“How to beat a lie detector”

September 2, 2013

An Indiana prosecutor announced last week that a federal judge should seek extensive jail time for a Mr. Chad Dixon. By day, Mr. Dixon is your workaday Joe American: small-town Indiana, owner of a small family business, father of three struggling to pay his bills, just like everybody else. But when night falls, Dixon sheds his charming exterior in favor of a nefarious scheme that has everyone from the FBI to Customs to “an unnamed intelligence agency,” from the Air Force to “69 to 100 communities,” in utter disarray, shattered by Dixon’s masterful con game:

Prosecutors are asking a federal judge to send a “strong message” by sentencing an Indiana Little League coach to prison for trying to teach as many as 100 people across the country how to beat lie detector tests.

In a test case aimed at deterring other such polygraph instructors, prosecutors have urged the judge to sentence Chad Dixon to one year and nine months in prison, citing a “career of criminal deceit” that included teaching the techniques to child molesters, intelligence employees and law enforcement applicants.

In short, according to the Indiana prosecution, a blog post with this title is a potential threat to the very fabric of American society, that the only thing between us and general disarray is the hammer of justice itself, the polygraph – the “lie detector.”

Now, the real story beneath the hyperbole of this article is that Mr. Dixon’s extracurriculers viz-a-viz the polygraph are more interesting for his actively coaching criminal suspects to lie to investigators than for their general strategies for how to beat a lie detector. But the prosecution has stated its goal of discouraging people from teaching others techniques for beating the lie detector, and so the question is raised – what’s wrong with teaching people how to beat a useless investigatory tool?

The colloquial name for the polygraph machine, the “lie detector,” is a misnomer, since the polygraph does not detect lies or any other mental states. Rather, the polygraph reads a select few of the enormous number of physiological indicators of stress, and from this stress the prosecutor receiving the information from the polygraph examiner reading a select few indicators of stress infers that the test-taker is either lying or telling the truth. The extremely attenuated connection between a prosecutor’s interpretation of a polygraph reader’s interpretation of a polygraph machine’s interpretation of a polygraph taker’s stress levels forms the basis for all polygraph evidence, which is why most employers are banned from using it in pre-employment screening, five states have banned its use by employers entirely, and virtually every state at least restricts the ability of prosecutors to bring in polygraph evidence.

The most common limitation on polygraphs is to admit them by stipulation only – that is, only if both parties agree before the test is administered that, no matter the outcome, the outcome will be offered for the jury. This creates a certain gamble for either side – the prosecution might request a polygraph in order to try to “prove” that one party is lying, only to have that person “pass” the polygraph, thereby undermining the prosecutor’s case, and vice versa with the defense. It also gives the party being tested ample time to follow famed Soviet spy Aldritch Ames‘ advice on how to beat a polygraph: “get a good night’s sleep,” eat hearty breakfast, and go into the test on minimal stress. Because how’s the stress-detector going to infer lies from nonexistent stress? (An interesting consequence of the ability to beat the polygraph with low stress is that, at least in theory, sociopaths should be immune to the polygraph.)

In contrast to the states, where local laws often draw bright lines over how and when the polygraph is admissible, federal jurisprudence has created a complex weave of rules and exceptions over how and when either side can bring the polygraph into a federal case. At the axis of this confusing web is Rule 403, one of the Federal Rules of Evidence, forbidding the introduction of information whose value as evidence of a fact or crime (“probative value”) is outweighed by its tendency to confuse the jury or prejudice them against the defendant. Where questions of a scientific nature are concerned (and the question of whether or not physiological indicators of stress can be used to reliably infer deception most certainly is a scientific one), the test of probative value you need to pass is called the Daubert standard.

Prior to the Daubert standard (ironically created by a case overturning a different case that excluded polygraph testimony as unscientific), the reigning sole condition for whether or not expert scientific testimony was admissible was whether or not a given practice was accepted as scientific by the community that uses that practice. If you kind of squint and don’t think about it too hard, this old standard (the “Frye standard”) seems reasonable enough. Fingerprinting is likely thought to be scientific by forensic experts, right? But on the other hand, homeopathy is likely thought to be scientific by homeopaths, which is the community that uses homeopathy, and so on the old standard, evidence derived from the methods of homeopathy was theoretically admissible under the old standard.

The Daubert standard is more amorphous but I think significantly more scientifically meritorious than the Frye standard. It has several components, the most important of which are that scientific testimony must rely on methodology derivable from the scientific method, and that “the scientific method” is determined (non-exclusively) by such factors as falsifiability, the success of the evidence under peer review, a known error rate, acceptable standards for the control of such practices, and the acceptance of the scientific community of that methodology (formerly, this was the sole relevant criterion). So how does the polygraph hold up?

Sadly, the Supreme Court chose to duck the application of Daubert to the polygraph, declaring instead that local rules control and that the polygraph is admissible sometimes and leave it to the circuit courts to make that call, but at least five of the circuits have held that polygraph evidence is almost universally excludable, especially when the party importing it to trial is not doing so under the stipulation method discussed above. This is perfectly consistent with the known ambiguous-at-best statistical evidence for the actual reliability of the polygraph. More general objections – such as that stress does not always mean lying, especially in stressful situations like police interrogations, or that there are Constitutional questions as to whether or not a criminal defendant, or even his lawyer, or even trial judges (who are left as gatekeepers of scientific evidence by the Daubert standard), generally have the scientific literacy necessary to understand the problems with polygraph evidence or that the context in which it is being used varies its results – hardly seem necessary when the hard data itself tells us that the polygraph is unreliable.

That is why Rule 403 is the nucleus of arguments that tend to exclude polygraph evidence – because Rule 403 knows that, even if the other side has all the time in the world to explain the scientific shortcomings of polygraph evidence, the jury always stands to be confused or prejudiced against people who “fail” the “lie detector.” There’s a certain Cold War charm, an association with the gadgetry of espionage, connected to the polygraph. Television shows often depict its results as a smoking gun, with the polygraph working like a seismometer for deception. The mere transformation of “stress-detecting polygraph” into “lie detector,” bypassing miles and miles of missed inference between them, is itself evidence that culture attaches far more weight to these devices than they deserve and, as such, they tend to be more prejudicial than probative.

As to Mr. Dixon’s classes, they hardly seem worth the thousand dollars a pop that he apparently was charging his clientele (many of whom he apparently advised not just to “beat the lie detectors” but to “lie to the detectives”) since there are so many legal avenues to avoiding it entirely. If being a sociopath or a well-trained Soviet spy or a yogi isn’t your thing, you can always simply refuse to stipulate to one, or craft a clever Daubert motion to exclude it.


Tort reform in action: rapist wins back $3.1 million from his victim

August 12, 2013

“Tort reform” is a phrase used to describe legislated control over the amount of money that plaintiffs are allowed to recover in civil suits. Operating on the presumption that state legislative bodies know more about justice than the actual victims of injustice or physical harm do, many states, like Ohio, have worked to limit plaintiffs’ recoveries, confined mostly to either certain types of actions (medical malpractice, suits against municipalities, etc.) or certain types of harm (emotional distress is usually the big loser in tort reform).

Now, tort reform is a great thing for a lot of people. If you’re a large insurance company that wants to screw over the insureds under your care, tort reform is a really good idea. If you’re a drunk, incompetent, or negligent doctor or lawyer, tort reform is probably going to save you a lot of money some day. If you’re a manufacturer or retailer and you want to be able to get away with lax safety standards or other general disregard for the public health and safety, tort reform is likely near the top of your lobbying agenda. And, in Ohio, tort reform is apparently now working out like gangbusters for sexual predators:

A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.

Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.

A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s.

In short, a jury of Ohioans came to the deliberated-upon conclusion that a woman’s years of suffering, including post-traumatic stress disorder after being raped during a counseling session by her pastor, was worth $3.6 million dollars in compensation. But the good Republicans of Ohio’s state legislature have decided that it would ultimately be injurious to the public good to permit juries to even contemplate damages in excess for $500,000 for such frivolous touchy-feely claims as “emotional distress” for victims of savage sexual abuse. Essentially, the rapist was given back $3.1 million of a $3.6 million debt he owed to the victim of his aggression because the state of Ohio feels that the suffering of such victims is never worth more than $500,000.

