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March 25, 2008

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Roach

The Dude abides.

James Joseph '94

Professor Nussbaum,

You ask whether I would like “a searching inquiry into the sexual practices of public officials.” I can’t say that the prospect conjures up any particularly appetizing pictures. But I’m not sure why the question is relevant to your original claim. Spitzer’s sexual practices were not discovered by an aggressive Puritanical dragnet that trawled for kinky elected officials; they were discovered accidentally, as the byproduct of laws directed at the financial activity of terrorists. So while my answer is no -- like you, I don’t much care for witch hunts into the private lives of public officials (or anyone else) -- the more germane question is whether it makes sense to sweep illegal behavior under the rug once it has been discovered, just because a minority of people expresses a subjective preference that the illegality is distasteful.

The whole point of law is to set standards for what is permissible and what is not. Standards are worthless unless they are objective and generally applicable. This may require enforcement of laws that some citizens find unpalatable -- a hazard of democracy -- but the alternative is a recipe for either tyranny or chaos. If your view on how to enforce prostitution laws were the template for law enforcement in general, then any citizen could ignore the law based on his or her own subjective belief in the law’s merits. A law’s plain language would have no bearing on whether the conduct it purported to condemn was actually prohibited. A valid defense to every breach would be: “But I think it’s a bad law.” This is no way to organize a society.

That said, while I think the law should be interpreted identically for everyone, it also makes sense to hold public officials’ conformity to the law to a higher level of scrutiny. Public officials are trustees of the body politic. Their charge includes power over the public treasure and the coercive machinery of the state, and this position amplifies the risks of corruption and abuse. And of course there is a credibility problem: if a public official can ignore the law just because he or she (or you) thinks the law is bad -- especially after swearing to uphold it -- then why shouldn’t everyone else be able to do the same thing?

A “higher level of scrutiny” need not be inquisitorial. The fact that laws should be enforced does not mean that enforcement must always and everywhere proceed at full throttle. The economic principle that we live in a world of scarce resources applies to prosecutors, too, and in step with the prevailing sentiment of our increasingly non-Puritanical society, most of them are content to rank prostitution low on the priority list.

In this respect, Bowers v. Hardwick is more pertinent than you may have intended. Similar to Spitzer, Hardwick was not hunted down by a pitchfork-wielding vice squad of Puritans. The officer who caught Hardwick in flagrante delicto had a warrant to enter Hardwick’s home based on conduct that had nothing to do with sex. It’s true that Hardwick spent a few hours in jail on sodomy charges; but it’s more telling to your thesis about Puritanism that when the sodomy law presented itself for enforcement, the district attorney just yawned at the whole thing and let it drop. (The matter only proceeded to the Supreme Court at the behest of legal advocacy groups, as a test case.)

In other words, that prosecutor -- more than 25 years ago, and from a Southern state -- exercised all the good sense and discretion that seemed ever to elude the likes of Eliot Spitzer. In view of Spitzer’s prosecutorial zeal (even as governor), his resignation portends many fewer “searching inquiries” of the sort that you would find “profoundly offensive.” And if so, then perhaps you might even be willing to consider -- though admittedly it is contrary to your initial defense of him -- that Spitzer’s eviction may ultimately have been for the best.

Kind regards,

James Joseph

Jon Rowe

"It’s true that Hardwick spent a few hours in jail on sodomy charges; but it’s more telling to your thesis about Puritanism that when the sodomy law presented itself for enforcement, the district attorney just yawned at the whole thing and let it drop."

[...]

"In other words, that prosecutor -- more than 25 years ago, and from a Southern state -- exercised all the good sense and discretion that seemed ever to elude the likes of Eliot Spitzer."

It was insulting to even have those laws on the books. But you do have a small point: If you look at the link to the Puritan code from 1641 I reproduced above, they also address sodomy in its capital crimes and demand the death penalty for it.

People have every right to make test cases out of bad laws which they want to get off the books. Frank Kameny did something truly hilarious in Virginia after Bowers but before Lawrence: On a talk radio show he publicly propositioned every adult citizen in the state to engage with him in the act of consensual sodomy of his or her choice.

However, you are right the best way to leave unenforceable laws on the books that you want to see remain on the books, is to systematically not enforce them.

