me, who need it, even like it, but are not great at it, is that there's always a higher level. The key for most people, for people like me, as with most technical subjects that are not directly your day job but still important, is to figure out where to perch yourself. There's no point in my trying to turn myself into a scientist, engineer, economist, or CS person. What this means is that I do best when it's fairly routine, and I'm working within a particular topic — what I hate and what I'm sure most people like me hate, are tricky word problems that might draw on something completely outside how I understand the problem. The sort of intuitive leap that I am really good at in some things, but not in this.
Put another way, if it's the sort of problem that The Chief Conspirator loves, it's probably my worst nightmare. That said, I assumed that this was one of those fiendishly counterintuitive problems that sometimes confuse even sophisticated technical folks. But even after consulting one of my pop sci books on games with statistics, it didn't seem to fit. I won't embarrass myself by trying to explain how I thought about it; I did start by asking, suppose there were only one choice, what? Suppose there are two choices, what? But this approach didn't seem to quite answer the question. I'm now not sure if the question is ambiguous in some way, or whether I'm simply missing, as ever, the intuitive leap. It's bugging me, though, and I Won't Rest Until You All Have Answered It.
(And while I'm thinking of it, I should note that I have been experimenting with my comments policy on my posts. I've been swinging round to the view that I don't have time to edit comments, or even read them most of the time. So I am generally going for a no comments policy, unless I have a specific question or series of questions to which I want to direct commenters. As in one of my earlier posts on Greek CDS exposures, focusing the questions to commenters and deleting responses that were off topic seemed to help focus the comments. It seemed both to draw in expert substantive comments and to avoid the problem of path dependency leading to the entropic phenomenon of Comment Thread Decay — a special Hari Selden-like natural law of social networks with anonymous commenters. So this is opened to comments, and ... please explain your answers.)
(Update: Thanks for the explanations; I understand the recursion now. Further question: does this kind of recursion problem show up in actual computer science situations? In however complicated or specialized form? Of course, my reason for posting this was also to indirectly think about ways in which people have to "pick their level" in technical subjects. That means, in many situations, having enough background to spot the problem as a problem and then have an inkling of how one might solve it — but then having to ask other people to actually have confidence in an answer. I'm interested, in other words, in how to think about managerial decision-making on the part of non-specialists and specialists, including when to ask for help. In this case, what the specialists tell me, among other things, is that it is dangerous to assume in this case that there is a correct answer as though it were an SAT or brain-teaser with a defined answer. I sort of thought this — understood that I seemed to be looping — but then didn't have the knowledge to have confidence that this was, in fact, the core of the problem.)
November 1, 2011
Why Is the Law So Either/Or?
One of the main things a law teacher does in class is to explore the boundary regions of a legal doctrine—the hard-to-categorize cases that are most likely to give rise to litigation: Is it an assault for a man to kiss a sleeping woman? Has the hunter acquired ownership of a wild animal when one of his bullets has been lodged in it, whereupon the animal stumbles into another hunter's trap? Is the alumnus' promise of a donation a binding contract? Posing these kinds of questions may be the activity law professors most often indulge in, often to excess.
One of the most fascinating problems raised by such boundary cases is why the law is so disturbingly rigid when dealing with them, why it paints in black and white, when reality seems to come in shades of gray. The law insists that something either is an assault or is not, either gives rise to ownership or does not, either is a binding contract or is not. There are no in-betweens.
The trouble is that many of the actual cases seem like in-betweens. In fact a case would never reach the courts if it did not seem to be in-between. But why not let the court say that while this is not a clear-cut case of an assault, it is sort of an assault and that therefore we will award the victim a fraction of the damages, or impose on the perpetrator a fraction of the punishment, that would be appropriate if this were a clear-cut case? Wouldn't that avoid a lot of unnecessary hair-splitting hairsplitting? That's what many legal scholars have come to believe. Are they right? Would it be better if the law were less either/or?
My own conclusion in thinking about this question at some length is that it quite simply cannot be done—not for practical, but for logical reasons. To give you the flavor of the kind of difficulty one runs into if one tried to make the law less either/or, let's consider a very specific kind of boundary problem: the transition from life to death.
