Monday, February 28, 2005

A Fabulous Proposal

Somehow, one of the most critical issues facing our country right now is the possibility that people might marry someone of the same gender. Forget unemployment, health care, or education. The real problem is that there are guys who want to marry guys.

While a few people are willing to acknowlege that they're just being mean-spirited and don't like gays or lesbians, most try to cloak their position in more "rational" arguments. These tend to fall along two lines: homosexuality is religiously or morally wrong, or gay marriage will destroy the concept of the family.

The religious argument seems to get less play. Hopefully this is because people realize that legislation resting on strictly religious grounds doesn't stand a chance under a First Amedendment challenge. It is worth noting, however, that the state can't force any church to perform a religious ceremony against that church's doctrine. That is, after all, part of the motivation for the First Amendment.

Regardless of the arguments, the motivation seems to be the same: bigotry. Claims that gay marriages are more likely to end in divorce or that gay households are bad for children are not borne out by statistics. If any heterosexual couple can go to a drive-through chapel in Las Vegas to get married on the spur of the moment, this clearly signals a greater degradation of the institution of marriage than gay marriage could ever cause.

When we speak of "marriage," we are really speaking of three separate things. The first is of a religious rite and the (supposedly) life-long bond it creates. The second is as the basis for the family. The third, and typically least considered, is a legal status. As discussed above, the religious aspect of marriage is irrelevant when considering marriage from the perspective of the state. If religion held dominance, then interfaith marriages would not be legal.

There is, of course, a historical argument for the status of marriage. It has traditionally been a religious institution sanctioned by the state, conforming to the laws of the church. We must remember, however, that the state and the church were intimately tied through most of history, so we cannot determine with any certainty what original motivation there was for marriage. We might suppose, from some ancient descriptions as well as the way that marriage is still treated in some societies, that it was essentially a way of defining property.

Marriage, as it relates to the family, has changed greatly through time. Where it was once considered the precursor to having children, it is becoming increasingly common for couples to have children without getting married or for couples to get married and not have children. Family is, after all, defined by relationships and not by ritual (the status of minors notwithstanding).

From the perspective of the state, marriage establishes a set of rights and obligations between two adults. These include tax benefits, hospital visitation rights, insurance coverage, inheritance rights, and more. These rights protect a dependant partner against the death of the primary earner; this protection is denied a same-sex partner, even when the couple would be considered common-law married if they were of the opposite sex.

The state is fundamentally incompetent to judge the quality of and commitment to a relationship between individuals. With opposite-sex couples, it takes for granted that if they are willing to testify that they're in a committed relationship, then they are. This respect is denied to same-sex couples, and is in essence an insult to same-sex couples.

The crux of the problem could be that "marriage" has too many common meanings in our society. If we used separate terms for the religious and state aspects, then perhaps gay marriage would become less controversial, at least in the realm of secular politics. This would require all states as well as the Federal Government to replace "marriage" with, say, "civil union" in all relevant laws. The acts of civil marriage and religious marriage are already distinct, and while the majority of people have both, neither requires the other.

By defining marriage and civil unions separately, more people might begin to see the injustice of denying common rights and privileges to a considerable segment of the population. At the very least, it would highlight the intolerance that underlies the opposition to gay marriage. For some people, that kind of spotlight is what is required to show them the questionable moral stances they have adopted.

Monday, February 21, 2005

As Roger Daltry said, "Who are you?"

Identity theft has been in the news today because of ChoicePoint's recent release of sensitive data to scammers. The biggest threat posed by identity theft seems to be that someone can obtain a credit card with your name and social security number. When the bills go unpaid, collection agencies come knocking on your door. Often that's the first you learn that your identity has been stolen.

The problem that gets addressed in public discussions is how to better protect your personal information, or how to improve automated identification procedures. This misses what seems to me an obvious solution. The problem is instant credit.

Instant credit allows you to call or write to a credit card company and immediately be approved for a new card. Is this really necessary? You still have to wait for the card to be mailed to you, so it's not really instant. For an extra day or two of waiting, we can virtually eliminate instant-credit related identity theft.