Lawrence v. Texas could have been avoided if the Texas legislature repealed the stupid law while the litigation was going on (to moot the case); but they refused to do so.

SWDavis

You must have a basket full of nits, Witness. My ability to retain names of cases improved but little in law school, but I did benefit from the perspectives of my school's few non-legally-trained faculty members. Of all the substantial criticisms to be made of Dr Nussbaum's views, however, you chose to criticize her for not having a JD and making what is obviously a typo (probably triggered by "Lawrence
being the name of a town in Kansas). The tactic, argument ad hominem, is familiar to (and beneath) well-educated lawyers and philosophers alike. Good luck getting them to fire Coase, though.

Walker

Truly, you can always count on Roach to engage all debaters with the same level of respect and humor with which they engage him; and truly, we can always count on LAK to take the debate to the lowest, most hateful place we can imagine. The term "shrill liberal" is often misused-- see Howard Dean's demise. (YYYYPPPHHHHKKKKOOOOWWWW!). But LAK, you do a disservice to other liberals with your pugilism.

LAK, if I recall correctly, once justified his/her approach by arguing that the divide between conservatives and liberals is so sharp and vicious, that there is no point pretending with social niceties. That sounds like something that Trotsky and Lenin would have discussed early in the revolution, each urging the other forward with the certainty of their convictions.

(Brief aside: A. Bosch, your references are the soul of wit. Not only to Lebowski, but also to Godwin.)

I suppose I am a post-modern libertarian, who bases his views in a few beliefs (generalities, truisms): (1) humans are incredibly fallible and often don't know what is best for themselves (and this applies equally well to all human institutions, a la government); (2) all humans are fantastically less than perfect; (3) humans in positions of power are generally there because they are power-seeking; (4) power corrupts and begets desire for more power; (5) government is less efficient than a free market, and has greater risk of abuse; (6) an honest democracy is a terrible form of government, but better than all the rest; and (7) the greatest amount of individual autonomy and freedom that can be allowed in a society without risking complete anarchical collapse is ideal.

How do I square these ideas with Nussbaum's comment?

I find there to be some philosophical error in Nussbaum's position, though I am not sure the correction of this error would be helpful in the real world, or in terms of shaping policy. (A different discussion for a different day.)

First, sex is special. Logically, maybe it should not be; but it just is. In the same way that drugs and addictions can prevent rational, free-market decisions, so can sex. Sex is the most powerful of human interactions, and this makes sense-- what should be more powerful to our emotions than the act which we enter in to, as far as our bodies know, with the intent of reproducing?

In my humble opinion, and I believe based in solid genetic and evolutionary science, women react to sex in a serious and substantial way. Evolutionarily speaking, men are designed to spread their seed as far and as fast as possible, perhaps taking a few mates to provide special care and attention to. Women are designed to find one man who will protect and provide for their offspring: whether or not that man is the father of their child is a different issue, but the desire for stability and to nest is there. To say that prostitution can be entered in to by most women, acting logically and acting in their own best interest, without serious emotional consequences, seems to me to be wishful thinking ignoring human psychology.

(If there were some way to screen women, to know which women would be fine with prostitution, and which would be indelibly emotionally harmed, perhaps Nussbaum's position would make more sense.)

What Prof. Nussbaum contends, as far as I can discern, is that female prostitution should be legal, because it allows women freedom of choice. I have not witnessed Prof. Nussbaum make a statement on male prostitution, though surely she must also think that this should be a legal enterprise. Based on her assumptions about freedom, child prostitution would be strictly prohibited.

Here is the philosophical, freedom-of-contract problem we encounter. What if an employer wants to hire an attractive woman with the understanding that her duties _may_ include sleeping with male employees? Would such a contract be acceptable? Let's say that fictional woman Martha was going to be offered a high profile professorship, but the contract of her employment made it clear that her duties would or might include sleeping with her co-worker Richard? I believe Nussbaum would say this should be illegal.

Nussbaum wants to say freedom of choice is OK, as long as the woman is a non-prostitute professional, OR a complete prostitute, but that any mixing of the two would be rightfully illegal.

Such a position completely undermines her apparent desire for sexual freedom. And it reflects her own distaste for prostitutes and her desire to keep that industry separate from all others. If anything, such a position slants strongly against the type of sexual (and otherwise) freedoms that Nussbaum contends women (people) should have.

