Taking Children from their Parents: The General Issue

Some years ago I heard a talk by someone who, as a law student, had been involved in providing free legal services to poor people in his community. Much of what he had done involved helping people deal with the welfare bureaucracy, including the parts of it responsible for removing children from their parents. I asked him whether, on net, he thought giving the state the power to remove children from parents judged unsuitable was a good thing, whether on average it helped or hurt children. His response was that he could not judge its effect in general, but in the particular community where he had worked—I think it was Ithaca, New York, where Cornell Law School is located—it hurt them.

I was reminded of this by the FLDS case. In earlier posts I have discussed the evidence on what happened and some conjectures as to why. One conclusion I think clear is that the people controlling the Texas Department of Family and Protective Services could not have acted as they did if they cared very much about the welfare of children.

Assume, as we probably should, that they started out accepting the view of the FLDS offered by their unnamed confidential informant--presumably someone who left the sect a decade or two back and had never been inside the Texas ranch. On that assumption, they were legitimately concerned that teenaged girls were being pressured into illegal “marriages” with older men. They could have entirely eliminated that risk by seizing the teenaged girls—there were 27 from 14-17—holding them for long enough to make sure they were not being pressured into such marriages and make it clear to them that if anyone tried to pressure them into such marriages in the future they were free to refuse, and then turning them loose. Instead they seized more than four hundred children, many of them young, separated them by force from their parents, and are still holding them. Unless they are utterly incompetent, they knew that doing that would inflict enormous costs on those children. Obviously they didn’t care.

Within a week or two after the raid, the authorities knew that the story they had been sold about the FLDS was inconsistent with the facts, the striking lack of pregnant minors and the relatively small number—20 out of a total population of a thousand or two—of women who had born children before they were adults. They also knew that the phone call that triggered the raid was a hoax. Instead of returning the children to their parents, as any decent human being who cared about the welfare of the children would have done, the Department embarked on a deliberately campaign of misinformation, inflating the number of minors who were pregnant or had born children from five to 31 by classifying adult mothers as minors. Being unwilling to admit mistakes is a natural human tendency, but being willing to keep hundred of children from their parents in order to avoid, or at least postpone, the admission is not the behavior of people who actually care about the children in question.

The Texas affair is not the first, or the largest, example of this pattern. Decades ago, the Canadian government took a much larger number of children away from their parents on equally flimsy grounds, shipped them across the country, forbade them from speaking their own language. The Australian government was guilty of a similar outrage. In both of those cases, as, I suspect, in the Texas case, the real purpose was not to protect children from physical abuse but to remove them from a culture the authorities disapproved of—First Nation in Canada, aboriginal in Australia, polygamist in Texas. Somewhere in the world there are probably a few parents who care less about the welfare of their own children than the people responsible for those cases of mass child abuse cared about the welfare of other people's children, but I have never met any of them.

Which raises the general question: Would it be better if governments had no power to remove children from their parents? It is easy to imagine, probably to point out, particular cases where such removal is justified. But in order to defend giving government the power to do something, you must argue not only that it can sometimes do good but that, on net, it can be expected to do more good than harm. Judging by what we have seen in Texas over the past two months, that is a hard argument to make.

This leads to a second question: Are there alternative way of protecting children from abusive parents? One obvious answer is that even if the state cannot take children away from their parents, it can still punish parents for the crime of killing or injuring their children. In my first book, I suggested a different approach: shifting power away from parents not to the state but to the children. Weaken or eliminate the legal rules that make it possible for parents to keep control over children, especially older children, who want to leave. Make it easier for adults who care about the risk of child abuse to offer refuge to runaways.

One can, of course, imagine possible bad outcomes from that solution, as from any solution for real world problems. But it seems to me now, as it did thirty-some years ago when I wrote that chapter, that it is a better solution than giving the power to the state. The person most likely to care about my welfare is me. The people next most likely are my parents. State officials who make their living out of taking control over other people’s children are a very distant third.

What did CPS think it was doing?

The FLDS case is not yet over; the Child Protective Service has appealed the court decision to the Supreme Court. Nonetheless, I think it's worth looking back at the history of the case in order to figure out what CPS thought it was doing and why it thought it could get away with actions that a court has now found to be totally without legal justification. Two possibilities occur to me.

The first is that the CPS knew its actions were unjustified but was relying on the prejudice of the population and the court system to get away with them. On this reading the real objective was to drive the FLDS out of Texas and/or to destroy it. That is consistent with at least some of the evidence. It seems clear that, about three years ago, a local legislator introduced a package of bills to the legislature, some of which passed, intended to target the FLDS. They included an increase in the legal age of marriage with parental consent from fourteen to sixteen and raising polygamy to a felony. It is even possible, on this reading, that the CPS expected to eventually lose in the courts but believed, perhaps correctly, that they could impose large enough costs on the FLDS families in the process to persuade them to go somewhere else.

It is worth noting that the only justification offered by the CPS for seizing male children was that they were being brought up to be child abusers—which is to say, being brought up in their parents' religion. It sounds from some news stories as though the implicit deal being offered to parents was that if they would accept suitable psychological counseling, they would eventually get their children back. Combine those two and it looks as though the idea was to force people to renounce their religion, holding their children hostage until they did.

The alternative interpretation is that the CPS believed its own story. Based on the picture of the FLDS painted by anti-polygamy activists, primarily ex-members, they may have expected to find lots of pregnant minors, some of them thirteen or fourteen, and lots more minors with children. Having found them, they would then have sufficient legal justification for a good deal of what they wanted to do and sufficient public support for all of it. And if the story they believed was true, they were in fact doing their job, protecting minors from abuse, even if they were stretching the law a little to do it.