The overarching problem with tort reform is that it could only ever be good for people who lose lawsuits, and bad for everybody else. That tort reform is good for negligent, reckless, or just downright dangerous defendants is a no-brainer: the incompetent doctor, the drunk driver, the “lemon” dealer, the careless manufacturer, the discriminatory hirer and firer, the stingy landlord, everyone who could benefit from injuring the public stands to gain from tort reform. Even when damages are limited just to specific harms like emotional distress, the unjust will still find a way to win: in short, the state legislature of Ohio does not value the emotional well-being of its citizens, at least not enough to permit juries to even contemplate their value over $500,000.

The rapist’s political champion, Republican state representative Kirk Schuring, is quoted with the traditional red herring of tort reform:

I don’t know how you assign a dollar amount to emotion. … There’s probably never going to be an adequate dollar amount. And $500,000 is not a small sum of money. … And who’s to say that $3.6 million is enough? Why not $36 million?

Who is to say that $3.6 million is enough? A jury of your peers is. That is the system contemplated by the Constitution, the system that Schuring is supposed to serve. If the damages are generally not worth that much, if the claim is truly frivolous, then it is up to the jury, the trier of fact, to make that determination in a flexible, organic, case-by-case process, not just writ large from above. And yet, despite his professed agnosticism on the question of how much emotional damages are worth, Schuring seems to be 100% certain that they are never worth more than $500,000. Who’s to say that $500,000 is always enough?

Tort reform is often proposed a protection for businesses – and in a sense, it certainly is. Businesses facing unnaturally-limited damages have a clear picture of how much (and how little) they need to care for the safety of others. The grand purpose of civil liability is to provide economic disincentives for bad behavior. Removing a disincentive to behave badly (for example, limiting emotional damages that sexual predators and their principals can suffer) is the same as incentivizing such behavior. The only thing that keeps businesses from behaving negligently is the prospect of successful plaintiffs’ recoveries for harms they suffer, as valued by juries. But now, in Ohio, businesses, governments, and individuals know that any harms they inflict on plaintiffs’ emotions are relatively cheap now, compared to what prior to tort reform would have been liability that actually scales to the harm done to the plaintiff.

The next big area of focus for tort reform is medical malpractice. With the healthcare industry’s rapid changes in the last few years, combined with the new pressures insurance companies face thanks to proscriptions against denying coverage based on pre-existing conditions and other provisions of the Affordable Care Act, the heat is on to cut costs wherever possible and tort liability is certainly up there. Unfortunately for the friends of the negligent and the reckless, tort reform is empirically known not to cause decreases in insurance premiums. All that it changes is that insurance companies and doctors are faced with fewer reasons to monitor and improve their safety procedures. When a medical malpractice judgment can cost millions of dollars just to settle, you have millions of reasons to make sure your doctors don’t commit malpractice; the hospital, being a much cheaper cost-avoider than patients, is properly responsible for policing its own internal safety procedures and for compensating the public when it fails to do so. Artificial limitation of malpractice recovery instead shifts the costs of malpractice onto the public: limiting recovery to, say, $500,000 for medical malpractice, would shift all harms from medical malpractice in excess of $500,000 to the victim.

Whether it’s a rape victim having to pick up the tab for almost 80% of the damage done to her by a sexual predator, or the victim of medical negligence having recovery limited by the dedicated ideologues of big business lobbying interests, tort reform is bad for victims, and good for the negligent and the reckless. The sad case of the Ohio rape victim is the logical result of tort reform: juries have less freedom, victims have less compensation, and wrongdoers laugh all the way to the bank.

Galloway v. Greece: a Lemon Test no-brainer

August 7, 2013

Following a relatvely mixed ruling from the Second Circuit on the question, the Supreme Court decided a few months ago to take up the issue of whether or not municipal or state legislatures should be able to open their legislative sessions with sectarian prayer. The case, Galloway v. City of Greece, is based on a fact pattern familiar to every level of American government, from the Senate to local town councils: the legislative body in question opens its sessions with a prayer, almost universally led by Christian clergy, using ambiguous or non-existent criteria for selecting the clergyman or vetting the content of his (the clergy invited to perform the incantations are almost universally male) prayers, during hours that the legislature in question is supposed to be doing the business the taxpayers pay them for.

According to the briefs filed by the respondents, on facts that the Second Circuit noted were basically uncontested, the town of Greece, New York, fits the familiar pattern to a T:

The Town Board in Greece, New York, opens its monthly meetings with clergy-led prayer. With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ; one asked attendees to recite the Lord’s Prayer in unison; and another criticized objectors to the prayer practice as an “ignorant” “minority.”

Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding “Amen,” or making the sign of the cross. Members of the audience do the same. At the conclusion of the prayer, the Town’s Supervisor typically thanks the prayer-giver for serving as the Town’s “chaplain of the month,” though he did not bestow this title on the few non-Christians who delivered the prayer in 2008. Many members of the audience are required to attend the meetings; children also routinely attend to fulfill a high-school civics requirement.

In short, the question before the Supreme Court is whether or not it is appropriate for the state to invite religious proselytizers of an almost exclusively Christian background to pray, and compel government officials and non-governmental attendees ranging from children in mandatory high school classes to public onlookers, to join in their proselytizing, on government time, using government funds, in government facilities, on behalf of the taxpayers, without violating a Constitution that expressly forbids the government from establishing a state religion.

This should be a brainer-free case. The flagship judicial test for whether or not the government has violated the First Amendment’s proscription against the establishment of state religion (hence the “Establishment Clause“) is the Lemon Test. Despite all attempts by the conservative wing of the Supreme Court to curtail the use of the Lemon Test, it remains the most common, and most accessible, test for whether or not an action by the state unconstitutionally establishes a state religion or otherwise infringes on the religious liberties of American citizens.

The relative paucity of brainers in this case is exemplified in some of the amici (“friend-of-the-court” briefs, basically, legal briefs written by parties that aren’t part of the lawsuit but that have some other interest, such as a moral conviction or political affiliation, related to the case) that have been filed for Greece by such notable champions of the separation of church and state as the Southern Baptist Convention (my religious alma mater) and the Republican-controlled Congress. The Southern Baptist Convention points out that denying the power of legislatures to open with sectarian prayer raises the ghastly specter of a Unitarian takeover of America. And as for the Republicans’ brief, well, lets just say that its “table of authorities” includes one actual statute, seven actual cases (more than half of which were decided in favor of the secular side of the case), and ten Bible verses.

Now, on the Lemon Test, there isn’t much to argue about. The Test comes in three prongs; to wit:

1. The challenged state action must advance a valid secular governmental interest
No prayer advances any valid secular governmental interest. The government’s interests are diverse and many, but none of them seems ever to have been advanced or protected by inviting sectarian interests, almost entirely Christian ones, to spend legislatures’ time praying. Now, either prayer is capable of causing real change in the world, or it isn’t. If it is, then whatever beneficence the Almighty seeks to bestow upon the peoples’ representatives are likely already accounted for in his divine plan (for the Calvinists in the audience), or, it can be accomplished just as easily and somewhat less controversially through the legislators’ private prayer rights that are absolutely and unreservedly protected by the First Amendment. And if prayer isn’t so powerful, then no amount of public pandering to religious interests will yield advance any secular governmental interests whatsoever, except for the interest individual legislators have in getting re-elected by friendly religious voters.