In short, there is no logical, solid philosophical ground that supports the argument that prostitution should be legal, but that mixing of professions or professional duties that throw prostitution and other services together should remain illegal.

I conclude with a Sobchak gem:

"Nihilist #2: Iss not fair!

"Walter Sobchak: Fair! WHO'S THE F%CKING NIHILIST HERE! WHAT ARE YOU, A BUNCH OF F$CKING CRYBABIES?"

Jon Rowe

"To say that prostitution can be entered in to by most women, acting logically and acting in their own best interest, without serious emotional consequences, seems to me to be wishful thinking ignoring human psychology."

You also have to consider that a small but significant % of women, for whatever reason, have a "male like" labido. And that these are the types that disproportionately go into such activities as prostitution, stripping, and pornographic movies. The term used for this in classical literature is "nymphomania." The male counterpart is "satyriasis." The reason why most ordinary folks know the term "nymphomania" but not "satyriasis," is not sexism as some might argue. Rather, it's because nymphomania is a statistical deviation for women, whereas satyriasis is normal for men.

Just because, however, something is a statistical deviation doesn't mean it's wrong. Left-handed behavior is statistically deviant, as is homosexuality. There could be biological or genetic explanations for left-handedness, homosexuality AND female nymphomania. The question is whether folks can flourish in these scenarios. I know some folks try to argue -- perhaps they are right; I don't know -- promiscuous female behavior results from abuse. Some argue homosexuality does as well, but I absolutely reject that one.

The best we can go on is honest testimonials. If you want the testimony of some women who, as far as I can tell from their testimony, flourish living promiscuous lifestyles google "Annie Sprinkle" or "Vanessa Del Rio." Warning, many of the results will not be work safe. Both have written books about their lives. VDR has a new one out.

Walker

Jon,

I agree. There are women who can logically choose to enter in to the profession of prostitution, and many of these are real prostitutes and not corporate lawyers. (Bada bing.)

How do we know which women can enter in to prostitution logically and without coercion? Is our society ready to embrace this profession on a legal basis? Isn't there a lot of evidence of stigmatization?

Personally, I think prostitution should be legal. I think people are better of making decisions for themselves, and if prostitution is more appealing to a certain woman than her other career opportunities, so be it.

Here's the problem I see in Nussbaum's position: why would we allow prostitution, and disallow employment contracts that incorporated sex with other professional responsibilities? At the point where you believe a woman should be able to sell her body and/or her sex, why would you then conclude that other professions cannot be be mixed with the sale of sex services? Likewise, it would make me think sale of organs would be legal as well.

Does Nussbaum's position strike you as inconsistent?

Berel Dov Lerner

Regarding "Jewish/Mosaic" law. Sorry to disappoint, but normative Judaism (i.e., not the the Judaism of the Sadducees, Karaites, etc. who failed the test of historical survival) does not accept the "literal meaning" of the biblical text as legally binding. Normative Judaism assumes that biblical law must be interpreted in the context of a whole body of originally oral interpretation and extension, i.e., the Mishnah, Talmud, etc. The laws of evidence required by Talmudic law in capital cases are so fantastically strict that it is almost impossible for anyone to ever be sentenced to death by a Jewish court. As one Talmudic dictum puts it - a court that sentences someone to death every seventy years is considered to be a cruel court. In any case, Jewish courts have not viewed themselves as authorized to pass death sentences since the dissolution of the Sanhedrin about 2,000 years ago, so the whole question became completely academic many many years ago. I am afraid that the notion of a bloodthirsty Jewish legal tradition has little basis in reality.

Joan A. Conway

Sex favors with professional services, as Johnny Carson would say, is a deal breaker.

IN ROMAN TIMES:

Julia's Law 67 A.D. - 64 A.D. concerns a woman who was discriminated in her occupation in order to eliminate women in it.

They were debauching women at banquets and steering them away from the qualities of the profession into order to weaken the males' rivals. The law protected professional women from being limited in numbers.

Orgiastic practices have been around since time began to assimulate people into a culture, like Master/Slave relationships, or agency relationships.

But when currency and the collection of taxes from property, and other resources became involved in the trade, this was considered to be taboo based on the concept of bribery, or breach of contract with the authorities and government.