As we look more closely at the stages through which everyone passes as he moves from being fully alive to being fully dead, it starts to feel increasingly artificial to designate any one point in this progression as demarcating the boundary between life and death. A person is a bundle of organs, every single one of which can function well, adequately, poorly, barely, or not at all. The brain is just one of these. Not only is brain death not an obvious, indisputable divider between life and death, there is the fact that brain death itself is a matter of degree, of stages, at any one of which someone might linger and languish for shorter or longer periods.
Would it not make sense to treat these intermediate stages as intermediate legal categories, during which someone enjoys only a portion of the rights that accrue to him while fully alive and a good deal more than would accrue to him after he is deemed dead? Let's see what would happen if we tried to make good on this.
Imagine, then, a human being at a thousand (or even a hundred thousand, or a million if that seems more plausible) separate stages, ranging from full aliveness at one end to utter cellular decomposition at the other. This is the continuum along which, if we departed from the usual either/or approach, we would gradually reduce someone's rights: the less alive he is, the less like a human being we will be required to treat him.
Let's call the creature just one notch below a fully alive, regular human being H-minus-1, the creature two notches below a regular human being H-minus-2, and so on. Now suppose we had a choice to make between an H on one side and an H-minus-1 on the other side. What I have in mind here is a choice—any choice—about whether H or H-minus-1 should suffer a certain adverse effect, a choice, for instance, between giving aid to H or to H-minus-1 (or between imposing an unavoidable risk on either H or H-minus-1). To sharpen the issue, let us assume that the decision is made by someone with a duty to render aid, an emergency room physician, say, or a lifeguard.
If the choice is between an H and an H-minus-1 and we subscribe to the gradualist approach, we should presumably give the edge, by a narrow margin, to H. Being more fully alive, he has a greater claim to the kind of aid we accord the living. What if the choice is between an H-minus-1 and an H-minus-2? Presumably, by the same token, H-minus-1 should win out over H-minus-2 and so on down the line to H-minus-1,000.
Next, however, let us complicate the choice slightly. Suppose the choice is not between H and H-minus-1, but between one H and two H-minus-1's. Now it would seem that the edge belongs to the latter. Two H-minus-1s seem worth more, as it were, than one H. The doubling in quantity seems to more than make up for the slight drop in quality.
Let us repeat this process by comparing three H-minus-2s with two H-minus-1's and one H. Presumably the three H-minus-2s beat out the two H-minus-1s, which in turn beat out the one H. Now keep reiterating this process, so that we have a menu of alternatives that contains at one end 1,001 H-minus-1,000s, 1,000 H-minus-999s, and 999 H-minus-998s and at the other end 3 H-minus-2s, 2 H-minus-1s and 1 H.
To be painfully explicit, here is the menu:
1 H
2 H-minus-1s
3 H-minus-2s
4 H-minus-3s
. . .
999 H-minus-998s
1,000 H-minus-999s
1,001 H-minus-1000s
Apparently the package in the second row (2 H-minus-1s) should be chosen over the package in the first row (a single H); the package in the third row (3 H-minus-2s) should be chosen over the package in the second row and therefore also over the package in the first row; and continuing all the way down the line, the package consisting of 1,001 H-minus-1,000s should be chosen over the single H as well.
More schematically put:
H < 2 H-minus-1s < 3 H-minus-2s < 4 H-minus-3s . . . < 1,001 H-minus-1,000s
where < of course means "less deserving of help than." But this is absurd! A single H-minus-1,000 is a collection of completely decomposed cells. How can a set of 1,001 such collections possibly trump a single living human being, which is what an H represents? Something has gone wrong. But what?
One or more steps in our chain of inference must be in error. Somewhere in our chain of comparisons, we must have made a mistake. At least one of these inequality signs must not be correct. But what would it mean to say that one of these inequality signs is wrong?
It can mean only one thing: that at some point it must be the case that subtracting an increment in quality from H-minus-n as we go down to H-minus-(n + 1) cannot be made up for by increasing the quantity of such creatures by one. A small decrease in quality cannot be made up for by a small increase in quantity.
In other words, there is no gentle transition into that good night, as it were. Death is a cliff not a gentle slope. Conceptually it is not possible to be just a little bit dead or a little bit alive. Death is never partial, it is quintessentially an either/or phenomenon. The same turns out to be true of many legal concepts.