When they actually got control over the children, they discovered that the data were strikingly inconsistent with the theory. Apparently none of the minors were pregnant and only five had had children--a rate not far from the average teen pregnancy rate for the state. The CPS officials were reluctant to either recognize that they had made a mistake or admit it, so tried in various ways to fudge up evidence to support their actions. So far as public opinion was concerned, they mostly succeeded, with the help of major media too biased to do a competent job of looking at and reporting the facts.

In their defense, they were not the only people to believe the story. I believed it too. While I might have suspected some exaggeration, I assumed that the account given by defectors from the sect was substantially accurate. If I had been asked to predict the number of pregnant minors on the ranch, my guess would have been substantially above zero.

The evidence now available suggests that the story was not true, or at least not true of this community of the FLDS. Either things have changed over time, or the Texas FLDS community was different from the Colorado City community, or the FLDS defectors were giving a false and biased report from the beginning.

All of those alternatives are possible. What is not possible is that, in a community functioning as the FLDS was said to be functioning, where girls just past puberty were routinely married to much older men and forced to have sex with them and bear their children, no minor was pregnant and fewer than a fifth of the minor women aged 14-17 had ever had children. Yet those, apparently, are the facts of the Texas case.

Wanted: An Open Source Electric Blue Book

In an earlier post I suggested a low cost way of making it possible for students to take exams on computers. An alternative suggested in the comments was to have students boot their laptops under a stripped down version of Linux configured to make it impossible for the student to access anything on his computer other than the exam taking software. That would provide a very low cost alternative to the commercial software now used for the purpose.

This looks like an obvious idea for an open source project. I am happy to contribute the name: Electric Blue Book. If anyone is interested, I can probably dig up my old notes on how a test taking program might be designed to make things easier for both the students taking the test and the teacher grading it. I have no experience with the sort of programming that would be involved, however, so somebody else would have to take charge of the project.

Ideally, it would make it possible to put the OS and the program on either a flash disk or a CD. A laptop booted off of it would provide access only to the test taking program. The file representing the test would be saved to the flash disk, if there was one, or to the hard disk of the computer in some easily identifiable form, to be transferred to the teacher's computer when the exam ended. Ideally there would be versions for Mac, Windows and Linux.

Volunteers?

FLDS and Arithmetic: Part II

In an earlier post, I tried to show that claims by the Texas authorities were internally inconsistent. We now know that those claims were false—admitted to be false by the same people who made them. There isn't enough information yet to work out the details of the true story with confidence, but there is enough to make at least a first try. The relevant facts are:

Some weeks ago, the Child Protective Service announced an increase in the number of minors in their custody and explained it as due to their having concluded that some of the people they had thought were adults were actually minors; there was no explanation of the basis for that conclusion. My memory is that the number given was in the twenties; one webbed source says 25 but I have not yet checked back over the old news stories to be sure.

A few days later, they announced that out of 53 girls aged 14-17 in their custody, 31 either were pregnant or were mothers. Some versions of the story included a separate number for the ones who were pregnant--two. CNN gave that number in its initial story then removed it without, so far as I could see, any explanation. On the basis of those figures, I calculated that the number pregnant was far below what the average would have had to be for that many to be mothers, and concluded that some of the figures were probably bogus.

At some point thereafter, the CPS announced that two of the 31 were sufficiently pregnant so that they would shortly be having their babies in CPS custody. The babies were born. The CPS then announced that it had discovered that both of the "minors" were in fact adults, one of them 22. According to various news stories, the latter had a birth certificate which she claimed to have shown the authorities early on. That claim is consistent with an earlier news story to the effect that the CPS was refusing to accept birth certificates as evidence of age. It was on the basis of that that I concluded that the CPS had to be deliberately lying, since they were making statements about the ages of women in their custody without having any way of knowing how old the women actually were. At that point their count of pregnant minors appeared to be down to zero.

The news stories also reported that 24 more of the women who were supposed to be 14-17 claimed to be adults. A later story reported that the CPS had conceded that at least 15 of its 31 "minor mothers or pregnant" were in fact adults. My guess is that that included the two who had had their babies.

Finally, we have one more fact. The Texas appeals court, in finding the seizure of the children to be entirely unjustified, reported that the CPS had actually identified five women who were or had been pregnant and were asserted to be minors--presumably that meant "still asserted."

Now for a little arithmetic.

The CPS started out with 5 young women aged 14-17 who they believed either were mothers or were pregnant—the five counted by the appeals court. That was not a very impressive number if they wanted to justify taking 400+ children away from their parents. So they selected 26 of the youngest looking mothers among the adults—readily available to them since the mothers were trying to stay close to their children—and reclassified them as minors, getting a total of 31.

That fits the total of 26 women who claim to be adults—15 of whom so far the CPS has admitted are adults. It's one higher than the figure I saw for the number reclassified as adults.

One possibility is that they reclassified 25 adults and, in addition, one of the women they initially thought was a minor was in fact an adult. That gets the number of "pregnant or mothers" down to 30, however.

We might eliminate that anomaly with additional detail I have not yet mentioned—a 14 year old girl who apparently was included in the count of "pregnant or mothers" but who the CPS, according to a news story, has now conceded is neither. If they initially misidentified her—perhaps someone thought she looked pregnant, or perhaps she had refused to take a pregnancy exam—that would give them a starting number of six, one a mistake, bringing the total back up to 31.

The numbers fit together pretty well, and are at least consistent with my earlier conjecture, that the CPS vastly exaggerated the number of minors who had been pregnant in order to justify its actions. What else might the number tell us?

If my calculations are correct, there were actually about 27 (53-26) women age 14-17 among those seized in the raid. Five of them had at some point had children, none were pregnant. According to the appeals court, four of them are 17 (or were when seized), 1 sixteen. They were alleged to have become pregnant at age 15 or 16.