2. The challenged state action must not needlessly advance one religious interest over others
The key word in this arm of the test is “needlessly.” Many government actions advance religious interests: for example, tax exemptions for religious institutions doubtlessly advance religious interests, but the rules for those exemptions are so broad and ecumenical that even mafioso cults like Scientology qualify. But a significant component of the complaint in Galloway is that the city council’s prayers are almost entirely delivered by Christians, and the invocations often extend far beyond simple intercessory prayer into outright evangelism. For example, according to the complaint, there has been exactly one attempt to have a Jewish prayer open the town’s sessions, and it wasn’t even clear whether or not the person invited to deliver that prayer was a Jewish clergyman or simply a layman of Jewish background. Given the relative media hubbub that erupts whenever, for example, a Hindu or a Muslim clergyman is selected to lead such prayers in Congress or other legislative bodies, combined with the dire statistical summaries of who leads the prayers in the town of Greece given in the complaints, it stands to reason that the legislative prayer sessions are uniformly Christian in nature, they are highly sectarian, and they are often evangelistic in nature.

3. The challenged state action must not needlessly entangle the state with religion
This arm of the test is the heart of my own objections to legislative prayer sessions. How does the Congress determine who is “qualified” to give an invocation? Does the Congress, or the town of Greece for that matter, have either the authority or the competence to investigate somebody’s religious background sufficiently to know if the prayer they are giving is “accurate?” The very existence of this case suggests that the government is getting too tied up in internecine religious arguments for its own good by having these prayers at all, since the case forces us to investigate the bona fides of public prayer leaders in a way that the state is usually forbidden to do. We don’t want the state deciding that person x is a “real” Christian but that person y is not, that person x’s religion is appropriate for public display but person y’s is not. And yet the scheme of legislative prayer sessions forces us to do just that.

So, if the Lemon Test jurisprudence is so clear, why is this even an issue? Well, as the Second Circuit pointed out, the Supreme Court has had to examine the Constitutional muster of legislative prayer sessions, but in the flagship case in that area, Marsh v. Chambers, the Court did not apply the Lemon Test at all. Instead, the Court provided an articulate and interesting but I think entirely off-topic examination of the long history of American public bodies using prayer on taxpayer time and ruled accordingly. But the Court did not pause to ask itself the basic question of whether or not a violation of the Constitution is validated just because the state has done it a lot, as if the First Amendment comes with a grandfather clause or a statute of limitations, as if the Constitution contemplates ratification of unconstitutional acts just by doing them over and over again for a long time!

As such, while the legal question may be one about the legality of state-sponsored prayer, the practical question is whether or not the Supreme Court will actually use the Lemon Test in answering that question. As I’ve mentioned, the Lemon Test has sometimes been criticized by the conservative wing of the Court, mostly for delivering results unpalatable to Antonin Scalia personally and his acolytes by association. The Court has not clearly spelled out a precise test for when the Lemon Test is appropriate, instead seeming to apply it according to whether or not the outcome desired by the majority can be reached through that test or not. If it can be, the Lemon is hailed as the mainstay of Establishment Clause jurisprudence, and if it can’t, then the Lemon Test is derided as a relic of the liberal excesses of the mid-20th-century Supreme Court. It remains my hope that the Lemon Test, a perfectly lucid and logical exposition of the soul of the secular framework of the Constitution, will be used and will yield the appropriate outcome. If not, we leave it to the future leaders of America to see what happens when you combine political gridlock with religious gridlock, and hope that you all enjoy the outcome.

Obergefell v. Kasich: small but important gay marriage victories keep rolling in

July 24, 2013

“This is not a complicated case.” – Judge Black, in Obergefell

When last month’s big gay marriage wins came down, I was of course quite pleased but not delighted. Between the two of them, Windsor and Hollingsworth dealt a powerful victory to marriage equality, forbidding the federal government from denying marital benefits based on sexual orientation, but otherwise doing little to deal with the real obstacle to equality, which is state-level bans on gay marriage.

Specifically citing to Hollingsworth, a court in Ohio has created some important precedent in dealing with the state-level bans. Obergefell v. Kasich, handed down by Ohio’s Judge Timothy Black yesterday, quickly and decisively decides the question of whether or not Ohio will recognize gay marriages solemnified by states other than Ohio:

This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot…

Judge Black’s fairly pointed ruling incorporates gay marriage into both ancient precedent and Constitutional guarantee that the state of Ohio must recognize the judicial determinations of other states, including marriages. As Judge Black observes in his ruling, it has forever been the case that marriages that meet, say, the age requirements or familial restrictions of their native jurisdictions but not Ohio’s must still be treated as full and legal marriages under Ohio law. While this is clearly a victory for gay Ohioans, there are at least three very good reasons that this is a crucial victory for marriage equality nation-wide.

The first is that most states follow precedents about extra-jurisdictional marriages virtually identical to those in Ohio, and all of them are bound by the Full Faith and Credit Clause, requiring total acknowledgment of the official acts of other states. In this sense Obergefell merely reiterates the clear fact that marriages are such official acts and, ipso facto, Ohio is not free to deny their existence within its own borders.

The second, related reason is that this builds a new argument against gay marriage bans, which is that they are simply useless: Ohio has a state-level ban on gay marriage whose ostensible goal is to deny marital rights to gay couples, but instead all it does now is impose upon them the relatively minor inconvenience of traveling to Massachusetts, Maryland, DC, or any of the other jurisdictions that recognize gay marriage, get married, and come home. The illegitimate and discriminatory purposes of state-level marriage bans are simply impossible, for the simple reason that no state has the power to ban marriages of any kind – only to determine what kinds of marriages can be performed within its own borders. This has practical significance as well as constitutional significance – a discriminatory law that cannot really be enforced, or that is truly useless beyond purely-symbolic discriminatory rhetoric, retains the constitutional defect of in-fact discrimination, but lacks the constitutional virtue of serving a legitimate governmental function (since a useless law serves no function whatsoever).

Thirdly, Judge Black graciously decided to expand beyond the very minimal ground he needed in order for him to make his ruling. It would have been enough for him to say “gay marriage, interracial marriage, cousin marriage, turtle marriage, doesn’t matter – if another state says it’s OK, then we have to recognize it.” And that would have achieved all of the ends that are relevant to Ohio’s gay couples. But Judge Black also went on to build a strong Constitutional case on top of his decision to accept extra-jurisdictional gay marriages, citing directly to WindsorHollingsworth, and the mid-90s Romer v. Evans, which struck down a Colorado state ban on all legal recognition of gay couples:

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated…

The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor…. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association…

This elegantly establishes every important point of a constitutional case against state-level gay marriage bans, which are of course the next logical phase of the gay marriage equality movement. Obergefell is an important win in the next round, which will require more than the harsh constitutional regime under which the federal government operates. What the equality movement needs is robust precedent extending the doctrines that undergird Hollingsworth onto the states, and even obvious arguments like the Full Faith arguments that decided Obergefell go a long way towards de-fanging the existing gay marriage bans.

Paying workers with payroll cards: the $40 billion wage violation you’ve never heard of

July 11, 2013

Imagine that you’ve just gotten your biweekly paycheck. You take it down to the bank and start putting it to work. You haven’t used your bank account for a month or so, so first you check your balance just to make sure everything’s in order. You transfer some money to your savings account or another personal account, then make a cash withdrawal. You get home, and after a brief chat with your spouse, you decide to make your paycheck available to both of you – but, shoot! You left your check stub at the ATM! You need it to be replaced quickly just so you can get on with your bookkeeping, so you put in for an expedited replacement. It arrives, and you turn it into a joint account.

Now imagine that everything that just happened took up 5% of your income.

If you worked a minimum-wage job for Home Depot and got paid with a prepaid payroll card distributed and managed by a third party, then took all of the steps listed above, you spent almost $30 on a $580 biweekly minimum wage paycheck, all because the accessibility of your own paycheck, of the money you worked for, is at the mercy of fees imposed on you by Citibank. That’s almost 5% of an income that is already so low that you can qualify for food stamps even with a full-time job.