If you are interested in reading more about this, you might either look at my book Why the Law Is So Perverse, or at the work of Larry Temkin, on whom my argument here draws (though the problem of either/or is of no particular concern to him), specifically A Continuum Argument for Intransitity, Philosophy and Public Affairs, 2, no. 3 (1996).
Diversity Within Student Groups vs. Diversity Across Student Groups
I agree with most of what co-blogger Eugene Volokh writes about the benefits of have a wide range of student groups at law schools, including ones that focus on specific ethnic or religious groups. I addressed a similar issue in this 2007 post:
Those who argue for diversity in higher education implicitly envision a school that has a "critical mass" of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.
By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis' traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.
To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don't want to be associated with a distinctively Jewish school have plenty of options, even if they can't attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way.
What I said about diversity across schools also applies to diversity between student groups within a given school. By having a distinctive Jewish student group, black student group, Christian group, and so on, diversity across groups is enhanced even if these groups are not internally diverse (indeed, sometimes precisely because they aren't). Obviously, internally homogenous student groups have limitations. But those are to some extent offset by the fact that there are usually many other student groups available, including many that are not focused on a specific ethnic or religious identity.
For reasons I have indicated in the past (e.g. here, here and here), I have various reservations about the diversity-promoting affirmative policies currently practiced by most universities. But that does not undermine the point that there are real benefits to having a wide range of student groups, including some which are internally homogeneous.
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Now There's a Harassment Claim That Was Quite Rightly Rejected
From Walker v. Jackson (EEOC Oct. 6, 2011):
On December 1, 2011 [sic], Complainant filed a formal EEO complaint alleging that he was subjected to harassment and reprisal on the basis of his religious beliefs (Pentecostal). Briefly, the complaint alleged that, on November 18, 2010 [sic], Complainant was the recipient of an email from the Acting Director, sent to the NCEA global list-serve (which includes Complainant and all other NCEA employees), announcing an on-site celebration of a same-sex marriage of an employee which read as follows:
[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feeI free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.
Thirteen days later, on October 18, 2010, Complainant responded to the Acting Director's email, with a copy to the NCEA global list-serve, with the following message:
I feel your message announcing the celebration of the "union" of [Employee A] and his "Partner" was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones "marriages" between men and women, not men and other men. As acting Office Director, I feel you could have been more "sensitive" and "neutral" with regards to this issue.
The next day, NCEA employees sent approximately 15–20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage. None of these emails specifically mentioned Complainant or his email. The record does show that two employees did email Complainant personally (not sent to the NCEA global list-serve) and expressed the opinion that Complainant's email was insensitive because it was sent to everyone, including Employee A, rather than just to the Acting Director.
By final decision dated April 14, 2011, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant argues that the 15 employees who copied him on the congratulatory emails despite receiving his email protesting the Acting Director's original email were retaliating against him and harassing him because of his religious faith and beliefs. Complainant claimed that the barrage of emails "affected his psychological well-being in the office." ...
No religious harassment, the Commission concluded, and rightly so. I've argued that the current state of hostile environment harassment law is too broad, but it's not that ridiculously broad. Hint: If you publicly complain about a colleague's celebration, and a bunch of people respond by conspicuously congratulating the colleague, that's disagreement — it's not harassment.
Debate with Maggie Gallagher, Round 467
This time we were debating a proposed amendment to the Minnesota state constitution banning same-sex marriages, although the focus was on the merits of same-sex marriage itself. The debate was held at the University of St. Thomas Law School in Minneapolis and was hosted by the Terence J. Murphy Institute for Catholic Thought, Law and Public Policy. You can view the video here.
Diversity and Homogeneity
A commenter writes:
If law schools care so much about diversity, then why do they encourage segregated student groups?
