Does Law Have Insufficient Visual Drama?

Once upon a time, where you wanted to sell real estate, you handed some soil or twig for the property to the buyer in what was called livery of seizen. Couples kiss, wear traditional costumes, and exchange rings when they marry in front of a crowd. One of the traditional ways to revoke a will (recently litigated in Colorado) is to destroy or deface the physical document (which leads to a number of peculiarities of probate law). Traditionally, wills were read aloud after a death, although that rarely happens these days. Even though it no longer legally matters, it is traditional to seal a contract with a handshake. When sports teams finish a game, win or lose, the players each slap hands saying "good game", emotionally putting an end to disputes over the details that led to the final result. Churches acknowledge affiliations to their faith with dramatic baptisms in the Christian church and a vividly memorable circumcision ceremony for infant Jewish and (at least in traditional societies) adolescent Muslim boys. Basic trainees in the military, men entering monastic orders, and prison inmates have their hair shorn, and are stripped of almost all of their personal possessions.

The current story arc in the webcomic Red String's (set in Japan but written by Gina Biggs of Georgia) features Hanae Niijima, a lesbian whose mother will not accept the fact that she has come out or acknowledge Hanae's true love Fuuko Akimoto. The set up to the scene is in this dialog:

Hanae: Why can't you be happy for me? This is who I am. This is ME.

Mother: It's NOT you. You were my sweet little girl who liked flowers and unicorns; who loved to be dressed up in frilly clothes and have me curl your hair. You were never a tomboy!

Hanae: That's STILL me. You think you have to be boyish to like a girl? That's . . .you can't believe that.

Hanae decides the overcome the conceptual block that seems to be getting in the way of her mother by making a visual statement:

Hanae: Fine. [Grabbing scissors with one hand and her long flowing curly hair with the other.]

Mother: What are you doing?!

Hanae: If its frills and curls keeping you from accepting this then I'll get rid of them. Will that work?

Hanae then hands a long pony tail of crudely cut off hair into the hands of her shocked mother who sits, holding it, staring off into space.

Obviously, I'm not recommending that this become a ritualized part of the process of coming out that is mandated in any way. But, powerful visual dramas can often convey meanings about abstract concepts, particularly emotionally charged ones, that some people have a hard time grasping from mere words.  Hanae's mother might be able to understand from the hair in her lap what she couldn't when her daughter merely spoke to her.

For example, one of the classic problems that one sees in modern family law litigation is that one or both of the people who once were married, or at least a loving couple, can't let go of that relationship. The service of the divorce petition, the signing of the papers, the dryly worded court order ending a marriage and providing for the sharing of the children and property of the marriage, and often a restraining order as well, don't communicate to the former member of that relationship with adequate emotional force that the relationship is really, once and for all, over.  Some people are simply beyond reaching by any means of communications, but a large number of people who go through family law proceedings simply don't really understand at an emotional and subconscious level what has happened until much later, even if they can parrot the court's ruling.

Perhaps if that message could be conveyed with more visual drama in some universally accepted new ritual, more people who move on, and there would be, as a result, less senseless fighting driven by old emotions instead of new practicalities. The demise of fault based divorce has made the process much more antiseptic for all involved in the process, but have we overdone it to the point of failing to really acknowledge in an emotionally valid way that not just the legal construct of the marriage, but also the emotional reality of the relationship that it approximates, has ended. Shouldn't the symbolism and ritual that ends of marriage need to be even more powerful and less subtle than the symbolism and ritual that starts one?

Adoptions tend to be even more understated, for fear of spooking the relinquishing parents, and not surprisingly, the main complaint that gets litigated in adoptions is that of relinquishing parents who claim they were properly appraised of the gravity of their actions.