According to one webbed source, the rate of teen birth for girls aged 15-19, was about 10% in Texas in 2000. Assume that the same figure holds for ages 14-17. If the 27 young women were evenly distributed by age, then on average each had spent two years in the 14-17 year range. If their pregnancy rate was average for Texas, about 20% of them should have gotten pregnant, for a total of of about five and a half--slightly more than actually did.

The calculation is probably a bit high, since I have assumed that pregnancy rates were constant over the range 14-19 and they almost certainly increase with age. Also, I've seen a lower figure for the pregnancy rate from another source, possibly for a different year. But my numbers are enough to suggest that the rate of teen pregnancies in the FLDS population was not strikingly out of line with that for Texas in general.

Finally, consider the question of the ratio of young men to young women. Various people commenting on my posts argued that the teen women greatly outnumbered the teen men, providing evidence that boys were being driven out in order to leave more wives for the older men. That ratio was calculated, however, using the CPS claim about how many young women there were aged 14-17, a claim we now know was false. If we accept the estimates I have just offered, the real number was about half as large--27 rather than 53. I haven't seen any figures on the number of males age 14-17 in CPS custody to compare with that.

Enterprising Lawyer Needed

As I point out in the previous post, the recent finding of a Texas appeals court shows the position of the Texas authorities responsible for separating more than four hundred children from their parents to be even more indefensible than I have been arguing. In particular, the claim that out of 53 women 14-17 in their custody 31 were either pregnant or mothers was a lie on a grand scale. According to the court, five were.

It now seems clear that the Child Protective Services were guilty of at least:

1. Restraining women whom they knew to be adults under the pretense that they were minors--including a pregnant 22 year old married woman with a birth certificate as proof of age.

2. Deliberately defaming particular women, for instance by claiming that that one was a pregnant minor when they had no evidence that she was a minor and a birth certificate showing she was an adult.

3. Deliberately defaming the FLDS with a set of claims for none of which they have any evidence beyond allegations and some of which they knew to be wildly false--for instance the 31 minors now reduced to five.

I suspect that further investigation, of the sort that could result from a tort suit, would turn up additional damning evidence, in particular that the reclassification of a group of women from adults to minors was a deliberate attempt to inflate the number of minors they could claim had been mothers or were pregnant.

And all this is aside from their real crime--separating hundred of children from their mothers with not a scrap of evidence that those children were in any immediate danger (see the court statement). That, I suspect, is one for which there is unfortunately no legal recourse.

On the other hand ... . The CPS, as an agency of the state of Texas, is protected from most tort liability by sovereign immunity. According to one commenter on of my earlier posts, child protective service generally have even greater immunity than other state agencies.

So the question is whether an enterprising lawyer could get past whatever sorts of immunity they have by demonstrating that their torts were deliberate and malicious, perhaps even that they were a deliberate attempt to use state power to suppress an unpopular religion in violation of the First Amendment to the Constitution. It's hard to believe that a state can use immunity to shield actions by its agents that are deliberately unconstitutional. But then, I'm not a lawyer, and the law does allow for the possibility of legal wrongs for which there is no legal remedy.

Any volunteers?

-----------------------
[Added later]

A commenter points me at an informative (but not unbiased) page on legal rights of parents and children in dealing with state child protective agencies. Googling turns up a discussion of 42 U.S.C. 1983 from which it seems clear that sovereign immunity does not provide protection for state agents who violate federal law. My inexpert opinion from this is that the FLDS parents, and the FLDS adults who were put under CPS control on the pretence that they were minors, do indeed have a potential tort claim against those responsible.

Sanity in Texas

CNN has just reported that a Texas appeals court has found that the seizure of the FLDS children was unjustified, and ordered the lower court that approved it to reverse its ruling.

"The existence of the FLDS belief system as described by the department's witnesses, by itself, does not put children of FLDS parents in physical danger," the three-judge panel said.

Over the course of the controversy, I have concluded that CNN was consistently biased against the FLDS in its presentation of the evidence. As some support for that conclusion, I note that:

1. The story appears to have been the CNN's featured story only very briefly. They gave a lot more attention to unsupported allegations in the past on the other side.

2. The story treats the question of who made the original phone calls as if it were still unresolved, mentioning Rozita Swinton but leaving out much of the evidence showing that she made the calls.

3. The story does not mention that, according to the court, there were only five minor women who had been pregnant among those seized. CNN had, of course, earlier reported as fact the CPS claim that there were 31.

Anyone interested in further facts is urged to read the actual court ruling, which is very much stronger than the CNN story implies. Among points of interest:

The Child Protective Services claimed that, out of 52 women 14-17, 31 were either pregnant or had been mothers. According to the court, however:

"five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults."

That supports my conjecture that the CPS deliberately reclassified adults as minors in order to increase the number it could claim were or had been pregnant.

"There was no evidence regarding the marital status of these girls when they became pregnant."

It's worth noting that marriage at sixteen is legal in Texas, and that until about three years ago marriage at fourteen was legal. One of the five minors alleged to have become pregnant is sixteen, the other four are seventeen, all are alleged to have become pregnant at the age of fifteen or sixteen. So one of them could have legally married at fourteen, gotten pregnant at fifteen, and currently be seventeen and so still a minor. And, of course, all of them could have been legally married at sixteen, pregnant at sixteen, and still minors now.

Or in other words, the CPS does not seem to have introduced even a scrap of evidence to show that any minor woman among those they seized was the victim of anything illegal.

The More Things Change ...

Almost forty years ago, a group of Chicago police officers came at night to an apartment occupied by members of the Black Panther party, opened fire, and killed two people. Despite claims to the contrary by the police, there was never any evidence that anyone inside the apartment had fired at the police first. I was living in Chicago at the time, and commented to an acquaintance that while I could certainly believe the police were lying, I could equally well believe the Panthers were.

