Month: February 2011

by Zoe Pollock

Vaughan Bell pretends not to hear this:

A fascinating study just published in the Archives of Sexual Behaviour looked at the link between women’s vocalisations during sex and the timing of orgasm during heterosexual encounters, finding that there was little connection with female climax but a strong link with male ejaculation. The researchers draw the ego-denting conclusion that women’s moans and sighs are not an involuntary reaction to male sexual prowess, but a way of exerting influence over their partner’s sexual response.

by Conor Friedersdorf

A reader writes:

Conor, I wish I had the same confidence you do that the conservative media elite are ironically detached from Limbaugh. I think it's likely that some of them are more detached than they let on, and are constrained about saying so because staying resolutely pro-Limbaugh (and pro-Hannity, pro-Levin, etc.) is perceived by them as necessary for business — whether that business is electing Republicans, or keeping conservative opinion magazines viable (you know opinion magazines are not gold mines).

I can vouch for the fact that some of these people are far more skeptical about talk radio hosts in private. But the reader is right that others are writing in earnest:

I can think of at least two people on that list who are bona fide true believers — this I know from personal experience — and are not being the least bit cynical. It really is hard to overstate the extent to which even intelligent members of the conservative elite have bought into the basic right-wing ideological narrative. If the only reasons for the failure of the Right's ideas are a) media bias, b) liberal evil, and c) a failure of Republicans to be sufficiently conservative (with "conservative" defined in a narrow, rigid, archaic way), then there is no need to re-examine oneself or movement conservatism's priorities. Conservatism cannot fail; conservatism can only be failed.

The reader goes on to raise an interesting tangent:

You can't forget how much more conservatives prize loyalty than liberals. Check out social psychologist Jonathan Haidt's discussion of the moral roots of liberal vs. conservative values. He points out that conservatives value in-group loyalty significantly more than liberals do. He's not saying this is wrong or right per se, only that it exists. I have seen this to be true. I have lived it myself.

Part of what I'm trying to persuade conservatives in journalism is that by being loyal to talk radio hosts, they're by necessity being disloyal to the rank and file; to any moral code that prizes truth over utility; to their professional obligation to be forthright with their audience; and ultimately to themselves. It is precisely the conservative who prizes the virture of loyalty, rightly understood, who should criticize Rush Limbaugh when it is warranted. It is a perversion of that virtue to do otherwise. The reader concludes, "I just wanted to say that all of those conservative media figures are intelligent, worldly men, but some of them really do strongly believe in the value of in-group loyalty — and this distorts their ability to think clearly about the world." What I see are people being loyal to the elites at the expense of the group (see Limbaugh's lies, the sketchy Human Events advertisements that prey on elderly readers, and the Glenn Beck gold business, to cite three examples).

by Patrick Appel

A reader writes:

An even more interesting issue regarding taxes is who divorces for tax benefits. There are a number of cases in which married couples saw that being divorced was beneficial for tax purposes. See, e.g., Boyter v. Commissioner, 668 F.2d 1382 (4th Cir.1981); Rev. Rul. 76-255. The tax laws only care if you are married at the end of the year, so people would get divorced in the end of December for tax purposes and then remarry in January only to get divorced again at the end of the year, again for the tax benefits.

The courts saw through this problem and applied a tax doctrine called the sham tansaction doctrine to divorces. The sham transaction doctrine can invalidate a supposedly legitimate business transaction if the transaction has no real economic substance other than the tax consequences. Here, the courts said that the divorce was a sham entered into solely for tax purposes and was thus not recognized by the federal government. 

The idea that people do not make these kinds of life decisions for tax purposes is clearly disproven by the above litigation. Congress knows about these issues because, since they were worried about the tax code disincentivizing marriage, they changed the Internal Revenue Code so that tax benefits would benefit married people over unmarried people. Just last week, Rep. Bob Goodlatte of Virginia entered a bill to eliminate the entire tax code, stating that any replacement code should not "penalize marriage and families." It is common knowledge that people decide whether to marry or divorce based on economic (including tax-related) benefits. Why are people still pretending these cases do not exist?  

Another reader illustrates the first reader's point about marriages that increase taxes:

What tax break? Fucking marriage penalty. We paid less taxes last year when we were single, and none of the few reasons to file married-filing-separately apply to us. We're both facing student loan debt and both need to work, so forget about us being the "single-breadwinner" household that seems to be the sole beneficiary of any marriage-based tax breaks. And combined we make more than the $60K-ish needed to fall under the no-marriage-penalty tax breaks.