Law schools should cut all funding to identity groups, except where that identity is directly related to law. Want to hang out with your black friends and discuss black issues? Do it on your own dime. Want to hang out with your Christian friends and discuss being Christian? Cool, but you have to pay for your own pizza. Want to get together with people who like environmental law and talk about environmental law, craft beer and organic, free range pizza for all
This argument seems to be something of a straw man. Law schools argue that they care about diversity, both in the sense of having students be exposed to the views and experiences of people of various religious groups, sexual orientations, and so on, and in the sense of teaching future lawyers to get along well with people from other groups. Sometimes this is a cover for simply wanting to get more students of particular races (chiefly blacks and Hispanics) in the school, for the sake of some sort of racial proportionality. But often it is a sincere and plausible view of what is helpful to students' education. (I disagree with some ways of accomplishing this, such as by giving students preferences based on race, but that's a different matter.)
But it hardly follows, it seems to me, that diversity should be the only goal, and that law schools view it as the only goal. There are also plausible arguments that students' education can be enhanced by sometimes being around other students who share the students' background and interests that often stem from that background. Black students who, rightly or wrongly, feel isolated in some measure from classmates because of their race could find it useful to spend some time around black classmates; and being together with other black classmates can help them think about legal questions that turn to be of special interest to many blacks (though not all blacks and not necessarily just blacks). Devoutly Christian students who wonder how they can incorporate their religious convictions into their future legal work — for instance, how they can reconcile their duties to clients with duties to God — could find it helpful to spend some time around Christian classmates.
Indeed, if you set aside ideological battles and look at the lives of reasonable ordinary people, I think you'll see this mix of a desire for diversity and homogeneity. A Christian or Jew might both deliberately expose himself to people of all religions — since he knows he has to learn to work well with them — and want to spend some time talking to people who share his own religion. A woman might have many male friends, and value the perspective that such friendships can provide, but might also want a girls' night out on occasion. A person might love being an American, and deliberately avoid locking himself in a, say, Korean-American social circle, might nonetheless find value in occasionally focusing on the Korean part of his identity, and spending time with those who share that identity. These are quite reasonable attitudes to take towards enriching one's own personal life education. They seem to be reasonable attitudes to take towards enriching one's students' education.
Now one might argue that, even if this is reasonable, it's something that universities shouldn't do. And I think that at some point that's probably right; I'm skeptical, for instance, of race-themed university housing, partly because it's likely to err too much in the direction of self-segregation. But I don't think that having student groups (which get a very modest amount of university funding) that focus on particular interest areas and identities is likely to be excessively segregating. And whether or not I'm right on this empirical question of educational effectiveness, I don't think that this question can be answered merely by asserting that universities' "car[ing] so much about diversity" means that universities may never support groups that are homogeneous.
More broadly — and at the risk of sounding banal — I think this is a special case of the danger of assuming that one principle should be extended to its logical extreme, or that people who endorse that principle are obligated to take it to its logical extreme. Liberty is very important, but social survival requires a mix of liberty and community, and friends of liberty need not feel obligated to resist all communitarian constraints on liberty. (Consider, for instance, our duty to serve as jurors, or to testify when subpoenaed.) Equality of men and women is very important, but it's not the only important thing, and supporters of such equality need not support it in all aspects. (Consider, for instance, the exclusion of women from many combat roles, and the existence of women-only sports teams, two policies that strike me as at least plausible, even to someone who generally supports sex equality.) And an institution that supports diversity may likewise think that sometimes some enclaves of homogeneity are nonetheless valuable and worth fostering. That a little bit of something is good, or even that a lot of it is good, doesn't mean that more is always better.
May Judges — Elected in Partisan Elections — Chair Political Caucuses?
This question is part of the general matter of the First Amendment rights of elected judges who are required to be political and yet expected to be in certain ways apolitical; In re Young (N.Y. Comm'n on Judicial Conduct Oct. 7, 2011) has a long discussion in a concurrence that says New York's elected trial courts judges do have a First Amendment right to engage in such political activity, and a brief statement in the majority opinion condemning such behavior.
Antidiscrimination Policies and Student Groups
A commenter to another post writes, pointing to what he sees as an improper double standard:
Just like there is allowed to be a Black Law Students Association at UCLA that doesn't admit white students, but there's not allowed to be a Christian Law Students Association that doesn't admit non-Christians.
I'm happy to acknowledge there are double standards out there. But my sense is that at UCLA — and at most other schools — the university policies formally prohibit discrimination based on race, religion, and so on by all groups. (That's what the UCLA School of Law policy says, for instance.) And if a violation is called to the university's attention, my sense is that the group would be required to remove any discriminatory provisions, regardless of whether they were the black students' group or the Christian students' group.
