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?

The Jury Nullification Problem

Recently I was called in for jury duty. When we got to the stage where the case was described, it turned out that it involved someone whose only offenses consisted of concealed carry of a handgun.

I informed the judge that I had been at least peripherally involved in the academic controversy over whether people should be allowed to carry concealed firearms. When the judge asked if I would judge the case according to the law rather than according to my own moral beliefs, I replied (truthfully) that I would not. I was dismissed from that case, sent back to be reassigned and, since they apparently didn't need jurors for any other cases at that point, sent home.

On the one hand, I think my position was correct. Right and wrong are not made by acts of the legislature. I don't have an obligation to help other people defend their rights, but I surely ought not help cause someone to be punished for doing something that I believe he has a right to do.

On the other hand, I am not at all sure that the world would be a better place if my position on the general issue were more widely held. One can easily imagine a world where members of some unpopular group—homosexuals, say, or atheists—were routinely murdered, with the murderers getting off because at least one member of the jury approved of the murder and voted accordingly.

That would not happen if potential jury members who held such views announced them in advance, as I announced mine, and so did not end up on the jury trying that case. But although I chose to volunteer my views on the issue of concealed carry, I do not feel I was morally obliged to do so. I can imagine a more extreme case, one where someone was at risk of execution or life imprisonment for violating what I considered a clearly unjust law, where I would think the proper thing to do would be to conceal my view on the subject in order to get on the jury and there prevent the unjust outcome.

The situation feels paradoxical, since I am both approving of a moral view and suggesting that its widespread acceptance might have seriously bad consequences. But logically speaking, there is no inconsistency. I don't claim to derive my moral views from something like Kant's categorical imperative, some rule requiring that I support those rules that I would like everyone else to follow.

Even the apparent inconsistency depends on the level at which my view is described. If it is "one ought to act according to one's moral views even when they disagree with the law," there is a potential problem. But that problem comes from other people having moral views that I think mistaken. It is only correct moral views—I, of course, think my views are correct, which is what it means to say they are my views—that I think one ought to act according to.

Few people would consider it odd or paradoxical to say that people ought to act morally. But suppose someone believes that it is moral to kill atheists. Having said that I think people ought to act morally, must I also say that people ought to kill atheists? Clearly not. So a better way of stating the situation would be to say that, in my view, widespread acceptance of a single true statement might have bad consequences, as a result of the combined effect of that true statement and other untrue statements.

There is no reason why a statement cannot be both true and dangerous. Indeed, the preceding sentence is such a statement.

FLDS and common law marriage

Googling around, I found a web page from the Travis Country, Texas, Domestic Relations department (bureau? agency?), detailing the requirements for common law marriage in Texas. So far as I can tell, an FLDS couple meets those requirements, provided that the woman was his first wife and old enough to legally marry him. The page claims that being in a common law marriage has the same effect as an ordinary marriage. If so, the assertion by the Texas authorities that the couples were not legally married looks distinctly shaky.

[After I posted this, someone in a Usenet discussion pointed out a provision in the family code that prohibits persons under 18 from entering into a common law marriage. I don't know how that applies to someone who entered into it in another state and then moved to Texas.]

The Texas authorities claim that, out of 53 girls 14-17, 31 either are pregnant or have had at least one child--a way of putting it that obscures the fact that only two are actually pregnant. The age of consent in Texas is 17, so a 17 year old girl can be pregnant without any law having been violated. The minimum legal age for marriage (with parental consent) is 16, so if there was a legitimate marriage, a sixteen year old girl can be pregnant without any law having been violated. It sounds from the page I found as though a common law marriage counts.

The minimum marriage age was raised from 14 to 16 only three years ago. So a woman who is currently 17 might have been legally married at 14 and had one or more children by now.

There is a further point worth making here. A lot of the support for the attack on the FLDS comes from the widely held view that the normal pattern is for girls to be married off to older men shortly after they reach puberty and promptly start having babies. It is hard to see how that can be true if, as the Texas authorities have admitted, only two girls out of 53 in the 14-17 year age group were pregnant. And if that picture is false, that undercuts the whole argument for the extraordinary treatment they have been subjected to.

FLDS and arithmetic

Correction?

I believe that when I read the original CNN report, it included the fact that two of the girls were actually pregnant. But either I misread it or the story has been revised since--at this point there is no number for pregnant girls, only for the number claimed to be either pregnant or mothers. We'll have to wait and see which is the case. It's a bit odd that they would simply lump the numbers together.