She replied by pointing out that the Panthers were offering to let anyone who wanted see the apartment. I went, and learned something interesting—when a bullet goes through a wall, you can see which way it was going by the direction the splinters point. All the shots were incoming.

[One news story I found while checking this reported that it was eventually determined that there had been one outgoing shot—and about ninety incoming. If so, I didn't spot it.]

One of the people responsible for the raid was tried, not for conspiracy to commit murder, which is what he was probably guilty of, but for lying about it afterwards. He was acquitted. The city, state, and county, however, ended up paying a substantial amount to the survivors in settlement of their civil claim. In my first book, I told the story as an illustration of one advantage of privately prosecuted civil law over publicly prosecuted criminal law. As I put it in a later book, if the crown controls prosecution, the King's friends can get away with murder. And, in this case, did.

Today's CNN brings a similar story, this one involving an attack that killed a 92 year old Atlanta woman.

"An Atlanta police officer has been sentenced to 4 years and six months in prison for lying to investigators after a drug raid ended in the death of a 92-year-old woman."

At least this time someone got convicted of something. One could view that, plus the fact that this incident looks less like deliberate murder and more like criminal incompetence than the attack on the Black Panthers, as evidence that things have improved a little. But I'm reluctant to judge an overall trend by such a small sample.

A Simple Proposal to Make Exam Grading Easier

For most of the year, being a professor is better than working for a living. The exception is when I am grading exams. Part of the reason is that I find out how much worse a job I have done than I thought I had—how many students don't understand things I thought I had taught. Part is the time and trouble of evaluating their answers.

And part is trying to read their handwriting. That is the part that can be solved.

Nowadays, most students have computers and are used to using them. Twenty-some years ago I came up with an idea for software to let students take exams on computers. The project, which never got very far, was going to be called Electric Bluebook. Many years later, someone else did it; the law school where I do most of my teaching uses their software to let students take exams on their own laptops

When I was designing Electric Bluebook I was mostly concerned with ways in which the computer could make taking and grading exams easier. My version would have let students keep track of which questions were unanaswered, which finished, which they wanted to go over again if there was time. At the professor's end, the software could show the professor all answers to question 1 in random order, thus eliminating the problem of shuffling bluebooks or letting a bad answer on one question bias the grading of another.

The software that was actually written had a rather different set of priorities. It was designed to solve one and only one problem: cheating. The programmers faced, and I gather solved, the difficult problem of how to let a student use their software while locking him out of everything else on his computer—which might include class notes, answers to old exams, even a downloaded textbook. I liked my design better, but I understand the depressing reasons for theirs.

Currently I am grading exams from a course I volunteered to teach at a different and poorer school, one which does not have such software, with the result that all exams are handwritten. It occurred to me that, as the price of computers falls, one solution would be for the school to have a bunch of cheap laptops dedicated to the sole purpose of taking exams on, wiped clean of everything else after each use.

Then it occurred to me that there is a much cheaper solution, a readily available source of free computers for the purpose.

Match up two classes that take their exams at the same time. Tell the students that if they bring a laptop, carefully labeled with their name, they will probably be able to take their exam on a laptop--but not theirs. Advise them to password protect anything on their laptop they want to keep private. Before the exam begins, randomly trade laptops between the two classes. Put the exam for each class on all laptops used in that class. When the exam is over, transfer the files representing the completed exams to the professor's computer and return all laptops to their owners.

One can imagine a variety of practical problems, but I think most of them have straightforward solutions. Students no longer have to scribble, professors are saved from eyestrain, and the only cost is a little time spent shuffling laptops.

Comments?

Amusing story of no social or political significance

Here.

Although one could take it as evidence of successful human cloning.

Can State Actors be Liable for Defamation?

In the course of the FLDS dispute, spokesmen for the Texas Authorities asserted that Louisa Bradshaw Jessop and Pamela Jeffs Jessop were pregnant minors. It appears that at the time that assertion was made, one of the two had presented a birth certificate showing her to be 22, the other had shown evidence she was 18. The state has now conceded that neither is a minor. So far as I can tell, the sole basis for claiming that they were was someone's guess at how young they looked.

That seems like a perfectly clear, open and shut case of deliberate defamation—making an injurious statement with reckless disregard of whether it was true. Does sovereign immunity protect people who make such statements if they are working for the state?

There is an interesting related factual question to which I do not yet know the answer. Shortly before releasing the claim that, out of 52 girls age 14-17, 31 were pregnant or had been mothers, the state authorities reclassified a group of 20+ women--I don't have an exact figure--as minors. I have seen no figures on how many of those were among the "mothers or pregnant" group. If all of them were, and if many are not minors, I think that would provide very strong evidence that the defamation was deliberate—that the state was choosing to lie about the age of those women in order to create bogus evidence against the FLDS.

About those pregnant FLDS minors ...

In an earlier post, I pointed out that the Texas authorities were being deliberately dishonest by making statements about how many girls of what age were pregnant or mothers while refusing to accept birth ceritificates as evidence of age. They have now conceded that both of the "minors" who gave birth while in state custody were actually adults. One of them was eighteen, the other twenty-two. An early report of the authorities' claims about supposed minors supposedly aged 14-17 included the assertion that two were pregnant. If so, the number is now down to zero.

Twenty-four more of the supposed minors claim to be adults. The CNN story I linked to, considering what might happen if those women are eliminated from the count of minors with children, concludes that there would be left:

"... about one-fifth of the girls that age found at the ranch -- substantially higher than the average rate of teen pregnancies in Texas but a far cry from 60 percent."

According to webbed figures from the Guttmacher Institute, about 6% of Texas girls aged 15-19 get pregnant each year. They don't give a figure for 14-17, which is the age range being claimed for the FLDS mothers, but the national figure for that age range is about 4% and Texas has one of the higher teen pregnancy rates so it might be 6%. The relevant figure for comparison is not, as CNN seems to imply, the number who get pregnant each year but the number who have ever been pregnant, which should be substantially higher. On the simplest assumption--that the pregnancy rate is constant and the age distribution of the FLDS girls is flat--that would be about 12%.