Several major media outlets have recently run stories detailing the increasingly widespread practice of paying workers, mostly minimum- or low-wage workers in hourly positions, not with cash, not with direct deposits, but with pre-paid credit cards, and the efforts of workers to fight back against that system. Most of this litigation is in its preliminary stages, is mostly coming from private parties and not the state (the state’s intervention in the wage-card system is so far confined mostly to data-gathering), and is focused not on the wage-card system itself, but on the various fees that come attached to such cards.

Since the cards are supplied by private parties just like any other pre-paid credit card, the profit motive compels the issuer to build in hefty fees for the kind of transactions that many people with ordinary bank accounts would take for granted. A friend of mine who works an hourly job but who is paid with a payroll card permitted me to share the fee structure she has to deal with just to get access to her own money. Click to enlarge:

Typical prepaid payroll card fee structure

Typical prepaid payroll card fee structure

The fees are largely nonsensical – does it really cost the administrator of the card more than three times as much in infrastructure costs if somebody makes a withdrawal from a teller instead of an ATM? Does the card provider really lose money that needs to be recouped if somebody doesn’t use their account for a few months? These questions are not mere rhetorical axe-grinding; there is legal significance to the question of what is being deducted from a paycheck and why (more on that below). And on a minimum wage job, where saving next to impossible anyway, even a few dollars a week off the top can mean the difference between saving for the future and living from paycheck to paycheck. But even one penny to get access to your own paycheck is an intolerable affront to your value as a worker, especially if you’re at the minimum wage level.

Most people are used to seeing such absurd fees in statements for credit cards that they volunteer for, or that they voluntarily reject. But the idea that such a payment scheme can be imposed on a worker from above conjures recollections of the days when employers owned not just the worker’s labor, but the worker’s entire life, when a worker paid in company scrip had nowhere to spend his “wages” at the company store, living in the company dormitories, dying in the company chapel, and being buried in the company funerary lot. The very conditions that gave rise to employment protections in law and the labor movement in general have come back, hidden behind the urbane face of business efficiency.

Clearly, there is something intuitively unpalatable about low-wage workers getting paid with cards that have hefty fees attached to them, even just to access their wages. But is it, strictly speaking, illegal? Millions of Americans are getting paid close to $40 billion a year in wages on these cards by businesses ranging from major retailers to mom-and-pops. Here I’ll give a sketch of why I think that any payments like this constitute wage and hour violations, both in principal and in practice.

I. Requiring workers to accept payment in prepaid credit card format is not paying them “wages” within the meaning of 29 USC § 203(m) and 29 USC § 206(a)

The Fair Labor Standards Act (29 United States Code) is the flagship USC provision on minimum wage, setting the $7.25/hour minimum and defining who’s exempt – tipped workers mainly. To wit, at 29 USC § 206(a):

“Every employer shall pay to each of his employees… wages at… $7.25 an hour.”

Emphasis added. Suppose that, instead of counting off a five, a couple of singles, and a quarter in cash every hour and putting it in your pocket, your employer decided to press a button on a payroll website and change around the numbers on your bank account and hers at the same time – still wages? Uncontroversially yes; electronic wage transfers are easy cases of legal “non-cash” wages. But suppose instead that your employer, instead of giving you either cash or direct deposit, gave you a stack of baseball cards whose net market value averaged out to $7.25, in exchange for an hour of work – still wages? Uncontroversially no; company scrip is dead and employers do not get to unilaterally substitute goods of dubious “real” value for cash. So what about the fuzzy cases in the gray area between the uncontroversial poles – cases like prepaid, fee-laden payroll cards issued in an employee’s name?

For purposes of wage and hour laws, prepaid credit cards are more like a stack of baseball cards than like an electronic direct deposit. Drawing the distinction requires looking at what the relevant distinction is, for wage and hour purposes, between an electronic direct deposit and a stack of baseball cards.

The relevant difference is the cash-like quality of direct deposit versus the non-cash-like quality of a stack of baseball cards, and the wage and hour laws agree. The definition of “wages” in the Fair Labor Standards Act is contained at 203(m), and wages are defined only for the purpose of separating minimum wage-exempt tipped workers from non-exempt non-tipped workers, and in allowing that the Secretary of Labor has the right to determine the value of things like room and board paid in lieu of wages. But the interesting part of the definition of wages here is its emphasis on “cash” for determining how much money a tipped worker should be paid. Tipped workers are allowed to be paid less “wages” than non-tipped workers, where:

“the amount paid such employee by the employee’s employer shall be an amount equal to… the cash wage paid such employee [plus tips]…”

Emphasis added. Now, 29 USC does not define “cash,” but I think that we have a pretty good understanding of why “cash” is the preferred method of compensation. So is a pre-paid credit card cash-like, like a direct deposit, or is it non-cash-like, like baseball cards?

Baseball cards aren’t cash-like because their value is uncertain. There is a specialized market for them that has certain barriers to entry and exit. You can’t trade them into a bank and get a roll of quarters back in value equal to the value of the cards. You have to do something with them before you can buy anything with them, stores and banks are free to decline them as “legal tender” at their leisure. Third-party players control their value, not the state. And a pre-paid credit card is clearly much more like this than it is like cash.

  • The value of a pre-paid credit card is highly uncertain. If you have a prepaid card with $50 on it, you’d think you’d be able to buy $50 worth of groceries with it – unless the store doesn’t accept that brand of card, or doesn’t have a card machine. You might lose value on it just by doing nothing whatsoever with it, with an “inactive account fee.”
  • There is a specialized market for them that has certain barriers to entry and exit. There are fees to open an account or move money from the card to an existing account. As noted in the fee schedule I showed you above, there’s even a fee to close your prepaid card account in some cases, or to cash it out. You have to pay money just to get rid of the damn thing!
  • You can’t trade them and get a roll of quarters back in value equal to the value of the cards because the fees built into the card will give you your roll of quarters minus the costs imposed independently by a third party.
  • You have to use the card somewhere, activate it, call a number, sign a form, etc., before you can buy anything with them, and no store or bank in America ever has to accept them as “legal tender.
  • And most importantly, the value of the card is determined by a third party, not the state, not the Federal Reserve. What if you get a prepaid Citibank payroll card, and Citibank goes out of business tomorrow? What if Citibank spins off its payroll card service and they start changing around the fee structure after you get the card? What if Citibank spins off its payroll card service and the new company decides that its not going to honor any previous cards?

These are all problems that you have with non-cash instruments that you do not have with cash instruments like cash, checks, or direct deposits.

On this analysis, paying a worker with a prepaid credit card is the baseball card/company scrip model – which is to say, not paying them. A prepaid credit card is illiquid. Its value might drop to zero if Citibank or whoever else administrates or issues the cards goes bankrupt or spins off the division under new conditions. The fees might change. The fees exist at all.

There is caselaw supporting the position that the law treats illiquid, non-cash compensation fundamentally differently from liquid cash or cash substitutes. Smith v. Woodward (2003 WL 23537985) is one of a plethora of cases illustrating this crucial point. Smith, a cattle man, agreed to do work for Woodward’s cattle ranch for a “$2,500 per month labor credit for labor provided.” (Emphasis added by the court but present in the decision.) Woodward ended up paying Smith with $1,000 cash and $1,500 worth of “cattle care services,” and ultimately claimed to the Oregon court that Smith had received his full remuneration since he had received $2,500 in “total value,” but the court disagreed, and found a wage and hour violation. “Cattle care services” are highly illiquid. If you contract to pay someone $2,500 a month, you owe them $2,500 a month, not 2500 “somethings” a month.