It appears, incidentally, that whether the girls actually are 17 or under is unclear. The Texas authorities seem to be judging age by appearance and refusing to accept birth certificates as evidence, at least according to a news story. Another news story refers to CPS documents claiming three pregnant girls, with at least one of them disputed by an attorney for the FLDS

Further update, uncorrection

The Time magazine story online gives the figure of only two girls pregnant. One might almost suppose that someone in the Texas CPS realized how bad the figure was for their argument and changed the account they gave to CNN.
-----

According to the most recent statement of the Texas authorities, as reported by CNN:

1. 53 girls between 14 and 17 are in custody.

2. 31 of them either have had children or are pregnant

3. 2 are pregnant.

Assuming CNN is accurately reporting the figures, two points are worth noting.

First, the two figures appear inconsistent. If, on average, two girls are pregnant at any one time, they should be producing about ten children in four years--but the authorities claim at least 29 children–more if some of the girls have had more than one child. Even allowing for random variation in the rate of pregnancies, a factor of three is an awfully big discrepency.

[On further consideration this is wrong. At the end of four years, ten children will have been produced by mothers who were 14-17 when the children were born, but only half of those mothers will still be under 18, so only about five children will have been produced by mothers who are still in the 14-17 range. According to the Texas authorities at least 29 were.]

Perhaps I'm unduly suspicious, but it occurs to me that it's easier to prove the state is lying about whether a girl is pregnant than about whether she has had a child. To what extent the latter can be disproved with DNA evidence I don't know–I gather the population is pretty inbred, which may make that harder. The girls are all under state control–it will be interesting to see if doctors selected by the parents are permitted to examine them for evidence that they have or have not had children.

Second, a little googling turned up a teen pregnancy rate in Texas, for girls 15-17, of about 4%. [another source has about 6%] So the number of pregnant teens actually present in the FLDS population is about average. Oddly enough, that wasn't the CNN headline.

I also note that CNN is still saying, of the initial caller, that "That girl has not been found and authorities are investigating whether the call was a hoax." They neglect to mention in the story that the identity of the hoaxer has been pretty clearly established, as reported in the London Times a week or so ago. The link that supposedly goes to a video on "who might be behind the calls" actually goes to a video about minors having children, with an outraged woman reporter initially confusing the number who have had children (supposedly 25 in her report) with the number who are pregnant (2). There is a link in small print in the "Don't Miss" sidebar which takes you to a reasonably complete account of the story, but one that scatters the bits of evidence through the piece and never actually comes out and reaches the obvious conclusion.

In What Sense is Polygamy Currently Illegal?

News stories on the FLDS case refer to them as polygamists but the legal arguments in the case seem to be based on the age of the wives, not their number. This raises an interesting question: In what sense is polygamy itself currently illegal?

The answer, I think, is that in most of the U.S, indeed most of the developed world, it isn't, even where there are laws that say it is. For the most part, restrictions on consensual non-marital sexual relationships between adults either do not exist or are not enforced. The same is true of restrictions on out of wedlock childbirth. So if three or more people want to engage in a long term sexual relationship, they are unlikely to be prosecuted for doing so.

What is illegal is marital fraud–engaging in what claims to be a legal marriage with one person without telling her that you are legally married to another. That, as I understand it, is the real substance of polygamy laws as they are currently enforced. In addition, of course, while a relationship involving more than two people may not be illegal, it also isn't legally marriage. That can matter in contexts such as inheritance, disputes over parental rights, and the like–the sort of contexts where same-sex marriage is still an issue even though same-sex relationships are legal. It also matters in the context of legal restrictions on sex by age, which frequently distinguish between marital and non-marital sex.

All of which seems to imply that the FLDS could legally conduct something close to their current marital practices if they were just a little more careful to conform to the letter, if not the spirit, of the relevant laws. To start with, they would want to locate in a state where the age of consent for marital sex is low--13 or 14--and not marry any girls younger than that age. They would have to refrain from having more than one wife younger than the age of consent for non-marital sex. A man who wanted to marry a second wife below that age would have to first legally divorce his first wife–but as long as she was at that point old enough to consent to non-marital sex he could continue living with her.

So far as I can tell, this would work, legally speaking. The remaining danger, assuming it were done openly, would come from non-legal objections to the practice which might take legal form. Texas raised its age of consent for marital sex from 14 to 16 only a few years ago. For all I know, that may have been a deliberate attempt to either get the FLDS in trouble or drive them out. And even with no legal changes, the law can be used selectively, as I think is happening in the present case, against a sufficiently unpopular minority.