A classic problem in consumer litigation of all kinds is the not infrequent failure of a debtor or consumer, already overwhelmed by paper and having trouble determining what is most important, to realize that a summons and complaint in a lawsuit is a once and for all speak now or forever hold your peace notice that has profound legal consequences if ignored.  This lack of understanding is one of the driver's of the almost ubiquitous paranoia about ulterior motives and about being cheated by one's betters found among unsophisticated people who have frequently been on the receiving side of litigation.

Perhaps we would do well to imitate the litigation practices of the protocol agents of the advanced civilization in the science fiction book "Jaran" by Kate Elliott, where legal disputes are announced by delivery of a physical baton in person by a courier, and one responds to the allegations at a mandatory in person appearance at the designated place and time, as inefficient as that may be, rather than simply enforcing the duty to appear by entering a default judgment against a party who does not appear (one that is often forgotten until property is seized pursuant to the judgment).

I have no empirically evidence to support the theory that more dramatic visual drama in the legal system would make any difference at all. The modern trend has been to strip away formalities, arcane language, pompous court room surroundings, wax seals, fancy ribbons and the like from legal matters. Instead, modern legal proceedings and legal facilities, favor plain English, the bare minimum of in person appearances, contemporary but understated and inoffensive surroundings suited for efficient, processing of business matters, dispenses with wigs and obtuse morning suits, and use very simple seals and acknowledgements - relying on the ability to confirm orders with third party repositories rather than lack of counterfeitability for reliability. Many documents that used to have to be notarized are now simply signed under penalty of perjury with no third party verification of identity or intent.

For lots of purposes this trend may be a good one. It demystifies the legal system and makes it more accessible to pro se parties. Much of what courts do is as much administrative business as it is emotionally meaningful decision making. For the most part, people prefer an inexpensive, quick, form driven informal probate process to the traditional succession proceedings of courts of equity will all their pomp and circumstance. And, some parts of the court process, like the delivery of jury verdicts finding someone guilty or not guilty, have managed to hold onto some of the drama that gives them emotional power. But, maybe some of the time, particularly in civil matters that don't involve business people and may have consequences for people who do not have the same cultural heritage as the lawyers and judges who are running the system, a higher touch, lower tech approach is in order and would make courts more effective. It is certainly a hunch that would be worth exploring with more systematic research.

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Bainbridge: Jesus Hates The Welfare State

Professor Bainbridge is the leading academic apologist for director supremacy vis-a-vis shareholders in public corporations.

Lately, he has also taken another extreme position, that government assistance to the poor is unchristian and bad policy.

No person with decent human feelings can be unmoved by the plight of those who suffer. Yet, in the Parable of the Good Samaritan, Christ did not tell us to invoke the coercive power of the state to help the victim, he told us to do it ourselves. When one considers the track record of the welfare state, that advice seems well taken. It's been 17 years since Marvin Olasky published The Tragedy of American Compassion, but I see little evidence that would change his basic conclusion that the welfare state makes a mockery of compassion and, for the most part, perpetuates poverty and suffering.

Maybe we need to start requiring future law professors and economists to have more background in history than Bainbridge apparently does, because the pre-welfare state days were undeniably miserable and the claim that private giving and an end to the welfare state could end poverty or suffering is absurd. While the existing arrangements may need improvement, simply letting the poor starve and die unless private individuals feel charitable is not the solution.

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What Is Mind Control And Why Should We Care?

The blog "Science Not Fiction" has an interesting post on whether mood influencing drugs are a form of mind control.  The original post argues that they are not.  In a length comment, I argue that the distinction is not as clear as the author of the post suggests.

Drugs can influence decision making to the same extent as variety of other factors from money to threats of violence.

The distinction between legitimate and illegitimate ways of influencing someone's decision making is one that is relevant to a wide array of legal issues because voluntariness in decision making is a key legal issue in wide variety of legal contexts from substantive criminal law issues like consent as a defense to rape charges, to the criminal procedure issue of the admissibility of a confession or validity of a plea bargin, to trusts and estates law, to health care law, to contract law, and more.