A case that shows the same issue from the opposite side is American Airlines v. United States, 204 F.3d 1103 (2000). Hailing from the strange land of tax law, this case saw American Airlines losing an IRS audit over American Express cards it had given to its employees as bonuses following a sudden uptick in business. Airline crews were given $50 vouchers but did not back out taxes from them or report them as payroll taxes, so the IRS pounced and won its case. Sounds like a point in favor of payroll cards, right? Wrong – the only thing that won the day for the IRS was the total liquidity of the American Express cards. The vouchers were good anywhere, they did not specifically name their recipients, they had no fees associated with them, and they were freely transferable. In the court’s own words:

We hold that… the vouchers constituted a cash equivalent benefit. The vouchers were blank American Express charge forms, bearing American’s account number, and in an amount “not to exceed $50.” The vouchers did not contain the employee’s name or any transfer restrictions. Further, although the letter accompanying the vouchers stated that they were only good at restaurants, there was some evidence that they could be used at non-restaurant business establishments. Even if the vouchers were only valid at restaurants, however, they would still be cash equivalents given the lack of restrictions on their use and transferability. According to one of American’s witnesses, the vouchers were essentially bearer paper.

Emphasis added, id. at 1112-1113. “Bearer paper” is basically what a physical check becomes when you endorse it – good as cash for whoever physically holds it. These cases drive home the central thrust of the wage and hour laws’ insistence upon “wages” being paid as “cash,” and “cash” meaning liquidity. Prepaid payroll cards are not that. Prepaid payroll cards are fee-laden, non-transferable, tied to a specific person, without fixed value. Worse, they are often imposed on employees from above as the sole means of compensation, and even where they are not strictly required by the employer, the opt-out procedures are often so complicated that you’d need a JD just to get through the cover sheet.

Unlike an agreement with your bank that gives you a penalty for using certain ATMs, an agreement with your employer is restricted by the Fair Labor Standards Act and all other wage & hour laws. You are free to contract for whatever bizarre fees and penalties you want with your bank only within the confines of your imagination, but you are not free to contract as such with your employer. Even if the only alternative is unemployment and utter poverty, you are never free to contract to work for less than minimum wage, or to voluntarily de-exempt yourself from overtime laws.

II. The fees on payroll cards constitute illegal deductions from paychecks within the plain meaning of 29 USC § 206 and they frustrate the purpose of 15 USC § 1671

Except as specifically allowed or required by law or a court order, no deductions are permissible from paychecks. If you agree to work for a certain amount of money, then receiving anything less is wage theft – a breach of contract by your employer, and an act of conversion and theft, unless you’ve been told that you’re getting a pay cut.

There are some kinds of deductions from your paycheck that you should expect, that that your employer is required by law to deduct in most cases. This is your FICA, Medicare, Medicaid, and Social Security. Often this also includes state taxes. Sometimes the deduction is required by a court order – sometimes in bankruptcy, divorce, or child support arrangements, the court will permit an adverse party to take money directly from your paycheck, and these deductions are legal. The Wage and Hour Division of the Department of Labor has provided a helpful fact sheet spelling out an exhaustive list of all other times that an employer may lawfully make deductions from paychecks:

  • when an employee is absent from work for one or more full days for personal reasons,
  • sick days without a sick day policy or with a policy that limits sick days,
  • jury duty, adjusted for certain state-required compensation,
  • fees imposed for violation of a good-faith mjor safety rule with the usual notice requirements,
  • unpaid disciplinary suspensions per an established policy,
  • when you start or end the job partway through a pay period,

and one not on the Wage and Hour Division’s list that is specifically created by the National Labor Relations Act,

  • in accordance with the terms of  a collective bargaining agreement subject to the usual minimum wage and overtime laws.

And that’s the complete list. The Department of Labor has always articulated a ruthlessly exclusionary policy that no deductions are legal unless we specifically say they are; it isn’t a list that says “these are examples of legal deductions and so stuff like these are legal,” it’s “everything but these specific things are illegal.”

Now imagine that one day you get your paycheck and you notice that some amount – a tiny amount, maybe just fifty cents – is backed out of your check for “CWC.” You go and ask Boss about the CWC deduction and the cheerful reply is: “Check-Writing Cost, my dear employee. Every pay period we have to go through a whole book of checks just writing paychecks to you guys, so to cover that cost, we’re going to bill you for the price of a paycheck. I mean, come on, its just fifty cents – even on a minimum wage job, fifty cents is just pennies a day!”

Unambiguously an illegal deduction. Unless you have a collective bargaining agreement or have otherwise specifically contracted to let your employer back out the “CWC” and taking out the CWC doesn’t put you below minimum wage or below any overtime pay you’re guaranteed, your employer does not get to dip into your paycheck and just take that money out to cover the cost of check-writing fees.

So when I read a justification for payroll cards like this:

Companies and card issuers, which include Bank of America, Wells Fargo and Citigroup, say the cards are cheaper and more efficient than checks — a calculator on Visa’s Web site estimates that a company with 500 workers could save $21,000 a year by switching from checks to payroll cards… A Victoria’s Secret employee… said it cost her $1.50 just to transfer money from her Citi payroll card to her checking account…

all I can think is, “CWC!” The Victoria’s Secret employee is directly compensating her employer for the employer’s check-writing cost with money that comes straight from her paycheck; the employer has shifted its own costs into the employee and the employer knows it, even though the cost-shifting would likely turn a minimum wage worker into an employee of a wage-violator.

And make no mistake – a fee imposed on making withdrawals from a prepaid payroll card just for getting access to your earned wages is, as an economic reality, identical to a direct paycheck deduction. The employer has just added a single step on top of writing CWC on the pay stub and unilaterally backing out a small but non-zero sum: they’ve had the card’s administrator or the bank write it for them on a card statement instead of a pay stub – but then, since the card is the payment, is there really a relevant distinction between a card statement and a pay stub for employees who get paid with payroll cards?

If the language of the Wage & Hour Division’s guidelines or the National Labor Relations Act aren’t sufficiently precise, then there remains a clearly-articulated public policy against aggressive or needless damage done to workers’ net take-home pay elsewhere in federal law. Title III of the Consumer Credit Protection Act at 15 USC § 1671 clearly lays out Congress’s desire to protect paychecks from excessive garnishment, whether by the state or by private parties:

The Congress finds:
(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.
(2) The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.
(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.

Now, in fairness, the Consumer Credit Protection Act had direct paycheck deductions to creditors in bankruptcy as its specific targets in mind, but the policy objective is clear and unmistakable: the power of private parties to predate upon employees in the form of wage attachments has grown far too powerful, and that we have good reasons to want to restrict the power of private parties from taking money, even money owed according to the terms of good-faith contractual obligations, out of workers’ pockets.

An agreement between an employer and an employee to receive compensation through a payroll card is exactly the kind of predatory consumer transaction at the heart of the anti-excessive-garnishment regime imposed by the CCPA. The employer and the employee are both private parties making private arrangements for goods and services that impose a de facto garnishment on a worker’s paycheck. Even where that garnishment comes to just a few dollars per pay period, the brunt of this garnishment is disproportionately born by the class of workers most vulnerable to the lost of even a few dollars here and there: the minimum wage or low-paying hourly worker in overcrowded labor markets like retail or food service.

Neither the CCPA nor Fair Labor Standards Act provides a precise definition of what constitutes a “garnishment” except to say that they usually come from the state or from a law, usually tax law. But the laws are very clear about what constitutes a deduction, on the guidelines provided by the Wage and Hour Division’s circulars cited above, and it cannot be seriously argued that there is a major distinction for purposes of minimum wage violation analysis between a “garnishment” by a private company in the form of punishing employees to the tune of a few dollars a pay period just for using a payroll card and a “deduction” in the form of an employer essentially billing its employees for the cost that the employer would normally bear in writing checks or making direct deposits. It is the evil of cutting costs from the coffers of employers and shifting those costs to an employee’s pockets that lies a the heart of a slew of wage and hour laws, not the list of which are the FLSA and the CCPA.

Similar policy articulations abound throughout wage and hour laws and the caselaw interpreting them. Employers can pay tipped workers a pitiful $2.13 an hour – unless the tips don’t get the employee up to minimum wage, at which point the employer pays the difference. Employers can make you pay for the price of getting your uniform cleaned, or can make a security guard pay for his gun – unless the total expense puts the employee below the minimum wage. Nobody is exempt from overtime pay or from the minimum wage – unless the law specifically says so, at which point, the minimum wage is a non-negotiable duty owed to employees.