This having been said, I suspect both the Black Law Students Association and the Christian Law Students Association could and do maintain their racial and religious identities, simply because most students don't take the time to join groups in which they aren't terribly interested, and where they suspect they won't be wanted. It might well be that some BLSA groups include some members who aren't black, but I highly doubt that there is more than a smattering of such students in any group. And if there was a sense from fellow members that such students weren't wanted — even expressed subtly and indirectly — they'd be pretty likely to leave, even if the group did not forbid their presence.
In theory, one could imagine hostile students swamping the group in order to take it over; but my sense is that this is a vanishingly rare event. There's just very little payoff compared to the time and effort that the intruders would have to exert, and the possibility of social sanctions from other students (including people who aren't members of the group). This doesn't mean that the broad antidiscrimination policies for student groups are necessarily a good idea, only that they are in practice much more likely to be symbolic than practical.
So if you want to look for double standards in this field, I think you can find them in many contexts — but I'm not sure that the enforcement of student group antidiscrimination policies would be such a context.
Anti-Gay Statements About Fellow Building Resident = Liability for "Hostile Housing Environment Harassment"
That's what seems to be the holding of Gilbert v. 7355 South Shore Condominium Ass'n & Shelley Norton (Chi. Com. Hum. Rel's July 20, 2011), leading to damages of $2100, fines of $1200, and "reasonable attorney fees and associated costs," which I suspect are likely to be in the tens of thousands of dollars. The statements were said by a condo association manager about a condo owner, but as I'll note below the logic of this case would likewise apply to tenants speaking about another tenant.
The case is complex, and involves unsuccessful claims of sexual orientation discrimination and race discrimination. (The plaintiff claimed various forms of discriminatory treatment — including eviction — by the defendant, but the commission held against the plaintiff, because it found that the plaintiff would have been subject to the same treatment even without regard to the defendant's bias.) But here's what seems to be the heart of the harassment claim, which the commission did accept (emphasis added):
[Vernita] Gray has provided ample direct evidence of Respondents' discriminatory animus and creation of a hostile housing environment for Gray based on her sexual orientation. This included: Gray's testimony that in March 2000, Norton told her that she would not turn the building into a Halsted Street; Butler's testimony that Norton stated in June 2000 in relation to Gray that she was tired of this "gay ass shit"; Shields' testimony that within the first couple of months of moving in, Norton told her that the walls were thin and intimate conduct could be heard, that she was not happy with Gray moving in because Gray did not respect the building's culture, and that she did not want lesbian conduct in the building; and McMikel's testimony that within a few months after she moved in during February 2003, Norton spoke of Gray and Gilbert being gay and of not wanting the gay lifestyle in the building....
[Commission] Reg. 420.175(b) ... provides: "Slurs and other verbal or physical conduct relating to an individual's membership in a Protected Class... constitutes harassment when the conduct: (i) has the purpose or effect of creating an intimidating, hostile or offensive housing environment; (ii) has the purpose or effect of unreasonably interfering with an individual's housing; or (iii) otherwise adversely affects an individual's housing opportunity."
As recommended by the hearing officer, the Commission finds that Norton's negative and derogatory comments about Gray's sexual orientation had the purpose and effect of creating a hostile and offensive housing environment for Gray which interfered with her protected housing rights and violated the Chicago Fair Housing Ordinance.
Respondents object to this finding, arguing that in only one instance were the derogatory comments directed at Gray. Respondents' objection is based on a narrow view of what constitutes hostile environment harassment that is not supported by the law. Certainly derogatory comments about Gray's sexual orientation made to other persons (especially when they are other residents of the building) created a hostile housing environment just as derogatory comments made directly to Gray did.
Norton was the president of the condo association board, and may have been a paid employee. But since hostile housing environment harassment law has developed by analogy to hostile work environment harassment law, which holds employers liable for the speech of their employees, a condo association or landlord would likewise be liable for the speech of their members or tenants. It's possible that a condo association might be absolved of liability on the theory that they can't control their members' speech, since presumably offensive speech about neighbors isn't a ground for kicking someone out of a condo that he owns. But a landlord is indeed potentially liable for the speech of its tenants, since it could evict them, see Neudecker v. Boisclair Corp. (8th Cir. 2003).