Having held them in Texas until they had their children on the unsupported, and now concededly false, claim that they were minors, the state is now claiming custody over their infants.

The question, to which someone who knows law better than I do may have an answer, is whether the victims of this abuse of legal process have any legal recourse. On the face of it, the state of Texas either deliberately or negligently violated the rights of both women, holding them prisoner without any legal justification for doing so.

What follows? I do not know. If I were a member of the FLDS, I would be looking for some way of getting the case out of the Texas courts and into federal court. One possibility would be to argue that Texas is deliberately attempting to suppress a religion, using fraudulent claims as an excuse, and is thus in violation of the First Amendment.

Equality Times Two

"West of the mountains nobody owes allegiance to anyone."

(from my Harald)

There are two senses in which people may believe in equality, one having to do with attitudes to people, one having to do with the distribution of income and other good things. The first can, I think, be illustrated with three examples: H.L. Mencken, my father, and the protagonist of my one published novel. All three are egalitarian in the first sense, none in the second.

In his published diary, Mencken mentions going to visit a friend who lived some distance from the railroad station. The friend sent his chauffeur to pick Mencken up. Mencken found that the (black) chauffeur, although uneducated, was an intelligent man, and had a very interesting conversation with him, finding out how the world looked from his point of view. On a second visit Mencken was looking forward to another conversation with the chauffeur. To his disappointment, there was a second guest, a white woman, and in her presence the chauffeur remained silent. Mencken was a famous, influential, and comfortably well off man. There is no hint in his account of the incident that he felt as though that made him superior to the chauffeur. What mattered was not race, income, education, or status but that the chauffeur was an intelligent person with something interesting to say.

In interactions with my father when I was growing up it was always clear that what mattered was who was right, who had the better argument, not who was older—status was simply irrelevant. Many years later I was shocked to hear an intelligent elderly man tell a child not to contradict his elders. From the point of view I had grown up in, the statement was not merely wrong, it was close to obscene.

The protagonist of my novel is an able, successful, famous man—from a society whose status hierarchy is very flat. He takes everyone he meets on the same level, treats a king, the grandson of an Emperor, and a farm boy more or less in the same way, allowing for the difference in their ages and a certain amount of prudence in dealing with the king.

All of this is egalitarianism—of a sort. But it says nothing at all about whether any of the people in question think incomes should be more equal, gender roles less well defined, or anything of the sort. It is an attitude towards other people, not a political or economic philosophy.

The connection with the other sort of egalitarianism comes, I think, from the belief that people don't see the world in the way I have described—a belief that is, of course, often correct. One of the motives for wanting a world that produces more nearly equal outcomes is the belief that your being richer than me makes you better than me, or at least that you will think so, hence that if incomes are not reasonably equal many people will be treated as inferiors.

My point is not that the motive is wrong. Inequalities of income can indeed lead to inequalities of status—although I suspect that people would find lots of other grounds for considering themselves better than other people even in a world where all incomes were equal. My point is rather that there is no necessary connection between being richer, or more famous, or better educated than someone else and thinking yourself his superior in any more fundamental sense. One can be a democrat in the first sense without being a Democrat in the second.

Or, of course, the other way around.

Best Comment Yet

Of all the comments on all the posts on my blog, I think my favorite so far is:

"If the point of the Democratic primary were simply to pick the most electable candidate, then maybe they should offer up a group of candidates and only let *non*-democrats vote in their primaries. :-)"

If you think about it, it makes perfect sense, provided that "Democrats" are defined as voters who consistently vote for the democratic candidate. Whoever they nominate will get the votes of the Democrats, so it doesn't matter, from the standpoint of electability, which candidate Democrats prefer. The important question is which Democratic candidate the non-Democrats are most willing to vote for.

All of which reminds me of the "yellow dog Democrat" story. From Wikipedia, quoting Irvin S. Cobb:

---------------

“the most devastating retort I ever did hear. It was delivered by Theodore Hallam, a battered-looking, hard-hitting, hard-drinking, little Irish lawyer, and an ex-member of Morgan's Rangers — and that for nearly half a century qualified a man for social and political distinction anywhere in the border South and particularly in Kentucky. Despite a high, strident voice, Hallam was perhaps the greatest natural orator in a state of natural orators and had a tongue pointed with a darting, instantaneous wit.”

“Hallam lived in Covington, where Goebel likewise lived, and as a comrade in war and an ally in peace of Colonel Sanford, the Conservative whom Goebel pistoled to death, he hated Goebel mightily. Having bolted when Goebel seized the gubernatorial nomination by craft and device — and at the last moment, by open violence — Hallam promptly took the stump against him and went about over the troubled commonwealth joyously sowing dragons' teeth and poison ivy.

The seceding wing of the party picked on Hallam to open its fight, and chose the town of Bowling Green as a fitting place for the firing of the first gun, Bowling Green being a town where the rebellion inside the ranks was widespread and vehement. But Goebel had his adherents there, too.

I could fairly smell trouble cooking on that simmering-hot August afternoon when Hallam rose up in the jammed courthouse to begin his speech. Hardly had he started when a local bravo, himself a most handy person in a rough-and-tumble argument, stood upon the seat of his chair, towering high above the heads of those about him.

"I allow I want to ask you a question!" he demanded in a tone like the roar of one of Bashan's bulls.

One-third of the crowd yelled: "Go ahead, Black jack!" The other two-thirds yelled: "Throw him out!" and a few enthusiastic spirits suggested the advisability of destroying the gentleman utterly, and started reaching for the armpit or the hip pocket, as the case might be. Despite the heat all hands were wearing their alpaca or their seersucker coats which, if you knew our sturdy yeomanry in those parlous days, was a bad sign.