The unmistakable footprint of this policy abounds in the wage and hour laws. The entire regime of employment law orbits the proposition that one hour of an American’s time is worth not less than $7.25 an hour to an employer. Under the payroll card system, America’s lowest-paid workers find themselves on the receiving end of “fees” serving an economic function identical to illegal wage deductions to cover the employer’s costs of managing a fair, legal payroll system, in open defiance of a clearly-articulated public policy to the contrary – to the tune of $40 billion a year and rising.

III. And if there isn’t already, there ought to be a law forbidding the practice of paying with fee-laden, highly illiquid payroll cards

It is possible that this analysis is all insufficient to establish the case I want to make, that the only reason we’d ever have to think that Congress intended for the minimum wage to truly be $7.25/hour is if it somehow said so more clearly than in the bevy of statutes cited herein. If such is the case, then at the very least it is an essential and imminent public concern to produce legislation clearly forbidding the practice of “paying” workers with non-cash, highly illiquid, fee-laden, wage-draining privately-issued bank scrip instead of money.

The last several decades have seen a relentless assault on the lowest-paid American workers. The courts have almost completely eliminated the power of workers to join together in class-action suits to levy their grievances en masse, in suits that by themselves are too small in winnings and too big in factual complexity for it to be worth any competent lawyer’s time. Wages are stagnant against skyrocketing employer-side profits, and the minimum wage is now so low in terms of real dollars that the minimum-wage worker typically qualifies for food stamps – Wal-Mart is so embroiled in this reality that it even has programs in place to help its workers get on EBT. Meanwhile, years of carefully-calculated public opinion assaults have driven membership in unions, the only social force that has consistently given workers a prayer of balancing the overwhelming lopsided power employers have over low-wage or unskilled workers, to historic lows, and it has taken a near-total collapse of the American middle class to get union favorability back above water. Workers have been told that discrimination is over, that the gender pay gap is motherhood’s fault, that unions are all mafia fronts, that your employer has a divine right to read your social media posts and monitor your email, that business efficiency is all that matters, that those with the hungriest waistlines must tighten their belts the hardest, for decades, and now we have come full circle to the point where employers are issuing private currency systems, for their own benefit, as “compensation” to the economically-powerless underclass they have tired so hard to create.

There is a law. There are several laws. I have cited a small fraction of them here, a smaller fraction still of the case history, showing unmistakably that the payroll card system is an intolerable affront to everything that American wage and hour law stands for. But if somehow when the dust settles from the increasing public and state attention that payroll cards are receiving and the cards remain intact, then our leaders must be petitioned to look back to the days of company towns sustained by company scrip and say “never again!”

Is the bar exam pseudoscientific?

July 9, 2013

Ah, July. The sun is shining, the flowers are all in bloom, it is a time of vacation and warm beer, a time where slower clocks strike happier hours… except for the thousands of recent and not-so-recent law school graduates (and congratulations to all of y’all) around the country who locked in libraries studying for the Multistate Bar Exam and, more or less universally, at least one state’s version of that test. The MBE and its state equivalents are, for first-time takers, required in most jurisdictions to get the right to practice law in that jurisdiction (though once you’ve passed the bar in one state, you can often gain admission to the bar of another state by motion instead of by examination), which is to say, passing the bar the first time around is of the utmost importance to law school graduates. The oncoming train of massive student loan payments, measured against the time that is lost and the new debt that is incurred in preparation for the MBE, have even led some states to call for the abolition of the bar exam, or at least, to let law school students take it before graduating. 

The bar prep process is a long and arduous one; in a way, the entirety of law school is a form of bar prep. Institutions both public and private run bar preparation courses that can run students thousands of dollars, and the fees for the exam itself, just for the application to take the bar, put hundreds of dollars on top of that – fees that you don’t get back if you fail. But what is it all for?

Ostensibly, the goal of the bar exam is to ensure that only competent practitioners are able to advertise and provide their services, under the auspices of the National and the fifty state Bar Associations. The goal seems worthy enough to me – I rather enjoy the prospect of not competing with incompetents, and enjoying at bar association meetings only the mighty company of titans of legal acumens. Except, of course, that such is not the case. Cretins abound in the legal profession, as any lawyer, cretinous ones included, will tell you, and the ranks of the MBE’s failure include powerful career success stories  ranging from Kathleen Sullivan and John F. Kennedy to Michelle Obama and Hilary Clinton. Evidence both anecdotal and empirical such as the success stories cited above show it to be plainly false that the MBE screens out bad lawyers and admits only good ones.

There is shockingly little data available on whether or not the MBE or any particular state bar exam actually correlates with career success, though what data does exist shows a sort of self-serving prophecy at work: given that bar exam failure delays the start of a career by many months until the next exam date, and that no law firm has any reason to hire someone who has not passed the bar, bar exam passage really does have some correlation with career success. So it seems unsurprising that advocates for the MBE could say that MBE success accurately predicts a certain level of career success; career success isn’t even possible until MBE success is had!

What should be more troubling for any consideration of the MBE is that failure is statistically a greater affliction of the non-white and the non-male than for the white and the male. I have a difficult time imagining any reasons of any academic or jurisprudential virtue that  would cause a supposed test of legal competence to disproportionately disqualify those who are merely demographically different from the last generation’s lawyers. Perhaps, however, since the MBE reflects systemic problems in American law itself, problems that build institutional barriers to non-whites and non-males.

But this, too, is empirically known to be untrue, since the available evidence suggests that MBE passage rates has remarkably little to do with what is actually taught at law schools. Unless we are really willing to swallow the proposition that more is taught in eight-week bar prep crash courses than in the entirety of the rest of law school, this I think raises the troubling possibility that the MBE, whose success does correlate strongly with LSAT scores though the LSAT has nothing at all to do with the law according to a study cited above, is actually a measure of the kind of intelligence that the LSAT itself measures.

The LSAT does a remarkable job of predicting law school performance. Law school performance strongly predicts bar exam results (along with gender and race). Gender and race track to LSAT scores almost precisely as well as they do for the MBE. Yet while the MBE tracks well to overall law school performance, it does not track well to what one actually studies in law school – whether one studies bar-intensive subjects like contracts and constitutional law or more esoteric bar-unfriendly courses like entertainment law or the laws of war does not have a significant impact on MBE performance. So what is the MBE actually measuring? Is it measuring anything other than general “intelligence” where “intelligence” is defined as “an ability to succeed in law school?”

And do we want lawyers who are good at law school, but whose actual abilities to be lawyers are, as a statistical fact about the MBE, completely unknown?

Stranger still, the MBE is basically a gatekeeper to state and national Bar Association membership – yet those organizations do not, strictly speaking, exist to discipline or screen out bad lawyers, but rather unethical lawyers. Bar associations technically have no jurisdiction whatsoever, but as a practical matter they are the ethicists and comptrollers of the legal profession; bar associations punish for accounting shenanigans and violations of ethical rules, but only legislatures can properly create actual crimes, even where the legal profession is concerned. And genuine incompetence is actionable only by bar associations when it amounts to a matter of ethics, when it would actually be immoral to let a person continue to practice based on a history of misrepresentations or false promises, not on how many cases somebody has won or lost. So the MBE supposedly (but I think, as I’ve shown, falsely) promises to screen incompetent lawyers from entry into an organization that has no power whatsoever to punish lawyers for general incompetence.

Based on the evidence that I’ve prevented here, the multistate bar exam is by many relevant measures pseudoscientific. It is circular and self-fulfilling insofar as the success it measures is governed by success on the test itself. It claims to be a measure of competence at law but has statistically significant gaps in success based on factors that are utterly irrelevant to legal competence, such as gender and race. It tests something that bar associations have no technical ability to even control for post-passage, which is actual success. And yet as we speak, there are thousands of young Americans around the country cramming for it as if (because?) their careers depended on it. Quality controls of are the utmost importance in the legal profession, but unfortunately, we have too many good reasons to suspect that the MBE is not even giving us that.