Thanks for reminding me of the disappointment we had when we filled out our taxes a few weeks ago.

by Conor Friedersdorf

Glenn Greenwald's essay on what is required for Americans to reassert our civil liberties and stop extra-Constitutional behavior by government is a must read. I mostly concur with its analysis and certainly share its pessimism.

by Zoe Pollock

Michael Pawlyn describes three habits of nature that could transform architecture and society: radical resource efficiency, closed loops, and drawing energy from the sun. His pitch:

by Conor Friedersdorf

A reader writes:

I studied architecture at a university that also included an interior design school. Among the courses that both architecture and interior design students had to take in order to graduate was a series on structures. This is because, despite what HGTV might suggest, interior design isn't just moving furniture around and matching pillows with curtains but impacting load bearing elements and moving walls around. In order to do this you need to be able to sign and stamp construction documents that get approved by the city to ensure they comply with various building codes and so forth. The power to sign and stamp those documents is a legal grant that comes with licensure and in states where interior designers are not licensed, firms typically have to have an architect or structural engineer on staff for that purpose. Meanwhile architecture firms can dabble in interior design without this added cost because they do have a license (and reciprocity in all the other states aside from California due to earthquake issues).

The point of this is not to defend professional licensing requirements or schemes as they currently exist…  Instead it is to correct your portrayal of interior designers seeking licensing requirements. They're trying to compete with architectural firms but are legally precluded from doing so, much like hygienists trying to compete with dentists are being hampered; not prevent people from rearranging their living room. If you're opposed to interior designers getting licensed then you would by necessity be opposed to structural engineers and architects being licensed as well. Given your writings I wouldn't be surprised if that is the case, and I'm somewhat sympathetic to it. However, please frame the debate in that manner rather than in the somewhat mocking tone that always seems reserved for interior designers.

I hope it didn't seem as though I was mocking interior designers – as it happens, I have more appreciation for the field than most, having watched my mother transform a motel and several other spaces in phenomenal ways. I've spent the last decade encouraging her to pursue that talent  in Orange County, where my parents live. Without knowing more about building permits I have no strong views about who ought to be able to sign off on them. But I don't think the reader is framing the larger issue correctly. Let's say, for the sake of argument, that interior designers should face the same hurdles as anyone else to sign off on building permit paperwork. Sounds reasonable to me. Licensing requirements specific to interior design are still a sham.

Here's the thing: in states that don't require licenses, there simply isn't a problem with rogue interior designers! That alone should cause us to question the case for government intervention elsewhere. The Institute for Justice has the numbers (PDF) to back this up:

Consumer complaints about interior designers to state regulatory boards are extremely rare. Since 1998 an average of one designer out of every 289 has received a complaint for any reason. Nearly all of those complaints, 94.7 percent, concern whether designers are properly licensed—not the quality of their service.

Back in 2008, Tyler Cowan summarized the state of the industry:

In Alabama it is illegal to recommend shades of paint without a license.  In Nevada it is illegal to move any large piece of furniture for purposes of design without a license.  In fact, hundreds of people have been prosecuted in Alabama and Nevada for practicing "interior design" without a license.  Getting a license is no easy task, typically requiring at least 4 years of education and 2 years of apprenticeship. Why do we need licenses laws for interior designers?  According to the American Society of Interior Designers (ASID) because,

Every decision an interior designer makes in one way or another affects the health, safety, and welfare of the public.

This hardly passes the laugh test.  Moreover as Carpenter and Ross point out in an excellent article in Regulation from which I have drawn:

In more than 30 years of advocating for regulation, the ASID and its ilk have yet to identify a single documented incident resulting in harm to anyone from the unlicensed practice of interior design…These laws simply have nothing to do with protecting the public.

Most states do not have license laws for interior designers but the unceasing lobbying efforts of the ASID have expanded such licenses.

Thankfully, IJ has had success rolling back some of this absurdity in the years since, but lots of work remains.

 
by Zoe Pollock

"Rough Beast" by Jean Monahan appeared in The Atlantic in September, 2001:

Don't tell a camel about need and want.

Look at the big lips
pursed
in perpetual kiss,
the dangerous lashes
of a born coquette.

The camel is an animal
grateful for less.

It keeps to itself
the hidden spring choked with grass,
the sharpest thorn
on the sweetest stalk.

When a voice was heard crying in the wilderness,

when God spoke
from the burning bush,

the camel was the only animal
to answer back.

Dune on stilts,
     it leans into the long horizon,
bloodhounding

the secret caches of watermelon

brought forth like manna
from the sand.

It will bear no false gods
before it:
     not the trader
who cinches its hump
with rope,
     nor the tourist.

It has a clear sense of its place in the world:

after water and watermelon,
heat and light,
silence and science,

it is the last great hope,

Noah's ark,

Virgin of the oasis
who brings forth milk
under a deadly sky.

Year after year
it follows the bright stars
east, falls to its knees
for the lowliest king.

Except, of course, when the top lip
lifts like a curtain
on a mighty sneer.