With a wave of his hand Hallam stilled the tumult.

"Let it be understood now and hereafter, that this is to be no joint debate," he said in that high-pitched shrill voice of his. "My friends have arranged for the use of this building and I intend to be the only speaker. But it is a tenet of our faith that in a Democratic gathering no man who calls himself a Democrat shall be denied the right to be heard. If the gentleman will be content to ask his question, whatever it is, and abide by my answer to it, I am willing that he should speak."

"That suits me," clarioned the interrupter. "My question is this: Didn't you say at the Louisville convention not four weeks ago that if the Democrats of Kentucky, in convention assembled, nominated a yaller dog for governor you would vote for him?"

"I did," said Hallam calmly.

"Well, then," whooped the heckler, eager now to press his seeming advantage, "in the face of that statement, why do you now repudiate the nominee of that convention, the Honorable William Goebel?"

For his part Hallam waited for perfect quiet and at length got it.

"I admit," he stated blandly, "that I said then what I now repeat, namely, that when the Democratic party of Kentucky, in convention assembled, sees fit in its wisdom to nominate a yaller dog for the governorship of this great state, I will support him — but lower than that ye shall not drag me!"

Mac eee?

My current gadget of interest is the Asus eee, a mini-laptop that weighs two pounds, costs from about $300 to $550, uses solid state memory instead of a hard drive and comes with either Linux or Windows XP. It looks like the perfect machine for travelling, provided your trip doesn't require you to play graphics intensive games, do serious editing of digital photos, or do anything else that requires a reasonably powerful computer. Its one serious fault, from my point of view, is that it does not come with Mac OSX.

But it could. It is apparently possible, with sufficient effort and ingenuity, to install OSX on the eee, although doing so violates Apple's licensing terms, which only permit installation on Apple hardware. So far as I can tell, the result is not only illegal but pretty flaky—people who have done it have difficulty getting various parts of the software to work, and doing it seems to require multiple tries and not always succeed.

Suppose that Apple itself took over the project. They, surely, could produce a version of OSX that would run smoothly on the eee. Further suppose they partner with eee to produce a slightly more expensive model, perhaps with a faster processor and more RAM, intended to run apple software. I, at least, would buy it.

One obvious question is to what extent such a machine would steal customers from Apple's more expensive models. The eee is not much of a substitute for a desktop, but someone who already had a desktop and needed a portable might buy a $700 Mac eee instead of a more expensive Macbook. On the other hand, the eee is both cheaper and smaller than anything that Mac offers, so would appeal to a lot of people who would not otherwise buy a Macbook.

I don't expect it to happen. But one can always dream.

---

A little more research turned up an ingenious, if implausible, solution to the licensing problem. The Apple license refers to "Apple-labelled" hardware. So you take an apple logo off an old Mac, glue it onto your eee, ... .

I have a feeling it isn't going to fly in court, but it definitely deserves a gold star for effort. For additional details, see the link.

Thoughts on Obama

A number of commenters asked why I preferred Obama to McCain; nobody seemed surprised that I prefer Obama to Clinton.

McCain strikes me as a nationalist, likely to be comfortable with retaining and even expanding on the increases in executive authority claimed by Bush. He is also the one pro-war candidate. War, as observed long ago, is the health of the state. While there may be circumstances where all other alternatives are worse, I do not think this qualifies.

Perhaps I am too optimistic about Obama, but I do not think he is going to turn out to be an orthodox liberal. There is a group of intellectuals connected with the University of Chicago who have accepted a good deal of the Chicago school analysis but still want to think of themselves as leftists. They are, as I see it, trying to construct a new version of what "left" means. Examples would be Cass Sunstein and Austan Goolsby, both at Chicago, and Larry Lessig, who used to be there.

Sunstein describes himself as a libertarian paternalist, meaning that he wants to take advantage of elements of irrationality in individual decision making to nudge people into making what he considers the right decisions, while leaving them free not to if they so wish. Goolsby, judging by webbed pieces of his I've read, is a pro-market economist who happens to be a Democrat, rather like Alfred Kahn, who gave us airline dereguation under Carter. He is also Obama's economic advisor. I do not agree with all his views—for details of one disagreement see an earlier post—but I like them better than the views usually supported by Democratic politicians and their advisors.

Obama himself, while obviously constrained by the fact that he is trying to get nominated, has occasionally let things slip that suggest a more libertarian view than typical of liberal senators. At one point he said something mildly favorable about school vouchers, retreating rapidly under pressure from the teachers' unions, and similarly with marijuana decriminalization. His most visible disagreement with Clinton is over her plan to force everyone to buy health insurance. He appears uncomfortable with that degree of coercion, even though he is willing to use the less direct version—taxation to subsidize the insurance that he thinks people ought to have.

Bush was elected on a pro-market, small government, platform and proceeded to greatly expand the size of government—and not only in the form of military spending. His view of the legitimate power of the executive branch, including the authority to deliberately violate federal law, I find frightening. Perhaps, if we are lucky, Obama will turn out to be the anti-Bush.

Thoughts on the Democratic Nomination

It is looking as though Obama has it sewed up. Exit polls, however, suggest that Clinton supporters are much less willing to vote for Obama, if nominated, than Obama supporters are to vote for Clinton, which might mean that Obama is better able to win the nomination but less able to win the election.

That raises an interesting question: To what extent can a party nominate its most electable candidate? Suppose you are a superdelegate convinced that the party's strongest candidate is Clinton. Also suppose, as will almost certainly be the case, that Obama has won significantly more votes and more delegates in the primaries. How free are you to vote for what you see as the good of the party? Part of the point of having superdelegates, presumably, was to let them do that—but will it work?