Sedlock v. Baird: when is a religion not a religion?

July 3, 2013

It’s nice when improper religious advocacy in public school is easy to spot. Teaching creationism, making students pray or recite creed statements, slapping crosses on the walls, those just make for easier cases. If “under God” in the pledge could ever get past the “standing” issue, I think that, too, would be a no-brainer case.

Then there are closer cases. A secular Bible history class, but where the teacher insists on using only the King James version of the Bible to all others – or, insists on exclusively teaching the Catholic apocrypha. A science teacher teaches the evolution curriculum to a T, but does it while rolling her eyes the entire time. “Purity rings.” These are the cases where real doctrine-making gets done, where there are actually cases to argue about.

The Superior Court of California (San Diego) just gave us a hard case that sounds like an easy case, Sedlock v. Baird: teaching yoga in public school gym classes is, apparently, not “religious indoctrination.”

For probably about 99% of the Americans who practice yoga, yoga is a form of exercise – at the most, a hybrid of exercise and meditation. Some of the verbiage surrounding yoga, like bringing out one’s “inner spirit,” or reciting “mantas,” greeting instructors or other pupils with “namaste,” are essentially cultural niceties that have no religious connotations whatsoever. Much like Buddhism, yoga’s importation to the West came with a considerable amount of secularizing, at least where the ordinary practitioner is concerned. Most people who practice yoga probably have just a peripheral awareness that yoga-as-exercise has its origins in yoga-as-religion, as a devotional practice in many forms of Hinduism.

The children of Encinitas Union School District’s public schools are required to take a certain number of hours of physical fitness every school year, and last year the District received a grant from something called the Jois Foundation (which, judging by its website, is a pretty small operation) to use yoga as the school’s primary means of physical fitness. Students whose parents were offended were allowed to opt out; there’s a factual dispute about whether or not those students received an alternative physical fitness program that satisfied the same hourly requirement, but lets put that aside for the moment and talk about the real issue: when is yoga fitness, and when is yoga religion?

The article cited at the top of the post with the news of the ruling is, I think, unfairly condescending to the plaintiffs in this case. The plaintiffs are fundamentalist Christian parents, which doesn’t help their case since it makes it easy to contextualize them as hysterically overreacting, but I’m not as certain as either the Honorable John S. Meyer, who decided this case, or the editorial above’s author.

Doing yoga by itself as exercise makes sense – I’m not a yoga practitioner myself, but I’m not going to seriously dispute that yoga has fitness value. But what I do dispute as having fitness value value are such things as mandala painting, healing prayer, extra credit for properly performing devotional hand gestures, posters depicting Hindu gods with Hindu theological terms written on them, all taught by private yoga instructors of dubious certification. I can’t quite figure out how, even if contextualized as “cultural trappings,” such things are at all appropriate in the context of physical education.

In fact, much of the dismissive verbiage in the op-ed that related this case to me quite distressingly mirrors similarly dismissive language that the Christian right uses to defend its own religious agenda for public schools. “‘Under God’ isn’t a religious marriage, it’s just American cultural trappings!” Ditto Bible readings, school prayers, prayers at graduations or sports games, ditto Ten Commandments on the walls and “theology” lessons or “alternatives to evolution” that always end up sounding like long-form Books of Genesis.

The “cultural trappings” of Hinduism are just as unconstitutional as the cultural trappings of any particular religion in America’s public schools. The knee-jerk reaction to the evangelical Christian plaintiffs in this case is understandable, since this is certainly one of the most martyr-complexed demographics in the body politic; to paraphrase Bertrand Russell, there are few critters on this Earth happier than Christians who think they are being oppressed. But in this case, we shouldn’t be too hasty to side with anything-but-Christianity because anything-like-Christianity is barred by a century of Constitutional jurisprudence and by the wisdom of the secularists who founded this country.

The gay marriage decisions, part 2: Hollingsworth continues an uncomfortably strong reading of the ‘standing’ doctrine

June 28, 2013

Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).

Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.

“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.

The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.

But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”

Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like WindsorHollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.

The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:

The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way  around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.

The gay marriage decisions, part 1: Windsor is a huge win for LGBT equality, but it’s a far cry from past great progressive victories

June 27, 2013

Today’s simultaneous rulings on gay marriage are, unequivocally, huge wins for marriage equality. Hollingsworth v. Perry, which concluded that the appellants lacked standing to bring the case and that therefore neither the Supreme Court nor the 9th Circuit should have heard the appeals defending Proposition 8 in the first place, and United States v. Windsor, which concluded that the federal government cannot deny benefits related to marriage based on same-sex status, are watershed decisions in the history of LGBT equality.

That being said, some troubling questions certainly remain, from both cases. There’s a lot to absorb from these cases, and so I’m going to split the cases over two posts. Part 1 is going to be Windsor, and next time, we’ll cover Hollingsworth.

We’ll start with the big one, Windsor, which gutted the Defense of Marriage Act, essentially declaring that the federal government cannot deny federal marriage benefits based on sexual orientation. In the run-up to decision day, some authorities were comparing Windsor to the game-changing Brown v. Board of Education, which essentially abolished segregated schools nationwide (legally speaking; actual integration took several years longer). The great strength of Brown v. Board was its uncompromising federalism: it gave no quarter to that most celebrated euphemism for the right to discriminate, “state’s rights,” and so forced the country into a truly national step forward. No ambiguities, no ifs, no buts.

Likewise with other great progressive judicial triumphs like Roe v. Wade and Loving v. Virginia. The strength of those cases was not that they created new restrictions on the federal government. No, those cases have stood the test of time and been burned into the brains of Con Law students everywhere for decades because they recognized new fundamental rights in the peopleRoe didn’t just say that there could be no federal ban on abortion, it said that no arm of the government could restrict the access of American women to abortions (on a trimester test that has since been expanded, but, lets not get ahead of ourselves). Loving didn’t end the federal government’s power to ban interracial marriage, it ended Virginia’s, and by extension, all other states. When it comes to protecting human rights, federalism is universally a better approach than the 10th Amendment fanaticism that has consumed American jurisprudence in the last ten years, and Windsor is a great example of that.

Windsor comes with substantially more qualifications than past great progressive triumphs. The first qualification is that no new gay marriages have been created or recognized by Windsor. On the absolute strictest possible reading of Windsor, one section of the Defense of Marriage Act, that part amending the so-called “Dictionary Act” which defines thousands of terms of federal law to specifically define “marriage” to exclude same-sex couples, is unconstitutional, but nothing else in this entire field is unconstitutional. The majority of states still have state Constitution bans on gay marriage and there is no language in Windsor specifically eliminates any of them.

In fact, there is troubling language in the majority opinion that seems to specifically create a right in individual states to continue to deny equality to same-sex couples. Quoting the majority:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.

I’ve bolded some of the sections that I find disturbing. It addresses itself entirely to a top-down attack on DOMA as discriminatory, not a bottom-up recognition of a fundamental right of gay Americans to get married. The decision seems to say that the federal government is prevented only from denying recognition to those marriages deemed legitimate by individual states, not that state bans on gay marriage are unconstitutional. This is a massive step back from the principles of federalism that ended segregation, that has kept church and state separate, that for the hundred and fifty years since the Fourteenth Amendment has put a bridle on that great engine of regression, “states’ rights.” This is a savagely curtailed version of rights jurisprudence, one which says that the federal government is the only kind of American institution that bears the burden of obeying the Constitution.

Windsor is a powerful referendum on the opponents of marriage equality, but it is just as much a referendum on progressive federalism. One might want to object that Windsor only speaks to DOMA and federal law because those were the only ones on the table, but progressive courts in the past haven’t been afraid to turn referendums on state issues into condemnations of those issues nationally – Roe, Loving, and Brown, even great cases from First Amendment religion jurisprudence from Abington Township to Lemon were all appeals from either state laws or state decisions that were instantly turned into national positions by the power of progressive federalism.