In these bodies of law, some kinds of decision influencing factors are considered to be legitimate, while others are seen as making consent ineffectual and amounting to duress or undue influence or fraud.

Rather than asking whether drugs constitute mind control, we should instead ask "when is it legitimate to use drugs to influence a person's decision making process?"

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The Anti-Canon

Dystopia isn't just for science fiction writers.

Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis.

From here.

Some anti-canonical examples pre-date the Republic. For example, the "Star Chamber" is a classic anti-canonical example against which the Bill of Rights protections for due process are examined.

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Sexual Freedom v. Freedom From Exploitation

Anyone who reads this blog with any regularity knows that I have strong opinions on a great many issues. But, now and then, a case comes along that is so hard to evaluate, that it is very hard to see a right answer. The case of the 41 year old British man with an IQ of 48 who was in a same sex relationship and banned from having sex is one such case. It presents hard issues that are worth grappling with in a situation that is unfamiliar to most of us.

The Facts

The facts, insofar as we know them are as follows:

The 41 year-old [man] had been in a relationship with a man with whom he lived and told officials "it would make me feel happy" for it to continue.

But his local council, which provides his accommodation, decided his "vigorous sex drive" was inappropriate and that with an IQ of 48 and a "moderate" learning disability, he did not understand what he was doing. . . . the man known as Alan was described as being physically able but "seriously challenged in all aspects of his mental functionality". He lived in a home provided by the council, where he developed a sexual relationship with a man called Kieron by the court. Alan was also accused of making lewd gestures at children in a dentists' surgery and on a bus, although no police action was taken.

An IQ of 48 is a level of intellectual functioning lower than 99.8% of the general population, and is commonly described as "moderate mental retardation" per the DSM-IV. It is roughly equivalent to having the mental abilities of an eight year old child.

The Law

The law in Britain gives the state broad powers in such a case: "Under the Mental Capacity Act 2005, [judges on Britain's Court of Protection] have the power to make life-or-death decisions for people deemed to lack the intelligence to make them for themselves - such as ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception."

In Colorado, and most U.S. states, an individual in this situation would probably have a legal guardian appointed for him under the supervision of a general jurisdiction or probate court or some other court with comparable equity jurisdiction (a type of jurisdiction named after the British courts that once, but no longer, have jurisdiction over these kinds of cases). In Colorado, a guardian's authority can vary from case to case as set forth in a judge's order, although at common law a guardian of an adult had rights comparable to the rights of a natural parent's rights when that parent's child is in the parent's custody.

In other words, while the issue would present itself somewhat differently, a U.S. court could probably grant a guardian of an adult with an IQ of 48 the right to decisions similar to the ones made by the Court in this British case.

Procedural History

The town hall began court proceedings in 2009 to restrict contact with Kieron on the grounds that he lacked mental capacity, and an interim order was made. . . . A psychiatrist involved in the case tried to prevent the man being given sex education, on the grounds that it would leave him "confused".

Mr Justice Mostyn said the case was "legally, intellectually and morally" complex as sex is "one of the most basic human functions" and the court must "tread especially carefully" when the state tries to curtail it.

But he agreed that the man, known only as Alan, should not be allowed to have intercourse with anyone on the grounds that he did not have the mental capacity to understand the health risks associated with his actions.

Under the judge's order, the man is now subject to "close supervision" by the local authority to ensure he does not break the highly unusual order. The judge concluded: "Alan does not have the capacity to consent to and engage in sexual relations.

"In such circumstances it is agreed that the present regime for Alan's supervision and for the prevention of future sexual activity is in his best interests."

"Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part," said the judge.

Analysis

There are good reasons to be skeptical of this kind of court order. The eugenics movement sponsored movement in the 20th century to sterilize the mentally retarded is generally seen as a class historical instance of government exploitation of vulnerable individuals. There is also a history of government abusing its authority to punish gays in the name of mental hygiene. Some high profile cases in Britain involving prominent intellectuals are particularly notorious.