And this decision illustrates that the possible liability isn't just limited to insulting statements to a particular person, but also statements about that person. To repeat a hypothetical I posed earlier, say that some tenants are very hostile to fundamentalist Christianity. They often condemn fundamentalist Christians (referring to them as "Jesus freaks") in conversations in common areas, such as around the swimming pool, in the laundry room, or in hallways. (Such conversations are overheard by fundamentalist Christian tenants every couple of weeks, or overheard by third parties who then tell the Christian tenants about them.)
They sometimes wear T-shirts that contain anti-fundamentalist-Christian messages, and put bumper stickers with anti-fundamentalist-Christian messages on the cars that they park in the building's garage. The landlord also allows all tenants to put up posters on their own doors (so long as they don't physically damage the door); the anti-fundamentalist tenants have put up some posters that ridicule fundamentalist Christianity. They do not make such statements directly to other fundamentalist Christian tenants, but they're well aware that fundamentalist Christian tenants might see the posters and hear the statements. But the anti-fundamentalist tenants don't care: They want to express their views, and don't care that others might be offended.
The fundamentalist Christian tenants go to the landlord, and say: The other tenants' speech has created an environment that's hostile to us based on our religion (and that a reasonable person would find hostile based on religion). Tell the other tenants that they must stop this, and that you'll evict them if they don't stop. The landlord would then have a legal obligation — enforceable by the threat of a substantial damages verdict — to stop the anti-fundamentalist tenants from expressing their offensive viewpoints. And, as the Gilbert decision shows, the tenant-speakers would also be personally liable for damages and fines as well.
The same hypothetical could be given with regard to anti-extremist-Muslim views and anti-gay views, among others. And since the Chicago fair housing ordinance covers discrimination and therefore harassment based on "source of income," "military discharge status," "marital status," and "parental status" (all defined quite broadly), there could be liability for statements that express hostility to welfare recipients, to lawyers or bankers, to veterans, to dishonorably discharged soldiers, to unwed parents, and more. And, as I noted, that's true even if the statements aren't personal face-to-face insults, but simply said about a neighbor to other neighbors — or (borrowing from hostile work environment harassment law) the group to which the neighbor belongs.
For more on hostile environment harassment law, including hostile work environment harassment law, see here. For hostile public accommodations law, which — like hostile housing environment law — applies similar speech restrictions outside the plaintiff's workplace, and to places such as restaurants, parks, and the like, see here and here.
October 31, 2011
The Real Reason for Loopholes
Not everyone was convinced by my contention in yesterday's post that the mismatch theory of loopholes is wrong, to put it mildly. Their reservations are understandable. More detail is needed to make the claim convincing, more detail than a blog post allows.
More importantly, however, it is hard to be convinced of the wrongness of a plausible theory, like the mismatch theory, whatever its defects, if one doesn't have a plausible alternative. In this post, I will try to offer you one.
It has often been suggested that the prohibition on sex discrimination was added to the Civil Rights Act of 1964 as a devious attempt to kill the Act. Supposedly its sponsors calculated that there would be a majority to support the amendment regarding sex discrimination, but that once the amended bill went up for a vote, a majority would find it too repellent and the entire Civil Rights Act would go down in flames.
Whether this is what really happened is controversial. But what is not controversial is that killer amendments are often a successful strategy for derailing a bill that is about to be passed. There is something deeply paradoxical about this. If a majority of legislators support the amendment, why would a majority then not support the amended bill?
What we have here is a particularly interesting version of Condorcet's voting paradox, first discovered in the late 18th century (actually by a colleague of Condorcet's, Borda, and then misattributed to the former), which says that it will sometimes happen that as between three alternatives, a majority might support A over B, a majority might support B over C, but that it will then not necessarily be the case that a majority will also support A over C. The very reverse might happen: A majority might support C over A. Not because anyone has changed his mind about anything, but just because majority voting can do funny things. (For a simple demonstration, just look up "voting paradox" in Wikipedia.)
The killer amendment is an illustration of this. When it works, it works because three things are true at the same time, though it is hard to believe that they could be: (1) A majority supports a proposed new bill over the status quo. (2)A majority supports the amended proposed bill over the unamended proposed bill. And (3) A majority supports the status quo over the amended new bill.