Orgiastic practices are alive and well in state (Publice Employees Act, 42 U.S.C. Section 1983) Intentional conduct and state action, or unreasonable state, under the Fourteenth Amendment incorporated) employment, private employment, which demeans the employee's professional credentials for public employment as not worthy of being a real professional, because the candidate requires two to do the job of one, according to the State of California, Board of Equalization's Area Administrator.

Some of our police authorities need protection to go to lunch, and some of our police authorities don't need protection to go to lunch.

We are not all made similar, even when we are similarly-situated.

But this is a City Municipal job with lots of political clout entering into the 'police authorities' job and it tolerates deviations.

In the Certified Public Accounting field, the big firms place high ranking females into the professional career path, knowing full well, they can't pass for a substitute doing a man's job, and that they will reach their level of incompetency soon,and be forced out at about 50 with only lateral moves in their future. They will be co-opted into private or public industry, like Motorola.

They will also be without the ability to successfully sue for their rights for one reason or another.

$300,000 and two years salary doesn't go far. But who's counting when they get the prestige of a fortune 500 company in the deal.

They will not be getting the gold under the public policies of the executive office and its agency, the EEOC, and the court system either, because of the 'dumb factor.' There are too many twists and turns in a long drawn out court battle for most people.

Recognizable TV Anchor Reporters, like Diane Sawyer, who have the ability to attract viewers, I believed and I am supported by my friend Bill O'Reilly, of the O'Reilly Factor, lived with a stock broker for a while, before she married Mike Nichols.

These are not conservative principles here, but hooking up for convenience, while employed in TV, is usually frowned upon the person's professional credibility.

She is defined as political reporter, like Maria Scwarzeneggar, and everyone knows she has her reporting limits, although she does have a large fan club.

If it wasn't for her high placed husband, Producer Mike Nichols, we wonder if she would be as far up as she reached in the television world.

I believe she is receiving about 16 million a year or thereabouts.

So prostitution pays big when you are hooked to the right man, and your career be damned in the process.

Just look at Michelle Obama and her receiving a six figure income from the University of Chicago for her labors with a political husband, Barak running for President of the United States.

Is there only one standard for employment or do we tolerate people, who have behaved quite human, flocking into a culture ignoring the wisdom of their immortals. Is this a double-standard at work here, or is there a measure of truth in the comparison of sex services, and sex and professional services as a condition for employment?

How do we account for this? Or do we? Inquiring minds want to know.

Joan A. Conway

Risk-taking and reward are often associated in financial terms.

Without risk there is no reward or loss.

There is of course the punishment associated with risk-taking, if the person fails to succeed in the endeavor.

But even then loss is again associated with opportunity, while reward creates new risk in the loop.

Without loss, there is no opportunity of renewal or rebirth.

And sex is certainly a reward for the risk taken. And in addition, it is sex that caused the political and family loss that was taken in Eliot Spitzer's scandal. If he recovers from his loss, it will be associated with an opportunity, but no immediately.

By the way, since I rarely write about Roman Times, I missed the correct period for Julia's Law.

It is 67 B.C. to 64 B.C. and not after Christ. The fact came from reading about the Templer Knights and their contribution to the trades.

Females were more involved in trades in earlier periods, when there was no pressure to limit entry into the guilds.

Suzy

The conflation here of laws restricting prostitution, homosexual intercourse, and sexual harassment is troubling. The argument is apparently that when laws are "mean-spirited and offensive", like anti-sodomy laws, it would be wrong to think less of public officials who break them, even when we would otherwise expect such persons to uphold the law. However, are we to believe that anti-prostutition laws are mean-spirited and offensive, especially when anti-harassment laws are not? It is one thing to argue that prostitution should be legalized; it is another to suggest that the motives for restricting it are not significantly different from the motives behind anti-sodomy laws. Given the abuse and restrictions of freedom that prostitutes of both sexes suffer, might we not wish to outlaw it in the interests of protecting autonomy? If we deny the legitimacy of this reason, then how do we restrict consensual relationships in the workplace? I don't see how one can have it both ways, on Mill's conception or any other. Regardless, however, Spitzer did not come to his downfall by breaking a mean-spirited law that should not have applied to him. And even if anti-prostitution law were truly as bad as anti-sodomy law, the hypocrisy and destruction of public trust remains.

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