There are two reasons it might not. The first is democratic ideology—not limited to the Democratic party. Primaries are a sort of mini-election. That is presumably one reason why so much attention was given to who won each state, even though delegates were being split roughly in proportion to votes, making the difference between 51% and 49% less important than the difference between 49% and 46%. If Obama won the primaries it is unfair, undemocratic, for him to lose the election. If he does, his supporters will feel betrayed, cheated, and may stay home, perhaps eventually defect from the party. Even among those who had no strong views on the nomination, the picture of a democratic choice reversed by power brokers in (metaphorically) smoke filled rooms may cost the party votes.

The second reason is individual self-interest. The more delegates Obama starts the convention with, the more likely he is to win the nomination. If Obama is nominated and elected, it is in the interest of the individual superdelegate, a professional politician making his career within the party he will head, to have supported him. Combining these effects, I think it very unlikely that the superdelegates will reverse the verdict of the primaries, even if a majority of them think Clinton the more electable candidate. If I am right, then the addition of superdelegates does not in fact solve one of the problems it was intended to solve.

I should perhaps add that my reason for considering the possibility of a Clinton win is not wishful thinking. At this point, I regard Obama as pretty clearly the least bad of the candidates.

More than that, I think there is at least an outside chance that he might improve things, shift American politics very slightly in the direction I want it to go. It's worth remembering that the big shift in New Zealand, from a very dirigiste system to something much closer to a free market, was done by their equivalent of the Democratic party.

Just as the recognition of communist China was done—some would argue had to be done—by a president with a reputation as an anti-communist.

What Law Schools Should Tell Applicants

In a previous post, I criticized the approach the ABA has proposed for including bar passage rates in the accreditation process. This post considers the same question from the standpoint not of accreditation but of the information law schools ought to provide to applicants.

Most law students study law in order to practice it. For most of them, practice requires passing the bar. Naturally enough, they want information on how likely they are to pass according to what school they go to. There is currently no way they can get that information.

To see the problem, imagine two law schools: Harford and Podunk. Harford, having its choice of students, admits ninety with LSAT scores of 180, the highest possible, and ten with LSAT scores of 160—a mix of affirmative action admissions, children of generous donors, and students admitted due to a bug in the admissions office software. Podunk admits ninety students with LSAT scores of 160, ten with scores of 180—students rejected by Harford due to the same bug.

Both classes graduate and take the bar. Harford reports a bar bassage rate of 80%, Podunk of 50%. Which is the better school to go to if you want to pass the bar?

Of the eighty Harford students who passed the bar, seventy-eight arrived with an LSAT score of 180, two with 160. Of the fifty Podunk students who passed, ten were students with 180 LSATs, forty were students with 160 . The bar passage rate for the low LSAT group was 20% for Harford, 44% for Podunk. For the high LSAT group it was 87% for Harford, 100% for Podunk. For both groups, Podunk did better.

Bar passage depends both on the school and on the student is; the average bar passage rate for the school, which is what gets published, shows the combined effect. So a school that admits better students may get a higher bar passage rate even if it does a worse job of teaching them.

To provide applicants the information they want, schools need to publish bar passage rates as a function of LSAT. A simple way of doing so would be to break LSAT scores into groups—176-180, 171-175, ...—and report bar passage rates for each group, perhaps summed over a period of two or three years to provide enough data for a meaningful figure. It might turn out that the elite schools did a worse job for everyone. More plausibly, it might well turn out that the elite schools did a better job for students with high LSATs and a worse job for students with low LSATs—useful information for the latter in deciding where to go.

[I am not at this point concerned with whether students ought to judge schools by bar passage rates, only in how we can help them to do it.]

A Possibly Relevant Stoy

Many years ago, sitting in an airport waiting for a flight from Bombay to Sydney, I got into a conversation with a woman waiting for the same flight. We ended up sitting next to each other and spent a good deal of time during the flight talking. It was one of the more interesting conversations I have ever had.

She was from a traditional south Indian family, flying out to Sydney to join her husband, a physician. Her marriage had been arranged for her by her parents, although she had been permitted to meet her prospective husband in advance and pretty clearly could have vetoed their choice. She was as intrigued by the odd marital institutions of my society as I was by those of hers.

Most of us tend to assume that our society's institutions are in most ways right and that other places, especially ones with arrangements more like those of our past, are simply backward societies whose inhabitants haven't quite caught up, aren't bright enough to see the obvious superiority of our way of doing things. But the woman I was talking with was obviously intelligent and well educated, a real person not a stick figure in a book or my imagination. It rapidly became clear that I did not have any conclusive arguments to show that pairing up people via romantic love worked better than doing it by arranged marriages. As it happened, she was happily married while my marriage had recently broken up, so the evidence from our very small sample of the alternative approaches favored hers.

I ended the conversation a good deal less certain that I was right and she was wrong.

I mention the story now because it is relevant to my attitude to the FLDS case. I do not want to live in a society where everyone ends up in arranged marriages, polygamous or otherwise. But I do want to live in a society where subgroups with with a wide range of different ideas about how to arrange their lives are free to implement them—where, for instance, the Oneida community, which I discussed in an earlier post, is possible.

Obviously there are some limits to that—I am not proposing that Kali worshippers be free to go about assassinating people. If it is true, as alleged (with, I think, no evidence), that FLDS brides are literally forced to have sex, that is a crime that ought to be prevented. But a lot of the hostility to the sect, and a lot of the willingness to believe negative claims presented with no evidence by sources that there is little reason to rely on, seems to be based on the fact that their pattern of life and marriage is strikingly different from the norm; people too quickly jump from "different" to "evil" or "crazy." Thus, in the comment thread to an earlier post, we had someone confidently asserting the existence of a sixteen year old girl with four children--on the sole evidence, so far as I could find out, of a statement in an affidavit based on the testimony of an unnamed informant.