Which alternative comes out on top, thus depends on the sequence with which votes are taken. If the process starts by having legislators compare the proposed bill with the amended bill, and voting on it, and concludes by having them compare the amended bill with the status quo, and voting on it, then the status quo will prevail. Under the usual rules of parliamentary procedure, the legislators will never get an opportunity to compare the status quo with the unamended bill, and vote on that.
Modern voting theory, starting with Arrow's famous impossibility theorem, established that the possibility of such manipulative killer amendments afflicts all half-way plausible voting systems.
What makes the killer amendment interesting in the context of thinking about loopholes is that it is one more counterexample to the mismatch theory of loopholes I discussed yesterday. Killer amendments smack of loophole exploitation but they clearly are not to be explained by the mismatch theory. The killer amendment strategy obviously doesn't involve exploiting the divergence between the spirit and the letter of the pertinent voting rules.
But the relevance of killer amendments to loopholes goes way beyond this. That's because it was understood from early on that the insights of voting theory are relevant not merely to voting, but to decision-making more generally, even if it is individual rather than collective decision-making.
Most individual decision-making is of the type decision theorists like to call multi-criterial. What decision theorists soon realized, after voting theory came on the scene, is that when you are synthesizing a multiplicity of criteria into a final decision, you are doing something very similar to synthesizing the preferences of a multiplicity of voters into a final selection among various alternatives.
To be painfully explicit about it, suppose you are trying to decide which of several cars you should buy. You rank the cars along a variety of relevant dimensions: price, safety, looks, and so forth. In the end, you have to somehow aggregate these various rankings into a master ranking that dictates which car you will actually buy. By whatever means you do this (and whether you do it informally and through your gut, or by actually using some kind of algorithm), what you are doing is going to be closely analogous to that of aggregating the preferences of several voters into a master ranking in the way that voting rules usually do. Your decision making mechanism is therefore subject to a version of the various paradoxes of voting theory, such as Condorcet's voting paradox, Arrow's impossibility theorem and so on.
What several legal scholars came to realize—chief among them Bruce Chapman and Matthew Spitzer—is that this makes for an interesting and hitherto unexplored connection between voting theory and the law. Legal decision making can be thought of as a kind of multi-criterial decision-making, and therefore the various paradoxes of voting theory might be helpful in explaining certain paradoxes of legal decision-making.
What is most interesting for my purposes here is that one can use this perspective to explain loopholes, in a way that is very different and more satisfactory than the mismatch theory. If we think of legal doctrines as being structurally very similar to voting rules, then should they not be vulnerable in some way to analogues to the killer amendment?
And so they are. Loopholes it turns out are the exact analogue of the killer amendment in the context of multi-criterial decision-making. Looked at in the right sort of way one can think of each of the tricks I described in yesterday's post as being a kind of killer amendment. And just as all voting rules are inevitably vulnerable to killer amendments, all laws, so long as they involve the application of a multiplicity of criteria, which is true of virtually all laws, are bound to be vulnerable to loophole exploitation. Wishing loopholes away is a bit like wanting every child of Lake Wobegon to be above average. As a matter of logic, it can't be done.
Perhaps the most important implication this has for lawyers is that they really need not feel bad about exploiting loopholes, no worse anyway than a parliamentarian who makes use of a killer amendment.
But perhaps you in fact think the parliamentarian ought to feel bad about using a killer amendment? Once you think about the matter a bit more, it is hard to see that what the parliamentarian did as the least bit objectionable. To be sure, he did derail a bill that had majority support. But did the bill he derailed in fact deserve to pass? To be sure, a majority supports it as against the status quo. But there is another bill, the amended bill, that yet another majority would prefer, and then there is another majority that would prefer the status quo over that one. Given that, what makes the proposed bill anymore expressive of the legislature's "true" wishes than these other alternatives?
If you are interested in seeing the analogy between loopholes and killer amendments shown to be an exact rather than merely a loose analogy, and in understanding why Arrow's famous impossibility theorem actually guarantees the ubiquity of loopholes in law, you will find an explanation of it in Why the Law Is So Perverse.
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