No state can deny your right to an abortion. No state can deny your right to an interracial marriage. No state can make you pray. But states can deny you the right to get married – and this court doesn’t say how far the state’s power to restrict that right goes. That is because progressive, federalist courts in the past have had the courage and wisdom to expand the Constitution’s guarantees as soon as the opportunity arises, not waiting for narrow procedural grounds in future cases (and believe me, there will be future cases) to give them the opportunity.

The decision here is so narrow that it even permits states that do not extend the courtesy of common humanity to same-sex couples to deny the existence of other states’ marriages. This radically contradicts the mainstream interpretation of Full Faith and Credit, creating a vicious internal inconsistency in the ruling itself. States are supposed to give full faith and credit to the judicial proceedings of every other state. According to Windsor, marriages, as adjudicated by the states, control over the federal government’s desire to deny federal marriage benefits to same-sex couples because marriage is something like a fundamental right. And yet, also according to this ruling, states do not have to give full faith and credit to the judicial proceedings of every other state where marriage is concerned. If I get divorced in New York and flee to Florida, is Florida likewise free to deny the judicial validity of my divorce? If not, why not?

This case is a huge symbolic win, but leaves a lot to be desired. Every state gay marriage ban that was on the books last week is still on the books. A win on the federal level is, don’t get me wrong, a tremendous win – and a contrary ruling would have been an absolute disaster for LGBT equality. But the ruling could have gone so much further, and still leaves the court dragging out the issue until a real challenge to a state ban on gay marriage comes before it. Windsor is a call to action for LGBT equality, to take the fight to state houses everywhere, or to Congress and the Senate, to work new cases challenging state gay marriage bans up the court system – because, unfortunately, it far from ends the battle.

Unfortunately, Hollinsworth v. Perry, the California Prop 8 appeal, is not that case. But next time, I’ll go through that case in greater detail, and why I find it, too, to have some glaring flaws that should leave all progressives troubled at the direction the court has gone lately.

Food warning labels for GMO products are inherently deceptive

June 20, 2013

Imagine that you, an ordinary American consumer, are out shopping for groceries. You, like most savvy consumers, prefer to get the best deal you can – best product for the best price. But because it’s food you’re shopping for, safety is a huge factor in determining which foods are “best” for you and your family. Imagine that you see the following warning label on a product you might otherwise like to buy:


Scary, right? Certainly not something you’d be comfortable giving to your family to eat. And how relieving it would be to see the reverse kind of label on a competing product:


No brainer, right? You’d probably spend a few extra cents or dollars on a product that looks the same but that just sounds safer – even if you didn’t know what dihydrogen monoxide was, the fact that they felt it necessary to warn you about it makes you suspicious.

Of course, “dihydrogen monoxide” is merely water. But, if weren’t aware of this particular prank, that first label could look kind of scary to you, right? And the one after just looks so inviting, by contrast. So if you, the consumer, saw the labels alone, but didn’t really know what they were warning about, you would be perfectly justified in being bothered by the first one, and tempted by the second one. It would influence your buying decision for reasons that might be totally opaque to you.

There are a lot of perfectly valid warning labels on food products for safety reasons (“gluten-free,” “contains nuts”) and labels on other kinds of products that might otherwise give a consumer useful information that she’d want to know when buying that product (“Made in USA,” “Not from concentrate”). But now there is a push from lobbyists for the organic-food industry to compel grocers and manufacturers to label products that say “Contains GMOs.” (Genetically-modified organisms)

We don’t yet know what the hypothetical labels for GMO-containing food products would look like, but I somehow doubt they’d have the same kinds of colorful illustrations that non-GMO product makers put on their foods. The second label above is representative of the somewhat deceptive advertising strategy of non-genetically-modified foods, though I’ve admittedly dramatized the plant and the butterfly. It creates a sense of comfort in the consumer, a sense of relief about a product that the consumer presumes to be somehow superior. But there’s no equivalent to the first label, the scary warning label – yet.

Maine and Connecticut have already passed laws requiring stores to label GMO products, but thanks to lobbying from grocers and manufacturers, those laws contain provisions keeping them from going into effect until a certain critical mass of other states pass similar laws. And it looks like Massachusetts is going to be next.

So, should the state compel grocers and manufacturers to “warn” consumers about GMO foods?

Proponents have an easy job here. I mean, it’s not like the labels are technically lies – many foods really do contain genetically-modified organisms, and many consumers probably would want to know which do and which don’t. So what’s the problem?

Consumer protection is one of the most valuable roles of the state. The state compels businesses to protect the public, either by making its products safer or by providing information that they would want to have for their safety, because the free market simply won’t do it on its own – it never has, anyway.  But manipulating the machinery of consumer protection  for pure propaganda purposes sets a bad precedent in an age where corporate interests have unrivaled access to the government.

The valid role of consumer protection is to provide accurate information about the safety of certain products or to otherwise provide information that speaks to valid consumer concerns (“Made in USA” or “Made in China” is the classic non-safety-related valid consumer concern). But there’s a huge difference between warning people about an actual danger in food, and creating unwarranted fears about competitors’ products. Food warning labels for GMO products are inherently deceptive because they automatically (and I think deliberately) create an impression in the mind of the consumer that GMO products are dangerous, even if the warning labels don’t say so explicitly. They don’t protect the consumer from any information, they don’t speak to a valid consumer concern, they instead validate an unfounded growing public paranoia over perfectly safe, healthy foods.

And lets be clear – any fears about GMOs are unwarranted. The American Medical Association, the World Health Organization, the National Academy of Sciences, the European Commission’s European Research Area, even academic parties like the University of California, are among the many thousands of ruthlessly empirical voices that have verified that GMOs aren’t just not bad for you, but that there are many reasons to think that they’re actually a better investment than unenhanced foods. Higher crop yields, better nutritional density, certainly nothing that would make you want to put a warning label on something.

Misleading consumers about the dangers of your competitors’ products is bad enough, but it’s just a part of business. It makes good economic sense to wage private battles against your competitors through clever, if not entirely honest, marketing. But it’s much worse when you use the machinery of consumer protection to do it for you, at the expense of the taxpayer and at the expense of the integrity of the consumer protection system. The role of consumer protection is consumer protection, not corporate advocacy. What the non-GMO lobby is pushing for is the incorporation of the state’s consumer protection interests into its own marketing agenda, not protecting the public from a valid health concern.

Furthermore, consumers who have pseudoscientific attachments to unenhanced foods, or similarly pseudoscientific aversions to GMOs, already have plenty of very visible alternatives. Organic food makers are always happy to slap their eye-catching labels on their products as they can. There are entire stores dedicated to non-GMO food products. Every consumer who wants to know the difference knows the difference already, and those consumers who don’t are apt to be misled by the mere existence of a “warning” label into believing that there’s something real to be warned about. And that’s fine – I have no problem with non-GMO food producers from playing up their marketing strategy all they want.  That’s business, that’s markets doing what they do. What bothers me is the scary prospect that, with a sufficiently savvy marketing strategy, they can get the government to spend your tax dollars doing it for them.

Consumers have somehow lost sight of the fact that non-GMO foods are still made by businesses that are in what they do for the money. And their marketing strategy is working just fine on its own – everybody hates Monsanto, everybody feels warm and fuzzy about organic foods. They don’t need the state, using your tax dollars, to wage another volley in their marketing war on GMO foods, especially at the expense of the integrity of the valuable consumer protection process.

Deception is more than just straight-up lying to people. Deception can be done by insinuation, which is precisely what a “Warning: contains GMOs” label is. It is an invitation to fear something based on no evidence but lots of feelings. The market is what should be deciding whether safe, healthy GMOs or safe, healthy non-GMOs end up on the dinner table, not the government. The legitimate policy goals of consumer protection are far too important to sacrifice in service of the narrow interests of the organic food lobby, and warning labels that rely on nothing but innuendo are the first step towards a scary future where lobbyists can get the state to wage corporate marketing battles.