Before closing, there are a few scraps of evidence worth mentioning. One is the marriage on the basis of which the head of the sect was convicted of being an accessory to rape. The prosecutors were surely looking for the best possible case—and the older the husband and younger the wife, the better their case would be. Yet the marriage they came up with was between a fourteen year old bride--legal to marry in a fair number of states--and a husband who was not fifty but nineteen. That suggests to me that either marriages of young girls to old husbands are considerably rarer than critics of the sect claim or that wives sufficiently unhappy with their marriage to be willing to cooperate with such a prosecution are very rare, so rare that the prosecutors had to take what they could get.

Another piece of evidence is the striking absence, so far in this case, of defectors from the sect. The children are isolated from their parents under the control of the authorities. The mothers, if they are unhappy with how the sect treated them, may reasonably believe that by testifying against the sect and so pleasing their children's captors they might prove that they are qualified as parents and so get their children back. None of them seem to have done so.

Over the longer term, while there have clearly been defectors from the sect, some very critical of it, my impression is that there haven't been all that many—clearly not enough to threaten the sect's survival. That suggests to me that their social system, however odd, does not produce a lot of people who hate it. That is not a high standard, but it is some basis to conclude that an alternative social system should be allowed to exist.

My Views on FLDS v Texas: An Interim Summary

Having posted a good deal on this, I thought it would be worth summing up my current view, in part to have something to look back at when and if the facts become clearer.

The FLDS

I think it is clear that the FLDS engages in polygamy. Since there are few legal restrictions on consensual sex between adults at this point, however, it is not illegal for three or more people to cohabit, even if they regard themselves as married. Whether it is immoral would depend, in my view, on the details of the relationship.

I think it likely although not yet proved that the FLDS violates state law on age of consent. They could probably avoid doing so by making sure that any marriages involving women below the age of consent for non-marital sex were with women who could legally marry and were done as legal marriages to husbands who were not already legally married to someone else. It does not sound likely that they have taken such precautions, however. I do not think marriage not recognized by the state to someone below the age of consent for nonmarital sex is inherently wicked or immoral, although I can easily see that in many cases it would be.

I think it likely that the FLDS pressures young women into what they consider marriage. Under many, probably most, circumstances I would regard that as a bad thing to do but probably not something that either is or should be illegal, age of consent issues aside.

It is possible that the FLDS actually forces young women to have sex, which I would regard as clearly immoral, but I have not yet seen any good evidence of their doing so. I have seen no evidence that the FLDS engages in activities that would legitimately be classified as child abuse other than arranging "marriages" with young women. I am confident that their child-rearing approach is one I would not approve of—but that's true of a lot of people.

The Texas Authorities

I think it is clear that the CPS has been routinely misrepresenting the facts in order to justify its actions. The most recent example was an announcement about how many of the FLDS "minors" in their custody had evidence of having at some time broken a bone, offered as evidence of child abuse. As one newspaper pointed out, citing a medical text, the rate--about ten percent--was below what one would expect for a random set of children. Other examples include the claim that several of the girls knew the (we now know nonexistent) "Sara" and the practice of making public assertions about supposed minors without explaining that the age classification is merely the opinion of the CPS, which has refused to accept documentary evidence to the contrary and has at various points reclassified people to increase the count of "minors."

Given that, I am inclined to regard essentially all of their factual assertions as claims that might turn out to be true or might be largely bogus. Thus, for example, their figure on how many minors were either pregnant or had had children were offered with no explanation of how they were calculated. They could be based on very weak evidence of maternity, they could be based on selectively reclassifying young adult mothers as minors, they could be true. The figure on pregnancies is inconsistent with the figure on the total number of mothers unless the pattern of childbirth was striking irregular. That may indicate that the latter figure is bogus, it may indicate that CPS hasn't identified all of the pregnant women. One recent news story claimed that many had refused pregnancy tests.

In addition, the Texas authorities have so far avoided conceding what on the evidence is entirely clear, that the original phone call that set off the raid was bogus. The obvious reason is that conceding that would generate a news story favorable to the FLDS and unfavorable to them. Better to let the facts gradually trickle out while leaving inattentive members of the public with a mental picture of a (in fact fictional) pregnant sixteen year old with a fifty year old abusive husband. The authorities claim to have another source of information who they have not identified, but there is at least some reason to suspect that that source is an anti-polygamy activist who left the FLDS more than fifteen years ago, so could not provide any first hand information about the situation at the Texas ranch.

Consequences of disputed age: A Legal Question

The facts of the FLDS case raise an interesting legal question. Suppose child protective services seize someone, claiming he is a seventeen year old minor at risk of being abused. He claims to be 18 or over and offers documentary evidence, a birth certificate, which they reject, arguing that it might be bogus—that it might, for instance, be the birth certificate of someone older with the same name. Their evidence for age is their judgment of his physical appearance. As I understand it—readers who know more are invited to correct me—the normal result is a hearing before some sort of judge, who decides whether CPS gets to keep control over him.

Finally, suppose the supposed minor is in fact telling the truth and eventually is able to prove it. Is CPS liable for illegally restraining him—in effect imprisoning him without cause? My guess is not, although I don't actually know.

My hypothetical raises problems in two directions. If CPS has no legal liability, that means that all it takes to imprison anyone, at least anyone young enough so that claiming he is under eighteen isn't obviously absurd, is the assent of one judge. It's easy to imagine ways in which that power could be used, in a biased or moderately corrupt legal system, to deliberately violate rights. On the other hand, given the existence of people whose age isn't easily proved and a legal system that lets the state take control over minors when their parents are judged unsuited for the task, it is hard to see how even an honest CPS can avoid ever making such mistakes.

Opinions? Anyone know the legal status of such disputes?