The solution is really very simple. In order to initiate any financial relationship, your identity has to be verified in person by a responsible party. Any notary public can serve this purpose, and banks might perform this function for existing clients. The procedure is straight-forward:

  1. Obtain an application form for the account you wish to create.
  2. Hand the (filled-out) application to your identity verifier, along with photo ID or other positive identification.
  3. The verifier fills out the remainder of the form, including an authorizing mark, and sends it to the institution holding the new account.

This establishes a chain of identity through a trusted verifier, so that the financial institution has good reason to believe the presented identity.

There's an obvious benefit to banks in this scheme: identity verification fees. There's a greater reason why this is unlikely to be adopted, in fact there are two. The first is that instant credit benefits financial institutions, since it encourages people to open new accounts, often incurring sizeable interest payments. The second is liability, in that affixing your institution's mark that an identity is valid can lead to civil or criminal penalties if that identity proves false.

If we credit financial institutions enough to believe that their desire for profits is tempered by their desire to protect their clients and society in general, the liability problem remains. This can be ameliorated by covering institutions as long as they have practiced due diligence. Because eliminating instant credit and establishing formal identity verification would require new legislation, this due-diligence protection could easily be included in the same bill.

Instant credit is, ultimately, a product of our society's desire for instant gratification in general. People need to become aware, however, that where their personal finances are concerned they should be more patient. With a minimal decrease in convenience, we can achieve a great increase in security, and identity theft can be made considerably more difficult.

Raoul Duke Checks Out

Today the Gonzo flag flies at half-mast. The greatest proponent of the art of Gonzo Journalism is dead, by his own hand. For one who lived as recklessly as he did, it is perhaps fitting that he was directly responsible for his demise. We've lost a great writer, if not a great man. His flagrant disregard for the standards of decent human behavior perhaps made his style of writing possible in the first place. When the journalist is at the center of the story, that story is all the more compelling when the journalist acts like a swine.

That's not to say that Dr. Thompson was a bad person at heart. He was a rebel, to be certain, but showed a concern for the state of humanity and the ideals of justice. What evils he might have perpetrated were done against individuals, usually small-minded money-grubbing individuals. This does not compare with the evils of those he reviled: the corrupt politicians, sleazy developers, and overzealous hypocrites of all descriptions.

My first introduction to the works of Dr. Thompson was the film adaptation of Fear and Loathing in Las Vegas. After seeing that, I had to read the book. At that point, I was hooked. I've been working my way through his books since, half the time hearing Johnny Depp narrating in my head.

It saddens me to know that what exists now of his work is all that will ever exist. The only consolation is that what he's written holds up well to re-reading, so while the man might be gone, I'll still be able to read him for many more years.

Saturday, February 19, 2005

Deadly Quackery in Brazil

On the off chance that there's someone reading this who doesn't follow James Randi's weekly commentaries (, you should read his current entry about a recent episode of "Primetime Live".

ABC-TV should be ashamed of themselves.

Friday, February 18, 2005

Courting Change, or Federal Courts get Classy

It's fairly rare that I agree with President Bush, but I feel it's appropriate to give credit where it's due. In this case, I mean the just-passed legislation on class-action lawsuits. It isn't necessarily the ideal solution, but it looks to be at least a step in the right direction.

I'm not "anti-consumer" (I'll save my rant about the use of the word "consumer" for another time) or "pro-big-business," but there were certainly aspects of the previous system that did not make sense. In particular, when the plaintiffs come from different states with different consumer-protection laws, the only state laws that can be universally relevant are those of a state in which the defendant is located. Anything else is fundamentally unfair.

We cannot expect judges to be expert in the law of jurisdictions outside of their own. State courts have as their purview the laws of their states, which might differ substantially from the comparable laws in other states. An aggrieved plaintiff and a defendant whose interaction had nothing to do with a state cannot adjudicate their differences under the laws of that state, but must rely on the home-state courts of one of the parties to the suit.

When potential plaintiffs span multiple states, there are three sensible options. The first is to try the case in the defendant's home state. If this is not feasible for some reason, then the appropriate jurisdiction is in the Federal courts under Article III, Section 2 of the Constitution. The only other sensible option is to break the class up into smaller classes each of which has plaintiffs from a single state, and pursue separate cases for each class.