On the other hand, the exploitation, sexual and otherwise, of people who don't have the capacity to consent intelligently to what people ask of them is also a long standing problem. A central theme of Steig Larsson's Millennium Series (which starts with "The Girl With The Dragon Tattoo") is that vulnerable people, such as wards with guardians appointed for them and illegal immigrant women are subject to a horrible injustice when they are sexually exploited. Sexual exploitation is sufficiently common in this situations that in the popular imagination, at least, at is seen as almost the unpleasant norm in prisons, foster care situations, and households where an impoverished single mother lives with a boyfriend unrelated to her children.

We have statutory rape laws that declare that children under a certain age are incapable of consenting to sex and that someone who does so has committed the crime of rape. While those laws can be controversial when applied to high schoolers who are past puberty and routine have sex with each other, there is a wide consensus that they are appropriate when applied to pre-pubescent children. Likewise, while there is intense controversy over the harsh sentences imposed for people who merely view child pornography, and over the near criminalization of innocent child nudity, there is widespread consensus that it is a serious crime to use pre-pubescent children to create pornography or to pimp out pre-pubescent child prostitutes, and that there is a genuine government interest in destroying the economic market that drives its creation.

Certainly, there would be a very wide consensus that is would be a serious crime for an adult to have sex with an eight year old, regardless of the sex of the parties involved.

But, there are many important ways that a 41 year old is different from an 8 year old, even if they have similar mental capacities. Adults routinely have sex for pleasure. Many adults men are gay or bisexual. Eight year olds have genuine opinions and feelings and are capable of engaging in surprisingly sophisticated relationship, of understanding differences between right and wrong to a considerable extent, and consenting to a variety of agreements. Most parents allow their eight year olds to make many choices about their clothes and room decor and food to eat when eating out, to largely choose their own friends at school, and to spend small amounts of money as they see fit. Eight year olds can play baseball and board games, can hug each other and family members in genuine expressions of love, and make many other decisions for themselves.

Even though statutory rape is often theorized as an incapacity to consent, there is really more to it. Pre-pubescent children aren't just intellectually incapable of consent, they are hormonally and physically not yet at a stage of development where their bodies are ready for sex.

Statutory rape laws for adolescents, which were almost universally adopted initially with the understanding that they would pertain to adolescent or adult men seeking to have sex with teenage girls, were also rooted in the concern that teenage girls due to their youth and adolescent impulsivity are especially vulnerable to making impulsive bad decisions that have the potential to carry with them the serious long term consequences of pregnancy, parenthood and quite possibly either a shotgun marriage for life or a lifetime in which one is unmarriagable and destitute as a result.

A different way to view statutory rape laws, that is gaining increasing credence, is to view statutory rape not as an incapacity to consent in the same class as a stranger drugging you and then having sex with you, but as a distinct subset of cases where someone in a position of trust (by virtue of being an adult in states where there is a Romeo and Juliet exception) abuses that position of trust. In this view, statutory rape is less like a date rape drug case and more like a sexual harassment of a subordinate employee case. The gravamen of the wrong is abuse of power within a relationship by someone whom we presume under the law should know better than to do so.

There is also a widespread view that sexual relationships carried on by someone who isn't ready for them or capable of "truly understanding" what sex involves (do any of us ever really reach that blissful state) will inflict intense psychological trauma that will destroy a person's entire well being, also making it far more serious than other kinds of things to which one might consent.

If a 41 year old man who is physically ready for sex, and perfectly well could be homosexual or bisexual, is voluntarily (to the extent that his eight year old intellectual capacity permits) having sex with another man and enjoying the experience, who is to say that it really is wrong?