It long ago occurred to me that there would be a simple way to maintain a low profile polygamous relationship in modern day America. Marry wife A, have a child by her. Divorce wife A, marry wife B, continue to live in the same neighborhood as wife A. If wife A is observed to be frequently in the house of husband and wife B–she would presumably want to maintain a legal residence somewhere else–that is easily explained by the desire of both parents to spend time with their child.

Does anyone know of counterexamples to my legal claim? Have there been people prosecuted for polygamy in recent years as a result of living and having sex with two or more people, where all of them were consenting adults?

Clinton, Obama, Older voters and Gerontocracy

"Another might be to create societies dominated by the attitudes of the old: bossy, cautious, conservative."

(From a discussion in my forthcoming Future Imperfect of possible effects of solving the aging problem)

In Pennsylvania as elsewhere, Hilary Clinton does much better than Barack Obama among older voters. Obama's tentative explanation is that "they've got a track record of voting for not just Sen. Clinton but also her husband."

I have a different theory, one that also helps explain the mirror image problem—the reason so many people dislike Hilary. To me, at least, she comes across as bossy, cautious, conservative, someone who knows what is good for other people and will firmly make them do it, whether or not they want to. The feel, the gestalt, fits my description above of the old. So it isn't surprising if she appeals to many older people.

Obama appeals to young people. Part of the reason may be the impression that he is willing to take risks, to bet on luck and human goodness—the sort of political risks that might heal some of the rifts in modern American society and, in the process, establish a long term Democratic majority. The sort of risks that, if something goes seriously wrong, might snatch electoral defeat from the jaws of victory in what should be a Democratic year.

I am, by the relevant measure, old, but also an optimist. Which may be part of why I find Obama appealing, despite the small detail that he is a liberal Democrat and I an extreme libertarian, and Hilary anything but appealing.

CNN: Lying by Omission

"The raid was prompted by calls made to a family violence shelter, purportedly by a 16-year-old girl who said her 50-year-old husband beat and raped her. That girl has never been identified."

From a CNN story that claims to have been recently updated. There is no mention of the fact that a 33 year old woman from Colorado has been arrested for repeatedly making bogus phone calls to anti-polygamy activists, posing as a pregnant teen FLDS member named Sara. There is a link to a video entitled in small print "watch how a hoax may have prompted the raid," but clicking on that link brings up, as of 2:56 P.M. Pacific time Monday, a video that has nothing at all on the hoax.

Given that clear evidence that the call was bogus and who made it has appeared in various places, including the London Times, I think the final sentence of the CNN story has to be a deliberate lie, or at best a misstatement intended to mislead. It's hard to avoid the conclusion that CNN is deliberately downplaying that part of the story in order to provide a less sympathetic picture of the FLDS.

The Addiction Myth

Supporters of the War on Drugs routinely argue as if most or all illegal drugs were addictive in a reasonably strong sense—use them a few time and you are hooked. Some recent data from the National Survey on Drug Use and Health show how wildly wrong that belief is.

The figure for heroin, one of the most addictive drugs studied, is that of people who first used heroin from 13 to 24 months prior to the interview, 69.4% didn't use heroin at all during the 12 months before the interview and only 13.4% were dependent on heroin during that year. Of people first using crack during the 13-24 month prior period, over three quarters had not used it in the year before the interview.

And yet more on the FLDS phone call

Judging by the a recent story in the Deseret News, it now seems almost certain that the phone call was a fake. The story concerns a 33 year old Colorado Springs woman who has repeatedly made phone calls to anti-polygamy activists claiming to be an underage girl in the FLDS named Sarah.

Which raises an interesting question. Before raiding the FLDS compound, did law enforcement agents make any attempt to determine the origin of the phone call that was the basis for the raid? My understanding is that phone company records show the origin of phone calls, so it shouldn't have been hard to do. If they did check and found that the call was from Colorado, did they tell the judge when applying for a search warrant? If they knew and didn't tell, was the warrant obtained by perjury and so invalid?

It also raises a second question. Perhaps I missed it, but I didn't see any serious discussion in the early stages of the story of whether or not the phone call was real, a question that seemed obvious to me from the beginning. Why?

And, finally, Ms Voss, who seems to be the spokeswoman for the Child Protective People, was quoted as saying that several of the girls seized admitted to knowing Sarah but then wouldn't say anything further. If Sarah really was bogus, then Ms Voss was presumably lying. If she did it in court, under oath, she is guilty of perjury. Any odds on her being charged?