The current legislation is more restrictive than this, but it makes the default jurisdiction Federal, which is appropriate for "Controversies...between Citizens of different States," which is arguably the most relevant jurisdiction. If the Federal courts are unwilling to take these cases, or if their judgements are not equitable, that is a separate matter which should be addressed. Using the claim that Federal payouts to plaintiffs are too small as an argument for moving suits to inappropriate jurisdictions is spurious, at best.

Given that roughly a quarter of the House Democrats (50 of 201) voted for this legislation, along with over 40% of Senate Democrats (18 of 44), it seems likely that many in the Democratic party view this issue in a manner similar to that outlined above. Changing jurisdicitional rules is a significant step, and requires overcoming a fair amount of inertia. Hopefully, this will be but the first step towards a completely rational basis for determining the jurisdiction of class-action lawsuits.

Wednesday, February 16, 2005

Making 'Em Pay

With the trials that are the fallout of recent corporate scandals occupying the headlines, many people are gleefully watching to see long prison sentences handed out to the guilty. While this is understandable, given that the alleged crimes resulted in a lot of people losing a lot of money, there is also a sense of "getting back at the wealthy," and this tends to cloud a larger issue. Specifically, should these people be going to prison?

I don't mean to question whether corporate criminals should be punished. Clearly, a crime should be punished, especially when it harms a large number of people. However, as satisfying as it might be to lock corporate criminals away, does this serve the public interest?

Let's consider what purpose prison serves. There's obviously a punitive element to it, but there's also an element of self-defense. By putting someone in prison, society is protecting itself from the danger that person poses while at liberty. It is, in fact, somewhat expensive to incarcerate people; for violent criminals society deems this expense justified by the greater overall safety that results from these criminals' imprisonment.

Is this expense justified for corporate criminals? Who is going to be shot by them? What windows are going to be broken? How many houses are going to be buglarized? Why, in short, should society spend money to punish them?

If someone has gotten rich by defrauding others, it seems logical to punish him by removing his riches. Obviously, the ill-gotten gains should be returned to society (and, if possible, the victims), but there is no need to stop with simple restitution. Fines can be an effective punishment, especially to those for whom money is a primary motivation.

These fines would have to be sufficiently high to be punitive, and a set scale of fines for particular crimes clearly won't do. What might be severe punishment to one person, such as Martha Stewart, will be inconsequential to another, such as Bill Gates (not to imply that Mr. Gates is guilty of any crimes). There is some fine, however, that will make Bill Gates take notice, and cause a severe disruption in his life.

This principle of using fines more heavily where we currently use prison doesn't only apply to the wealthiest criminals. Crime at all levels is often motivated by economics. If a crime becomes unprofitable, then people will tend to stop committing it. Perhaps not completely, but we would expect the rates to decrease substantially. Certain minimum fines could be established for, say, selling drugs that account for not just the value of the sale that led to the arrest, but the estimated value of the likely sales that were not caught. Basing these fines on statistical data is in fact preferable to attempting to set a specific fine for a specific individual, since the latter lends itself to charges of bias, profiling, and presumed guilt.

While possibly not as satisfying as prison sentences, truly punitive fines can better serve the public interest. Instead of paying money to punish a criminal, society can receive money for that punishment. In addition to the direct savings (and increase in revenue), we might expect crowding to be less of a problem in our prisons. Minimum-security prisons might be essentially eliminated, as well, or converted to more secure facilities more easily than new ones could be built. In all, it seems more sensible to punish non-dangerous criminals in their pocketbooks than in prison cells.

Monday, February 14, 2005

You Mean You're Actually Reading This?

Don't expect frequent updates to this blog. That seems like as good an introduction as any, since I don't intend to keep a "normal" blog where I feel obligated to post something every day, however prosaic. This space serves two basic purposes: to gratify my ego by imagining that someone is actually interested in what I write (as, I suppose, are most blogs), and to encourage myself to actually write something every now and then.

What should you expect to see here? Mostly, when I write it will be relatively brief opinion pieces, though I might throw in the odd random thought that amuses me. I also intend to post the occasional essay (that is, something for which I've actually done some research), but then I'm sure you know what they say about good intentions. I won't be writing about my work, nor will I be writing about my private life. I'm not paid to do this, so when I post it'll likely be in the evenings or on the weekend. There's an atom feed, if you're the obsessive type, but it's probably simpler to check in once a week or when you're bored.