Then you may hear,
out of the mouth of that rough beast,
the walls of the wide world
collapse.

 

(Photo: Egyptian anti-government protesters celebrate outside the presidential palace in Cairo after President Hosni Mubarak stepped down on February 11, 2011. By Mohammed Abed/AFP/Getty Images))

by Conor Friedersdorf

In response to David Frum, and his case that President Bush shouldn't be arrested for okaying torture, I've heard from several law professors, whose main arguments are consolidated below:

1.  There is extensive academic literature by noted international criminal law scholars such as Cherif Bassiouni and Jordan Paust which details exactly how high officials of the Bush administration can be prosecuted, step-by-step.  Bassiouni’s recent book is a good starting point.
 
2.  Even Reagan administration solicitor general Charles Fried agrees that the factual predicate exists to prosecute Bush and Cheney under the torture laws.  He makes an argument against this on entirely political grounds—and that is the path taken by most law scholars who have tried to defend Bush.  They argue that a prosecution would be politically inflammatory and would undermine the nation's political culture.  That may be true, but it has nothing to do with the law.  Still it has to be acknowledged that political considerations often influence prosecutors decisions to bring charges or not, even though our legal system works hard to discourage this.
 
3.  Frum quotes selectively from the Torture Convention, omitting key passages, and distorting the Convention’s meaning. ("Article 6:  Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.  Such State shall immediately make a preliminary inquiry into the facts…. Article 7:  The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution….")
 
4.  It's misleading to say that the Torture Convention is not self-executing.  The idea of "non-self-executing treaties" is not a concept in international law, certainly not with regard to the Torture Convention, but is instead a complicated and contested doctrine that US courts have developed with regard to the effects of US-ratified treaties in US domestic law.  It can be used to block private litigants from using a treaty obligation to bolster their position, but it has no bearing on what other governments may or may not do.  It therefore has no bearing whatsoever on a decision to prosecute a foreign head of state.
 
5. Frum fundamentally understands universal jurisdiction.  It does not cover domestic drug sales or ordinary murder, much less euthanasia. It is available for only a very narrow range of carefully defined crimes, most of which are related to warfare.  Torture and “disappearings” have been included within the scope of universal jurisdiction for generations.  Frum’s example of drone warfare is another give away in this regard.  There is a great deal of controversy over whether the use of drones is wise and whether international law authorizes it; but there is little basis to say that universal jurisdiction norms could be invoked to go after a foreign head of state for the use of this type of weaponry.  Such a claim would be quickly batted down, as are most private efforts to go after heads of state.  But torture is a different matter, and on this point, prosecutors and courts are poised and prepared to go forward.
 
6.  The US has embraced and applied universal jurisdiction for generations; it did so explicitly when it ratified the Geneva Conventions and the Torture Convention and when it enacted the Torture Act and the War Crimes Act.  These instruments explicitly create jurisdiction over individuals regardless of their nationality.
 
7.  George W. Bush did not obey all the laws of the country in which he lived.
 
8. Frum is correct that Bush would argue reliance on advice of counsel and point to the torture memos. On this point, several facts need to be considered:  this is an affirmative defense on which Bush has the burden of proving all the facts with clear evidence.  Second, it is far from clear that the defense of advice of counsel is available in a torture prosecution.  The legal precedents, to the contrary, suggest that because of the absoluteness of the torture prohibition, no such defense could be recognized.  And even if there is such a defense, it likely would be available for people down the chain of command—for a CIA interrogator, for instance—it is not likely to be accepted as a defense for the ultimate policy-maker.
 
9.  Beyond this, the torture memos are a transparent attempt to circumvent domestic and international law by creating a “golden shield” against criminal prosecution. Indeed, Jack Goldsmith openly acknowledged this fact.  There's no reason why foreign governments should respect them and there’s every reason to expect that prosecutors will actually take the memos as evidence of criminal intent (as has already occurred in the criminal investigations in Spain). Remember that such was the Bush Justice Department’s confidence in these memos that they quietly rescinded them all before leaving office, and Obama rescinded them in a public order immediately after his inauguration.
 
10.  The US has a long history of holding foreign officials accountable for international crimes even when domestically authorized: Nuremberg, Tokyo, the Former Yugoslavia, Rwanda, Alien Torture Statute cases.
 
11.  Frum's rhetoric not only challenges universal jurisdiction, but plain old territorial jurisdiction, implying that US citizens and officials should not be punished by foreign governments for crimes committed on foreign soil.  In other words, Frum is arguing for impunity.  But impunity itself is a serious violation of international law, not to mention fundamental principles of the American Constitution.

I am out of my depth here, so consider Frum's argument and these rebuttals to be me airing both sides of the argument – and if David responds I'll let you all know.