This man doesn't appear to be suffering from psychological trauma. He doesn't have to worry about having children or being rendered unmarriagable or forced into a marriage that can't be legally terminated. His body, and no doubt his hormones, are ready for sex and have been for decades. Finding someone who is ready and willing to satisfy his sexual drive probably isn't very easy for a 41 year old with an IQ of 48 who lives on welfare in public housing. It is certainly plausible that Alan is gay or bisexual (indeed, by some definitions his acts and words are sufficient to say that this is true as a matter of definition), that the relationship between Alan and Kieron is as sincere, voluntary, loving and non-exploitative as the sexual relationship between any two single adults, and that the town's intervention is simply a case of an inability to genuinely come to terms with the idea that two men can have legitimate, loving sexual relationships. There are certainly strong hints in this case that this is what is happening in this situation.

On the other hand, it certainly wouldn't be implausible that Kieron is an evil hearted, exploitative manipulator who has managed to get Alan to say things that hide Alan's inner feelings of pain and being used and compelled into something that makes him uncomfortable that Alan isn't capable of articulating to legal system officials in that kind of atmosphere and that Alan has no sexual attraction to Kieron, but has trouble distinguishing between sexual attraction and the kind of platonic physical contact that is normal between eight year old boys.

While Kieron's motives aren't the center of the court's inquiry, which is really about what is best of Alan, it is certainly possible to see Alan as being in a position a bit like someone who is acting happy because he has been tricked into thinking that he has formed a relationship that was really just a scheme to make him the butt of a cruel joke and doesn't know it yet, but is sure to be furiously angry and miserably sad when he realizes it.

By analogy, contrary to common belief, a large share of bona fide childhood sexual abuse victims have trouble remembering the incidents because they weren't as aware of the special meaning that our culture attaches to sexual contacts at the time, and feel the bulk of the psychological trauma that they experience not when the sexual abuse actually takes place, but when they get old enough to gain an understanding of that special meaning and finally realize that an adult whom they trusted exploited them all those years ago. A reasonable person could fear that Alan is at grave risk of experiencing a similar kind of traumatic realization and suffering dearly at a psychological level when and if that happens.

If one thinks that absence of capacity to consent is really all that matters in a case like this one, Kieron's motives are irrelevant and people with the intellectual capacity of eight year olds are morally equivalent to actual eight year olds and shouldn't be subjected to sexual activity. But, if the important question is really abuse of a position of trust that Kieron holds as the intellectually normal close friend of mentally retarded Alan, then Kieron's motives and what is going on in the interactions between Kieron and Alan matter a great deal to the merits of whether a court should or should not prevent Alan from having sex with Kieron.

On balance, I'm skeptical of the British judge and town government's decisions in this case. It bears the stink of a lot of unreasonable prejudices. But, I also recognize that this decision is a highly fact specific inquiry for which ordinary social intuition provides few exact precedents, and that decision makers further removed from the facts are at a decided disadvantage. It is hard to say with any great degree of certainty from the little that we know that the judge's decision was clearly wrong in this unfamiliar territory.

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Goldman's Regulating Reputational Information

Internet law blogger extraordinaire Eric Goldman's book chapter on regulating reputational information is now available at SSRN. Per the abstract:

This essay considers the role of reputational information in our marketplace. It explains how well-functioning marketplaces depend on the vibrant flow of accurate reputational information, and how misdirected regulation of reputational information could harm marketplace mechanisms. It then explores some challenges created by the existing regulation of reputational information and identifies some regulatory options for the future.

I particularly like his operational definition of "reputational information," as:

[I]nformation about an actor’s past performance that helps
predict the actor’s future ability to perform or to satisfy the
decision-maker’s preferences.

and his notion of “reputation systems” that aggregate and disseminate reputational information to consumers of that information, as a discrete concept.

He notes that immunity from liability and the reputation of reputation systems themselves may be more effective than government regulation of reputational information, but identifies emerging concerns such as "ex ante consumer gag orders" in contracts with vendors and service providers, which may deserve scrutiny under void as against public policy doctrines or may require statutory regulation.

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